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Must-Have Legal Documents for Parents

April 02, 2019

The birth of a child creates new priorities and responsibilities.  Parents go into survival mode, structuring their schedules around feedings and naps, which later transforms into shuttling children to and from school, music lessons, sporting events, and other activities.  Somewhere in the shuffle, it’s common for parents to put off preparing a will until “things quiet down,” which in many cases will not be  until the kids are much older.  In the meantime, they cross their fingers and hope for the best.

Finding the right attorney who will address your concerns, explain the documents you need, and walk you through the steps needed to protect your loved ones can ensure a smooth and streamlined process.    

An estate plan should address two main questions: (1) Who will handle my affairs in the event of my incapacity? and (2) How will I provide for my loved ones in the event of my death?

At a minimum, parents of minors should have each of the following:

  • Will. This document permits you to name a guardian for your minor children, to care for and have custody of them in the event of your death.  It also permits you to name an executor to wrap up your affairs, and to direct the distribution of your estate.  If you have minors, it’s often a good idea to leave each child’s inheritance in trust, at least until the child reaches a certain age, with a responsible, trusted individual named as trustee to oversee the child’s inheritance in the meantime.  In many situations, it makes sense to include these details in a revocable trust, which is a separate document created in addition to your will, often used to avoid court oversight but ultimately accomplishing the same goal of providing for your loved ones following your death, usually for a period of several years.
  • General durable power of attorney.  In this document, you name another individual to serve on your behalf as your “agent” to handle your financial affairs.  “General” means it is not limited in scope (the way a real estate power of attorney would be limited to only real estate transactions), and “durable” means that the agent may serve on your behalf even in the event of your incapacity.  This document may either be effective immediately upon its signing, or effective only upon your incapacity, with a doctor’s note stating that he has personally examined you and you are unable to handle your financial affairs.  This is frequently used to help with bill paying and routine financial matters, but is typically broad in scope to avoid the necessity of having a conservator appointed by a court if you become incapacitated.
  • Advance medical directive. In Virginia, this document typically contains a “living will” section and a “medical power of attorney” section.  The living will section permits you to specify what kind of “end-of-life” treatment you would want in the event you have a terminal condition and no reasonable chance of recovering (frequent choices are either “prolong my life to the greatest extent possible,” or “no extraordinary measures”).  By specifying your wishes about end-of-life treatment, you relieve your loved ones of the burden of making that decision for you if the situation arises.  In the medical power of attorney section, you name an “agent” to make your medical decisions in the event that you are unable to do so.  In Virginia, the agent under an advance medical directive may only make decisions for you if two physicians personally examine you and determine you are unable to handle your medical affairs.  The agent may not contradict your wishes about end-of-life treatment as expressed in this document.

No two families are alike, and there is no one-size-fits-all approach.  Blended families (those in which at least one spouse has a child from a prior relationship) usually involve additional considerations, as well.

Decisions you’ll need to make during this process include:

  1. Who would handle your bill paying and financial affairs in the event of your incapacity? Name a responsible, trusted individual who would act in your best interest.  Then name an alternate or two – people who would serve in your agent’s place if he or she were unavailable.
  2. Who should make medical decisions for you in the event that you could not make them yourself? This should also be a responsible, trusted individual who would act in your best interest, but it doesn’t have to be the same person you named in question number 1.  The person who manages your finances may not necessarily be the same person you’d want making your medical decisions.  Once you’ve named an individual, name an alternate or two.
  3. If you were in a persistent vegetative state, for example, with no reasonable chance of recovering, would you want to be kept alive on life support, or let go and permitted to die naturally, with only the administration of medication as necessary to keep you comfortable?
  4. Who would you trust to raise your minor children if you were to die before they turn 18?
  5. Who would you trust to pay your final bills, funeral and administrative expenses in the event of your death? Who would you want to name as an alternate?
  6. Who would you trust to manage your children’s inheritances for them until they come of age? Who would you want to name as an alternate?
  7. At what age (if any) do you believe your children will be mature enough to handle their own inheritances?

When you meet with an attorney, it helps to come prepared with the answers to these questions.  Don’t attempt to do this on your own.  Using do-it-yourself estate planning websites or forms you found online increases the chance of making a costly mistake, and the stakes are too high to risk it. 

As a part of your estate planning, your attorney should provide customized written recommendations for how to title and designate beneficiaries for your assets and offer to assist you in making the necessary changes.  Avoid naming a minor child as the beneficiary of a life insurance policy or retirement account to avoid unwanted court involvement and delay.   Once the documents are in place and asset titling and beneficiary designations are completed correctly, enjoy the peace of mind that comes with knowing your loved ones are provided for and protected.

Jessica Hayes is a Pender & Coward attorney focusing her practice on estate planning and administration.

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