College Kids in Trouble! Draft Your Child’s Health Care Proxy

Ah, the Ivory Tower, where high school kids aspire to escape to, and parents best hope for 4 years of peace and quiet. But with independence comes responsibility: Travel, driving, concerts, and protests. And drinking. Lots of drinking. And then comes a horrible injury or hospital admittance, followed by a parental realization: You are not allowed access to your adult child’s health care information, and cannot make decisions regarding their health care.

 

In most states, the age of majority is 18, and once he or she moves out of his or her parent’s residence they are considered an adult with all of the privacy rights that inure to adults.

 

The only individual who, by default, has access to your health care information and the ability to make health care decisions for you if you are unable is your spouse. This is a rude awakening for a parent who gets a call stating their child has been admitted into a hospital for over-drinking, or a car crash, or some other horrible incident. Or worse, the child can’t be found and the parent, presuming the worst, begins contacting emergency rooms. Again, the parent has the same right to the same information as a stranger: A hospital may confirm the child has been admitted, but will not share medical status. Then, once the parent finds their injured child, they need to initiate a Guardianship Proceeding to make anything other than the most critical of health care decisions. This expensive legal process is often taking place during one of the most frightening moments in a parent’s life.

 

This scenario can be avoided both legally and practically. Legally, parents should have their child execute a Health Care Proxy naming them as the child’s Health Care Agent before the child goes to school. This allows the parent the ability to both request the child’s health care information, and make urgent health care decisions, even from afar. The Health Care Proxy may even be shrunken to pocket-size, so the child can keep it in his wallet or her purse.

 

For practical purposes, a child should have an informal ICE [“In Case of Emergency”] card in his or her wallet that includes their parent’s names, address and phone numbers. In addition, most smart phones have an “Emergency Contact” function that is easily accessible without needing the phone’s password to access.

 

 

Make sure to prepare a Health Care Proxy for your child before he or she leaves for freshman year, and have them provide discrete means for you to be contacted in case unforeseen actions take place.

 

 

DISCLAIMER: Attorney Advertising. Please note that prior results do not guarantee a similar outcome. This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

 

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Second Wives: Reapers of Sorrow, Destroyers of Family Wealth!

In a world where our assets are constantly under threat from usurious taxes, government largess, financial predators and rapacious offspring, there is still NO worse threat to intergenerational family wealth than a second wife.

 

People get married the first time for any one of a number of reasons: Family pressure, filling a void, the urge to have children, an inexplicable desire to emulate the lives of Al and Peg Bundy and passion.  But these first marriages often end, sometimes with children left in their wake, and are replaced by a second marriage based on love, devotion and emotional security.

 

In these second (or third) marriages, often one spouse tends to be significantly older and more financially secure than his second spouse.  As a result, there is the pressure exerted on him by his wife to provide for her upon his much earlier passing, and the realization that his needs are being provided for as he reaches old age (and yes, he will most likely need his wife quite a bit). Quite often, the remarried parent may not be as close to his children from the former wife and may even acquire new children. As a result, the children begin to distrust their “evil step-mother”, though at some level they are glad they do not need to care for their aging father. Simultaneously, and the children still hold out hope they shall receive some of his estate when he dies.

 

And on that note…

 

…I have had MANY consultations where second wives manipulate, berate and verbally insult their husband if his estate plan does not leave her every last penny. And, much to her credit, she usually wins: Whether out of guilt, shame, or a desire to escape the assault and just be done with the estate planning process, the husband concedes to her demands. It is an amazing spectacle to behold, and particularly difficult when they have not discussed matters beforehand and I am effectively relegated to a Spousal Finances Therapist. I have seen this scenario play itself out almost identically on countless occasions. These sessions are not easy, and I typically reaffirm many, many times with the husband whether he is okay with his final decisions, to which he usually convinces himself this is what he wanted all along…even when he obviously did not want this outcome initially.

