2010-06-04 / Columnists

Spotlight on Elderlaw

Why Estate Planning Is Important For Young Parents, Newlyweds And Young Singles:
Commentary By Nancy J. Brady, RN, Esq. And Linda Faith Marshak, Esq.

Much of what we (as well as other attorneys practicing in the field of elderlaw and estate planning) write about focuses on the needs of “baby boomers” and senior citizens. While that information is often timely and pertinent, certain topics don’t apply exclusively to those age groups. There are many examples of legal documents that are necessary for younger adults who are married with minor children as well as younger adults who are single having never been married or who are widowed.

This article will address questions frequently asked by younger clients.

Am I too young to need a Last Will and Testament?

If you are over eighteen years of age, the answer is NO! If you are the parent of minor children a Will is a necessary document. It is a legal declaration of who YOU would like to raise your children, and protect their assets in the event both parents are deceased.

Naming godparents during a religious ceremony provides no legal basis for the issue of who will raise your children.

Naming guardians in your Will does provide for your children’s future care. Additionally, in the Will, trustees must be named to manage the assets left to your children to cover the cost of their care, education, and health expenses. Note that a loving caretaker may not always make a good money manager and that these important jobs may be given to different individuals. These are your decisions, but only if you formalize them in a written Will.

If you have a child with special needs who is receiving, or may be entitled to receive government benefits at the time of your death, those benefits could be jeopardized. If your disabled child inherits from you through your Will, either before or after he or she is receiving support from a government program, eligibility may be denied, or existing coverage or services may be lost if a sum of money is inherited. How can this be avoided? By executing a Will with special language, assets can be set aside for the benefit of that child without affecting government benefits.

The establishment of this testamentary trust in the Will, allows the assets to be placed in a special account in the trust name (not in the name of the disabled individual) and a trustee is named to manage the assets, using the monies only for the benefit of the disabled person.

Note: if an individual dies without a Will, the laws of intestacy in NY State apply and a surviving spouse will inherit $50,000 plus one half of the deceased spouse’s estate with the children sharing the other half.

In addition to this distribution being contrary to what you may have desired, it will result in disruption of any benefits a disabled child of yours may be receiving, since in that case the child will receive his or her share outright instead of in a trust with the necessary language to prevent this situation.

Lastly, if you have never been married, and die without a Will, the laws of intestacy will also apply, but your parents will inherit, provided they survive you. This may be what you want, but if it’s not, it may have unintended results – especially since as our parents age, they may be divesting themselves of assets as part of their estate plan, or long term care planning. It is your decision how your assets pass on your death, but only if you have a Will for those assets that may not pass outside of probate.

Am I too young to need a health care proxy?

The answer is, again – if you are over the age of eighteen, NO! This document provides for an agent (a person you choose) to make health care decisions for you ONLY if you are unable to make them for yourself. This document can, if you wish, document specific instructions from you – including your wishes regarding artificial nutrition and hydration, organ donation, and other end of life issues. Most people dislike thinking about their own incapacity or death, as was most likely the situation in Florida when Terri Schiavo’s parents and husband could not agree on her end of life care. A validly executed health care proxy will prevent those unfortunate delays in your wishes being followed.

Am I too young for a Power of Attorney?

The answer is once again, NO! A power of attorney is a document in which you appoint one or more people (agents) to stand in your shoes to make financial decisions for you. While it’s true that power of attorney may not be required to access most jointly held assets, many situations do require a power of attorney, one example (among many) being the sale or transfer of real property.

Without a validly executed power of attorney form, your family will have to petition a court to appoint a guardian for you, and the decision as to who that agent is will not be yours. This proceeding will also be time consuming and expensive. Make these decisions for yourself!

What if someone is “babysitting” for me and there is an emergency?

Under a law passed in New York State in 2005, the parents of minor children can now permit another person or persons to assume specific responsibilities for their children. This limited parental “power of attorney” legalizes the common practice of parents writing short notes of permission for another to act on the parents’ behalf where children are concerned. The law provides direction as to how to designate a representative, who can be named as a representative and for how long a period of time.

How to designate a representative:

There is no requirement for a formal document. The parent can simply execute a note containing certain information. If the parent wants the designated representative to be able to act for thirty days or less, the note must include the parent’s name, the designated person’s name, the child’s or children’s names, and the parent’s signature and date of signing.

If the parent wants a representative to continue to be in place for up to six months, in addition to the information detailed above, the note must contain the address and telephone number of the parent; the address and telephone number of the designee; the date of birth of each child; the date of commencement or event that causes the designation to be active; written consent of the representative; a statement that there is no court order in effect which would prevent the parent from designating an agent. The signatures of the parent and the designee must be notarized. If any of these requirements are not met, the writing can still be used for thirty days if those requirements are satisfied.

Who can be designated:

Any adult person can be named as a representative, or designee, even if the person is not a relative.

What parental duties is the representative allowed:

The representative named in a writing as detailed above is known as a “person in parental relation,” and can perform many of the duties of parents, including enrolling a child in school, and responsibility for most schooling activities.

The designated representative can also consent to or refuse routine medical care, immunizations, dental work, and mental health therapy. Certain medical procedures known as major medical procedures cannot be consented to by a designee, and will continue to require consent or refusal by a parent or legal guardian.

Limitations:

The law limits designation of another person to a maximum of six months. The same designee can, however, be named in a subsequent writing, and there is nothing in the law to prevent a renewal immediately upon the expiration of the six months for the initial writing.

If the parent becomes incapacitated, the designation ceases to be in effect. Additionally, if there is a court order designating both parents as joint custodians (as in divorce proceedings), both parents must sign the designation.

Either parent can revoke the designation orally or in writing at any time, by notifying the designated representative, the school, or the medical provider.

For more information about these and other pertinent topics, as well as our upcoming Seminar dates, please contact the law office of Brady & Marshak, LLP at 718-945-7777 or 718- 738-8500.

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