Estate planning for your child who just turned 18

Your child has just turned 18. He/she has just graduated high school and is probably off to college in the fall. Your child will always be your baby but in the eyes of the law, your child is now an adult.

This means that your child needs all of the estate planning documents that you do. Although you had the automatic right to make health care decisions for your son/daughter, you do not have that right now. Now your child needs his/her own health care proxy and living will. You do not have the right to see his/her medical records either. Before your daughter goes off to college, make sure that you have him/her sign a document called a “HIPAA Release” (named after the law that created a right to privacy about your medical records) that gives you the right to view her medical records.

Your son will also need a durable power of attorney that names you as his agent to act in connection with his financial affairs in the event he can’t. If he is in an accident and cannot speak or sign his name, the durable power of attorney will allow you to do his banking for him and make decisions for him until he can do so for himself.

Although it may seem strange to have a child make a Will, it may be necessary if that child has significant assets (maybe an inheritance from Grandma) and there are family issues. Without a will, unless your child is married, both parents inherit from their children.

Finally, since your child has reached the age of majority, he/she can act as a guardian to your younger children, if necessary. I’m not sure you want to give that kind of responsibility to a person who you barely wanted to give the car keys to just a year ago, but it can be a temporary solution to the guardian issue if you do not have another adult to whom you want to act in that capacity for your other children.

Dying Unexpectedly

Do you remember what your reaction was when you heard that Tim Russert had died? Mine was “he’s not that old!” In fact, he was 58 and in our society, 58 is not old. My father is 88 and there are plenty of people in their 90s still living.

And yet, every day, people die unexpectedly of heart attacks or in car accidents or who go to the hospital for routine surgery and there are complications that no one could foresee. Along with the grief, the family of the dying person needs to deal with the financial matters of the dead person and possibly family issues. When the family has no idea whether there is a will or where the insurance policy is located or who should get custody of the kids, the agony is increased several times over.

If you are in your 20s, 30s, 40s, or 50s, you are probably going to live a long time more. But you might not. Save your family the heartache of dealing with the personal and financial mess that will result if you die unexpectedly without a will. Give your family peace of mind and call an estate planning lawyer now.

Don’t go on vacation without completing your estate plan

Have you ever bought life insurance before flying or known anyone who has? Is flying safer than driving? Are you more likely to need an estate plan before you start your vacation than at any other time of the year? The answer to the last question is “no” but vacation time seems to bring out the urgency in many parents to get a will done before getting on an airplane.

If going on vacation is the push you need to call an estate planning attorney to get your estate plan done, then I’m all for it. Although you really don’t want to rush to get something, anything in place, chances are it will be better than nothing at all. On the other hand, if you think your estate planning is done if you just download a will form from the internet and fill in the blanks, then you may be unpleasantly surprised by the many unintended consequences your family will face.

Don’t forget that estate planning is not just getting a will done. There are other documents – a durable power of attorney, a living will, a health care proxy, and documents to appoint a temporary guardian for your children – that you need to make sure that your affairs are taken care of in case of an unexpected tragedy. Get some peace of mind before you travel, get your estate plan done.

Do you have a health care proxy and living will?

There is another case in Florida that echoes the Terry Schiavo case that gripped the national news in 2005. Terry Schiavo was 26 years old when she suffered brain damage and diagnosed with persistent vegetative state. She was institutionalized and kept alive by a feeding tube. Her husband and parents argued for 7 years in the court system about whether Terry Schiavo would have wanted to live in that condition. The problem was that she had never written down her wishes.

Now, a case in Palm Beach County is being reported that is similar. A 56 year old woman suffered a stroke, was diagnosed in a persistent vegetative state, and was put on a feeding tube and placed in a nursing home. Again, the husband claims that his wife would never have wanted to live like that and the parents oppose the removal of the feeding tube. She does not have a living will and cannot talk.

Very few people know when there is even the possibility that they might lose consciousness and go into a persistent vegetative state. If you want every medical measure taken in the event you lose consciousness, let your spouse and family know this. Put it in writing in a living will. Likewise, if you would not want a feeding tube under certain conditions, or wouldn’t want a breathing tube or CPR if your heart fails, let your spouse and family know that in a living will. You can have one document that appoints a person to speak for you when you cannot speak for yourself (a health care proxy), and a different document that specifically or generally states what treatment, if any, you want under different scenarios. The more general the instructions, the harder it is for your health care proxy to know what to do for you. The two documents can also be merged into one. Be sure to pick a back-up proxy in case your first choice is also rendered unconscious (you may be in a car accident in which you and your spouse are both seriously injured). Let everyone in your family have copies of these documents.

No one plans to be left unable to tell the doctors what kind of medical care and long-term case they would want if they could not speak for themselves. Do yourself and your family a favor. Get all of your estate planning documents properly done so your family is not left to scramble under the most horrible circumstances.

California Gay Marriage – Does It Affect Us Here?

Does the decision in California to permit the marriage of gay couples affect us in New Jersey? Not yet. Even if a gay couple travels to California and gets married there, when they return to New Jersey, the marriage will not be recognized as a “marriage”.

This means that gay couples must file for a civil union in order to get certain New Jersey state benefits that married people have – such as adoption, inheritance, hospital visitation and medical decision-making rights and the right not to testify against a partner in state court. They do not get any federal benefits, such as social security benefits from a deceased partner or the unlimited gift and estate tax breaks that married couples enjoy.If you are a gay couple in New Jersey, you must still get all of the estate planning documents in place – a will, durable power of attorney, health care proxy and living will (with your wishes about how much or little treatment you want if you cannot speak for yourself in writing), and a release for your partner to gain access to your medical records, called a HIPAA Release. The laws are always changing so contact your estate planning attorney at least once a year to make sure that your partner gets the property that you intend to give to him/her.