 

I suppose there is some level of social commentary that should be interjected here to place a human face to this enduring oddity of successive nuptial relations. First, the second wife really is taking care of an often far-older spouse and genuinely does deserve financial allowances for this work. At another level, women are generally much more in tune with their financial requirements and fears and make sure to protect themselves (preservation with a side-order of greed), whereas men maintain a level of meat-headed bravado that allows them to think they shall always overcome adversity (confidence with a touch of foolhardiness), and are thus fine with the end result. And, let’s face it, the former wife is not oblivious as to what is going on in her ex-husband’s new marriage, may herself be remarried in a similar situation, and will also maintain a focus on providing for her offspring upon her passing.

 

The best way to protect against the second spouse winning an “All In Bet” for dad’s estate plan, is for the children to follow a simple three step process:

  • insist that a prenuptial agreement is essential to maintain his children and grandchildren’s well-being,
  • discuss how trusts naming other family members as beneficiaries and trustees can avoid conflict both during the marriage and when he is gone, and by all means
  • attempt to maintain healthy relationships and communication with dad and his new wife, showing her the respect she deserves for providing the care that might otherwise fall upon you.

 

 

 

DISCLAIMER: Attorney Advertising. Please note that prior results do not guarantee a similar outcome. This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

The Roadmap to Your Family Should be in Your Will

The cornerstone of Probate, leaving your estate to whomever you want, is almost paradoxical since the process is not as easy as most people think. To the great surprise of heirs that are listed in the Will, the decedent’s descendants (or next closest relatives) must be put on notice during the Probate process to validate the Will. The very concept of the requirement of placing the next of kin on notice is foreign to most clients: Why does a person’s nearest relative, who the Testator may have loathed, still have to be placed on notice of the Probate of the Will, even if that relative is being disinherited? The answer: Our estate laws allow your closest family members the right to fight the disinheritance. Yes, they may lose in court, but they are the only ones who can bring a valid lawsuit against your estate. Even more importantly, they MUST be found and informed of the Probate of your Will.

 

Many members of small families may not be in close contact with their nearest heirs, and may have never even met them. This tends to happen more often with foreign-born clients, loners, and people who have moved far away from the rest of their families. Using genealogists and private investigators may be very expensive but otherwise necessary. As a result, it is often significantly easier and cheaper  to have the Testator’s assets pass using trusts, transfer on death accounts, and life estates or joint accounts, thereby avoiding the need to identify these heirs (not to mention subsequently serving them personally).

 

A more frequent issue is when addresses of the nearest heirs are not known, or when a family member within the line of succession has predeceased the Testator. For Example: If a Testator has never been married, has outlived his or her parents, had no children, and has two siblings who have children of their own, it is a good idea to state all this information in the Will, and to say where these siblings and nieces / nephews  are living at that time:

 

Example:

I have never been married and have no children alive or deceased, naturally or adopted. My Father, Bart Starr, predeceased me in 1997, and my mother, Martha Starr, predeceased me in 2001. I am survived by my two siblings: Joseph Starr, with a current residence located at 123 Barker Street, Green Bay, WI, and Jennifer Favre, who lived somewhere in Murrayville, TX when I last spoke to her in 2006. I have no other siblings alive or deceased. Joseph has two children, Lesley Starr and Miley Starr. Jennifer has one child, Mickey Farve.

Placing this type of information in a Will benefits the Testator, the estate, the people to whom the Testator wants to leave the money and the future Probating attorney in the following ways:

  • Finding these heirs becomes much easier when the Testator passes away.
  • The court clerks can better identify the next of kin when comparing the Will to an heirship affidavit.
  • Ensuring the Petition has all relevant information regarding distributes.
  • Establishing proof of the Testator’s knowledge of the “fruits of his bounty” (I.e. closest family members otherwise entitled to his estate under Intestacy)

 

  • Name and identify all distributees and legatees in the Will, and include their addresses, if known, in the Will.

 

 

DISCLAIMER: Attorney Advertising. Please note that prior results do not guarantee a similar outcome. This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.