Having a child is both a joyous and challenging experience. Months of planning culminate on that special day when a new member of your family finally arrives. Preparations such as the purchasing of clothes, furniture, and other baby items are rather obvious and enjoyable tasks. However, there is a crucial piece of planning that is often overlooked by many expecting parents. No matter a parent’s age, health or financial status, having a properly drafted Will is vital.
A common misconception is that a Will merely directs the distribution of your assets upon your death. In realty, a Will may, and most often does, contain many other instructions to be carried out in the event of your passing. Most important to you, as an expectant parent, is the care of your child.
If you were to pass, obviously your spouse would have sole responsibility over your children. However, in the unfortunate event that you both passed, whom would you want to raise your son or daughter? Making that decision is only the first step; ensuring that it is carried out is another. The latter is done through the preparation of a Will.
What if both you and your spouse were to expire leaving minor children but without having made Wills that include appointments of guardians? The decision as to who will care for your child until he or she becomes an adult will be left to the courts.
This is a troublesome proposition when you consider that a judge will have no knowledge of your personal relationships and preferences. In the absence of a Will, family members receive a preference as to guardianship. But what if, instead, you have a close friend that you would prefer to raise your child? Also, your closest relatives (often your parents) may not be the persons you would choose to raise your child, preferring instead, for example, a sibling or cousin.
The matter can be further complicated when relatives are put into a position to “fight” for custody. What if both your and your spouse’s parents apply for custody? While everyone may have good intentions, that situation could escalate into a battle between families.
All the above questions could be answered and the above pitfalls avoided with the drafting of a Will. Along with provisions relating to the distribution of your assets, a Will can appoint individuals to serve as your children’s (and even your pets’) guardians. Given the above, it is easy to understand why this simple, yet important provision, should not be overlooked. In addition to a Will, expectant parents may also want to consider drafting a durable power of attorney and an advanced health care directive.
In a power of attorney, an individual grants another person the power to act on his or her behalf in matters both legal and financial in nature. A durable power of attorney remains in effect even if the grantor becomes mentally incapacitated, an important feature if you consider that the alternative would be to bring a costly incapacity matter where someone files a legal claim to declare a person mentally incapacitated and to have a guardian appointed for that individual.
Similarly, an advanced health care directive (or living will) both appoints an individual to make medical decisions on your behalf if you are no longer able to so and also expresses your preferences if faced with certain medical conditions. We all remember the Terri Schiavo matter and the toll that took on her loved ones. A living will helps to avoid such a fiasco. When you cannot, a Will, a durable power of attorney and an advanced health care directive express your wishes and provide answers to questions on your behalf. In doing so they also alleviate stress and possible discord among your remaining family. For those reasons alone, the importance of having these documents in place should not be overlooked.
Should you wish to obtain more information on this subject or schedule a consultation regarding the drafting of a estate planning documents, please do not hesitate to contact us.
*The above is intended for informational purposes only and does not constitute legal advice, legal counsel nor legal representation.