Founder
The news about Britney Spears’ battle with her father to end his appointment of Guardian over Britney garnered its fair share of headlines. But Britney’s high profile guardianship battle was hardly the first and won’t be the last.
A recent study published in The Lancet, which is a weekly peer-reviewed medical journal and is among the world’s oldest and best-known medical journal, reveals an estimate number of children who have lost parents or caretaking grandparents as a result of the COVID 19 pandemic, and the results indicate that 1 million children worldwide have lost primary parents during this pandemic, including one parent or a custodial grandparent. The Lancet study shows that over 100,000 are from the U.S. alone, which ranks fourth globally for the most kids orphaned by COVID.
We hope the children’s parents had Last Will and Testaments that named guardians and conservators, as well as life insurance policies to cover the expenses the children will have during their lives, including college costs. But we know from experience that many of these American children will have their lives upended and depend upon the court to make life-changing decisions for them.
Our practice encourages parents of all ages and stages to plan for what would happen if both parents died. It is unpleasant to consider, but it is something that every family should plan for.
Guardianship and Conservatorship are also issues for the elderly or seniors who cannot manage their own affairs. Usually, adult children face no choice but to seek a guardianship or conservatorship when a parent can no longer manage; it is not unusual. While the reasons seem obvious, the results are not always ideal. A parent can name who they wish to serve as guardian or conservator, should one be needed, in a durable power of attorney document, and in a health care proxy with advance medical directives document.
An example is an older woman who suffered from alcoholism. Her diligent son has gotten her into rehabilitation programs but to no avail. At 79, the chances of her having any recovery are low, and the almost weekly calls to the local rescue department have become a routine: she injures herself, calls 911, and goes to the hospital, where she stays for a short while and then is released again and again.
Does she need guardianship? She would benefit from having her son manage more of her life, including staying current on bills, but she is not at the point where a court could consider her incapacitated. If the mother would grant the son Durable Power of Attorney and sign an Health Care Proxy with Advance Health Care Directive document, the son could then help.
Our recommendation for families considering guardianship and conservatorship is simple. To protect minor children, parents need to prepare Last Will and Testament documents that leave their assets in trust for the children and name a trusted individual or financial institution as a trustee. They should also name a guardian and conservator for the children in the event of the death of both parents.
If the parents do not adequately plan, the courts control the children’s money until they turn 18. The court will appoint a guardian that it thinks is appropriate to care for the children that may not be the person who the parents would have chosen. The court retains control over investment decisions, approval of all expenditures on behalf of the children, and the guardian must account annually to the court for money spent for the children.
Having an estate plan is a much better alternative for the child’s well-being.
In the case of aging parents, a comprehensive estate plan includes a Last Will and Testament, a Durable Power of Attorney, a Health Care Proxy with Advanced Care Directives, and some other documents as well. Doing so leaves the choices with the parents or the individual in crisis and gives the family the ability to help if and when the time comes.