Estate Planning with Young Children

Many young families put off estate planning – some because they are healthy and not ready to think about their own mortality; some because they think they can’t afford it; but most because they feel like their modest assets don’t yet warrant investing in a plan.

But for parents of minor children especially, an estate plan properly ensures that your children will always be in good hands, financially, emotionally and physically.

A good estate plan for a young family will include a Will in which you name a guardian to care for minor children (the Guardian of the Person) and naming someone to manage the assets for the children until they become adults (the Trustee).

Naming a Guardian for Minor Children

If something happens to one parent, the other parent typically will continue to raise the children. But what if something happens to both of you? Or what if you are one of the 13 million single parents in the United States? If there is not a parent who can care for the child, a Guardian must be appointed by the Court. If you have not named a Guardian for your minor children, the Court will have to appoint someone without knowing your wishes, your children or your family members. The Guardian is entrusted with all of the power and responsibility of a parent and makes important decisions about the child’s upbringing, schooling, religious training and medical treatment, so it is wise to nominate someone who knows your children and who will accept this role if called upon to do so.

Naming Someone to Manage Your Children’s Inheritance

If your estate plan includes a Trust, you can designate the individual who will act as Trustee, and will be responsible for managing your assets on behalf of your child.  This individual (or individuals) can use the assets which you have left to your child to pay for the child’s heath, education, maintenance and support, but you can restrict at what age the child inherits. You can even include provisions to allow your child to inherit early if they graduate from college or are working full time.

If your estate plan does not include a Trust, the Court will appoint someone to oversee your child’s inheritance.  Any expenses related to managing that inheritance, such as attorneys, financial advisors, and tax preparers, will cost money, which will be paid from the inheritance.  The child will receive their inheritance when they reach 18.

Even if you are married, the Court may end up appointing someone to oversee your child’s inheritance if any of your assets are separate property. In a recent case, a father of a young child passed away without an estate plan in place.  Because he had one child, the laws of California awarded half of his separate property (a home he purchased before marriage) to his wife, and half to his two-year-old son.  In the state of California, a minor is not permitted to own real property. Therefore, a Guardian had to Petition the Court to be appointed to manage the boy’s assets until he turns 18.  The Guardian will have to report the status of the assets to the Court every year, incurring thousands of dollars in attorney’s fees that could have been avoided through proper planning.

The attorneys at Drobny Law Offices, Inc., want your estate plan to grow with you and your family.  For that reason, we offer routine amendments at no charge – that way, when your little ones are not so little anymore, your estate plan can adapt to accommodate you and your family.

Medical Consent Authorization for Minor Children

Ask yourself: Do you ever go on vacation and leave your children with family? Do you leave your children with a babysitter to go to dinner or to see a movie? Do you allow your children to stay at grandma and grandpa’s house or at a friend’s house for the weekend?

If you answered “yes” to any of the above questions, have you ever considered what to do in a medical emergency when you are gone?

  • I. PROBLEM

If your minor children are ever taken care of by individuals other than the legal guardians, those individuals cannot make medical decisions on your minor child’s behalf. If a medical emergency arises and you are not available, the individual watching your child has no authority to make medical decisions for your minor child.

  • II. LAW

Pursuant to California Family Code Sections 6903, 6920 and 6921, parents may provide medical consent for their minor children. Legal guardians have generally the same rights as parents to medical consent, with some restrictions. Cal. Family Code §§ 2353 and 2356.

A babysitter, relative, adult sibling, or friend does not have the authority under California law to make a medical decision on behalf of your minor child. The doctor or dentist cannot care for your child without the proper authorization from the parents.

Moreover, under Federal law, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) provides privacy rights for one’s medical records, so that no one else can have access to another individual’s medical records. For a minor, the parents have access to the minor’s medical records. However, no other person, even if they are taking care of the minor, can have access to the minor’s medical records to make an informed medical decision on the child’s behalf.

  • III. SOLUTION

There is a simple solution: medical consent authorization.  Fortunately, California law allows parents to grant the authority to make medical decisions on behalf of the minor child to the temporary caregiver.

A parent or legal guardian may give any adult written medical authority to consent to a child’s medical care. The third party’s authority is limited to the consent authorized in writing. This authorization can be in the form of a notarized letter outlining the authority of the third party or a more formal medical consent authorization.

  • IV. CONCLUSION

We have prepared a Medical Consent Authorization pursuant to California Family Code Section 6910.  By signing this form, you can authorize a temporary caregiver, relative, babysitter, or friend the ability to make medical decisions for your minor child while you are unable to do so.

Please go to our website: www.drobnylaw.com, where you can find a form for you to complete and use as a medical consent authorization.

If you are ready to discuss your estate planning needs with one of our 6 attorneys, please call our offices at (916) 419-2100. We appreciate the opportunity to be of service to you and your family.

This article was authored by Attorney Emily A. Foehr and Associate Attorney Hannah A. Shakin. To contact Emily, email her at eaf@drobnylaw.com.  To contact Hannah, email her at has@drobnylaw.com or call (916) 419-2100, ext. 229.

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