By Associate Attorney Danielle Nodar
There are plenty of things new parents need to tackle on their to-do list to provide the best environment and future for their child. However, one big thing that often gets overlooked is planning for the unexpected with estate planning. Some of the factors new parents should keep in mind when considering estate planning are:
1) Naming a Guardian for Minors
One of the most important considerations a parent can make is naming a legal guardian for their minor children. A guardian is the person who will assume responsibility for all aspects of your child’s care if they are under eighteen when you pass away. This person will make all medical decisions, educational decisions, and step into the role of the parent in the eyes of the law.
In North Carolina, the only way a parent can designate a guardian is through their Last Will and Testament. A guardian named in a will is usually appointed by a court unless the person is unfit or incapable. Without a named guardian in a will, a court chooses the guardian based on its determination of what is in the best interest of your child. This may result in loved ones arguing over your children or the guardian being someone you would not have chosen.
2) Managing Inheritance for Minors with Trusts
If you leave assets outright to a minor child, those assets will be kept in a custodial account to be managed by a surviving parent or legal guardian. The adult in charge will manage the money for the child’s benefit until the child turns eighteen or twenty-one and inherits the remaining assets outright. Even when a child reaches the age of majority, many parents worry about a child’s ability to manage finances on their own, especially if it is a large amount of money being inherited. To have more control over your child’s inheritance, many parents set up a trust for the benefit of their children. Parents can create a trust with either 1) a revocable living trust, which is a separate trust agreement that is funded by the parent with their assets during their lifetime or 2) a testamentary trust, which is created in a will and only goes into effect at the death of the parent.
Both types of trusts allow the parents to name a Trustee to manage any inherited assets for children until the child inherits outright at a later age, such as twenty-five, for example. The Trustee will manage the assets and make distributions of the funds for your children’s health, education, maintenance, and support according to the terms of the trust. You can determine how much discretion you give the Trustee is managing the trust, and you can also provide them with clear guidelines of what are permissible expenses.
3) Updating Beneficiaries on Financial Accounts
If you have accounts that allow you to name a beneficiary, such as life insurance, retirement, or investment accounts, those funds will automatically go to the named beneficiary, even if your will names different beneficiaries. If you are creating or updating your will to include children, it is important to review your beneficiary designations to make sure that those assets will go where you want them to and that your plan works with both your will and beneficiary designations.
4) Updating Your Living Documents
Another key part of estate planning is naming who would make legal or medical decisions for you in an emergency where you cannot make those decisions for yourself. By naming agents under a healthcare power of attorney and durable power of attorney, you can ensure that if you become incapacitated, someone you trust can access your funds to care for you and your child and make medical decisions for you until you recover.
5) Considering Life Insurance
Many new parents consider life insurance to ensure funds are available for your children’s needs if they pass away while their children are still young. There are many factors to consider when looking into life insurance but finding a trusted insurance professional to assess your family’s specific needs is the first step in the process. Finally, if you do create a trust for your child, you can name the trust as a beneficiary of the life insurance policy, which would allow those funds to be used by the Trustee for your child’s benefit according to the trust’s terms.
If you have questions about how to create or update your estate plan to best protect your family, please call Jesson & Rains!
By Attorney Kelly Rains Jesson
Naming a guardian for minor children is one of the top reasons why a parent engages in estate planning. The only way to name a guardian for a minor child in the state of North Carolina is in a will (N.C.G.S. § 35A-1225(a) references “last will and testament” but does not mention any other document). So, making it a Facebook status or writing it on a cocktail napkin before a trip is not going to cut it.
Even though the statute states that the guardian named by the parent is a “recommendation” that serves as a “strong guide” to the clerk, court history shows that the clerk almost always will appoint the guardian named in the will, unless it’s not in the best interests of the child (for example, if the named guardian was a drug addict, felon, or incapacitated). The North Carolina legislature wrote that “[p]arents are presumed to know the best interest of their children.”
We recommend that parents agree on their choice of guardian in the event they both pass at the same time. If they name different guardians in their respective wills, there could be a dispute over who would serve, which defeats the purpose of naming a guardian in the will in the first place. However, a long-surviving spouse may update his/her will after the first spouse passes away. If that is the case, the court will appoint the guardian named in the will with the latest date.
If you or someone you know needs help creating a will and naming a guardian for minor children, give Jesson & Rains a call!
As the summer comes to an end and we start switching gears, there are some important things to remember for your college student. With the chaos that accompanies getting them back to their college campus, it can be easy to forget about your child's healthcare documents.
It is important to consider asking them to execute healthcare documents naming you agent. Once your child is 18 years old, you may not be able to make medical decisions for them or access medical documents. If you have a child returning to college this Fall, consider giving Jesson & Rains a call to consider your options. It is never too soon to start thinking about being prepared for all possibilities, and you can have peace of mind knowing that you are prepared.
Parents living longer than ever. The first generation of baby boomers have turned 70. Cases of Alzheimer’s and dementia are on the rise. Health care costs are increasing.
We oftentimes get calls from adult children who want to hire us to “get power of attorney over their parent” to help them with bills and medical care. Unfortunately, that is not the way a power of attorney works. While the adult child can certainly schedule the appointment with us and even pay for the legal document, it is the parent’s document, and the parent is the client. Attorneys are confined to the parent’s wishes.
If the elderly parent already lacks the capacity to enter into a contract or make legal decisions, or if the parent does not understand the effect of the power of attorney document, it is too late for the adult child to be named as their parent’s agent under a power of attorney. If the elderly parent lacks capacity and needs help handling his or her affairs, the adult child may need to become legal guardian.
What the differences between Power of Attorney & Guardianship?
With a power of attorney, the principal names an agent to act on the principal’s behalf in the event of incapacity. It enables the agent to handle the principal’s business and financial affairs. A health care power of attorney is a separate document that names an agent to act on behalf of the principal for medical decisions. The agent’s powers are very broad unless expressly limited by the documents. However, there is nothing preventing the principal himself from conducting business on his own.
With guardianship, a court makes a finding that the principal lacks capacity and removes that individual’s authority to make decisions. The court appoints a guardian to make those decisions from then on out. Once an institution, like a bank, learns of the guardianship, it would not be permitted to listen to the principal’s instructions – only the guardian’s. The court’s order is permanent until the principal regains capacity and a subsequent hearing is held to restore his or her rights. Guardians have to file reports and/or yearly accountings with the court.
As you can see, guardianship is not to be taken lightly. A court’s adjudication of incompetency essentially strips away a person’s rights, which is why we recommend getting power of attorney documents in place before capacity becomes an issue. It is also more work on the guardian’s part due to the court proceedings and reporting requirements. Readers should not only get their documents in place but talk to their parents or other elderly loved ones and encourage them to visit with an attorney before incapacity becomes an issue.
 There are three types of guardians: guardian of the estate (authority over property), guardian of the person, or general guardian (both estate and person).
 Unless the court orders a limited guardianship allowing the principal to retain certain legal rights and privileges to which the ward was entitled before the ward was adjudged incompetent.
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