Contrary to popular belief, and the majority of discussions surrounding estate planning in 2012, estate planning is not all about taxes. It is not just for the rich, the elderly or the terminally ill. Even though many people treat estate planning as an "elective service," it really isn't. It is one legal service that everyone, one day, will need, and proper estate planning becomes significantly more important when minor children are involved.
A very good friend of mine was raised from the time she was 7 and her brother was 5 by her mom's cousin and her husband. Her mom died from cancer and her father died from liver disease within a year of each other. They were poor. They lived in a tiny rented apartment. They had not done any planning. As a result, she and her brother essentially went home with the first family members who offered to take them in.
This was a very sad situation, but she learned from her experience. Right after her son was born, she and her husband hired an attorney. Each drafted a last will and testament and powers of attorney to ensure they made the decision as to who would care for him in the event neither of them was there.
There are thousands of books about parenting, from prenatal planning through getting the kids off to college. Parents place great importance on all kinds of different things according to this or that parenting style, but who would place such a level of importance on the children if they weren't there to do it? Who is in the best position, according to those parents, to care for their children in the event of their death or incapacity?
In reality, like with my friend's family, someone would probably be willing to step in and care for the minor children. However, like in her situation, they would have to go through the necessary procedures of petitioning the court to be appointed as guardian of the children and the person who is ultimately appointed may not necessarily be the person whom the child's parents would have chosen.
There are so many things to think about when choosing someone to care for your children if you aren't there. Does that person share similar religious beliefs and family values as the parents? How old are the potential caregivers? How many children of their own do they have or had they decided not to have any children of their own?
Under Washington law, parents can appoint someone to serve as guardian of their children in their last will and testament. A guardian can also be named in a durable power of attorney, which will allow a guardian to step in and care for the minor children in the event a parent is incapacitated.
Having the conversation with the adult of your choosing takes the burden off other friends and family members to try to guess what you would want them to do. It also leaves one less difficult thing for the children to have to face.
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