Protecting Your Family if You are Sick or Die
The coronavirus has reminded many of us of our mortality and our ability to be there for our family. Some may be thinking about how to make sure their kids are cared for if they get sick or die. Estate attorney Mary Loung of Cookman Law in Palo Alto talks to people on a regular basis about these issues. Lately, many of her clients have been anxious to get legal documents in place to protecting their families.
Loung, who lives in the Bay Area with her husband and twin boys, spoke with Bay Area Parent about legal steps parents can take to make sure their children have everything they need if they become incapacitated or die.
What are some key legal issues parents should be thinking about?
It is much easier to get things in place when both parents are alive. Our goal is to make sure clients can sleep easy knowing that if something were to happen to them, they have a plan. Part of that plan is a will, a trust, a durable power of attorney and an advance healthcare directive. For parents with young kids, usually we name guardianship in the will. A will takes effect upon death. … If you are alive, but you are sick, for example with the coronavirus, you would still want a will to name guardianship, but there are alternatives to guardianship because you are not dead. You are just very ill. For that, you could do something called a caregiver’s authorization affidavit. That is when you name, usually a relative, as a temporary caregiver, who can enroll the children at school, make medical decisions on their behalf, give authorization to go on field trips and things like that.
Another thing to consider is power of attorney over your minor child. That needs to be notarized. With notarization, there’s kind of a gray area in California. …We feel if you are able to notarize something within the current 6-feet distance requirement, that is doable. …We’re not allowed to do virtual notaries in California.
How should you choose a guardian for your child?
Think about who you want to care for the child permanently, but also temporarily. You might have someone you want to take care of the child if something were to happen to you, like death, and that person lives out of state. That may be fine because the child could reestablish in that state and get a fresh start. But if you are sick, you might want to think about someone who could be a temporary caregiver, such as a friend or a relative who lives nearby so schooling wouldn’t be interrupted. You also want to think about someone to deal with the child’s finances. You might pick someone who is very nurturing and can take care of the child physically and emotionally, but they might not be the best to manage finances.
Is it enough to just have a will?
A lot of people think that if they have a will, they can avoid the California probate process which is very long and very costly. But that is not true. If you have a will, you still have to go to court. You are actually asking the court to manage the transition process. And it’s a public proceeding so anyone can pull up your will and anyone can attend these proceedings.
You don’t want a stranger to know your child will be getting a home and your bank accounts and where they live. That’s why you should create a trust. It’s private and it avoids the probate process. With a trust, if you are sick, you can name a trustee. If you can’t take care of your finances because you are sick, that person can manage your finances. Same with a power of attorney. You need someone who can go to your bank.
You should also have an advance healthcare directive. That’s the person you name to make medical decisions on your behalf. A lot of people automatically think it’s the spouse, but it’s not. It could be your spouse but maybe your sister is a nurse, or you’re single. You also want to name someone who aligns with your beliefs. You may want to donate your organs or be cremated. Don’t pick someone who is against those things.
Currently, can people take care of legal issues virtually?
I am in a network of other attorneys in California and the Bay Area. We have been bouncing ideas off of each other on how to do estate planning during shelter in place. We can do a lot of Zoom meetings with our clients. We’ve been sending them a lot of documents to sign and then when shelter in place is over, they can come back to our office and we can acknowledge their signature with a notary. All signs point to this: As long as the intent is there, it should be legal and we can always petition the court for guidance. But it’s better to have something in place than nothing at all.
What are some of the concerns your clients have right now?
We have a lot of frontline people who are the essential workers. They’re asking: How can I make sure my children are safe? How do I provide for my loved ones the quickest way and least expensive way with the most tax savings available? They want to know how soon can you get this done. But I caution against that. When you do things so quickly, you might not understand or you might miss something. Unless you are seriously ill, you should not rush it. It’s good to go through this process.
Do you have anything to add?
I think the coronavirus has opened the door to talking about death. The big thing you want to think about is, who do you want to protect yourself, if you are unable to, and your loved ones? You should start making those decisions and contact a professional.
Teresa Mills-Faraudo is an associate editor at Bay Area Parent.