ESTATE PLANNING ATTORNEY PLYMOUTH, MN
Planning for Minor Children
Planning for Parents’ Incapacity and Death
We need to plan for two situations when minor children are part of a family:
Temporary Guardian: At least one parent is alive and incapacitated, and the other is either also incapacitated, deceased, unable to function as a parent, or has their parental rights terminated. Here the child needs to be taken care of until at least one parent recovers the ability to assume parental responsibilities. If the child has run ins with the schools, hospitals, or the legal system, they will need an official temporary guardianship established.
Permanent Guardian: Both parents are deceased. In this case a permanent guardian needs to be appointed for the child to raise them to adulthood. Additionally, the children will need to be taken care of financially until they reach (at least) the age of majority.
Planning for Parents’ Incapacity and Death
We need to plan for two situations when minor children are part of a family:
Temporary Guardian: At least one parent is alive and incapacitated, and the other is either also incapacitated, deceased, unable to function as a parent, or has their parental rights terminated. Here the child needs to be taken care of until at least one parent recovers the ability to assume parental responsibilities. If the child has run ins with the schools, hospitals, or the legal system, they will need an official temporary guardianship established.
Permanent Guardian: Both parents are deceased. In this case a permanent guardian needs to be appointed for the child to raise them to adulthood. Additionally, the children will need to be taken care of financially until they reach (at least) the age of majority.
How do we Establish a Temporary Guardian?
For the temporary guardianships, we need to establish a special kind of power of attorney – what we call the “Guardianship Directive” (officially entitled “Designation of Standby or Temporary Custodian under Minn. Stat. Ch. 257B”) . The Guardianship Directive authorizes someone to step in the parent’s shoes and have parental authority over the child. It may not seem important, but if the child needs medical assistance, or an issue arises with the schools or the law, proper authorization needs to be in place to avoid the courts and social services from getting involved.
How do we Establish a Permanent Guardian?
If both parents are deceased, we need to establish a permanent guardianship to care for the child until they reach the age of majority. Permanent guardianship is established in a will (or, if an estate plan is based around a revocable living trust, in a “pour over will”).
Additionally, in a situation of permanent guardianship, we need to secure the financial future for the minor child. We do this by putting assets in a “testamentary trust” or “sub-trust” – a trust built into the parents’ wills or revocable living trust. The testamentary trust or sub-trust will manage the finances for the child until at least they reach the age of majority, or more likely, until they are a bit older and able to manage their financial affairs responsibly.
Let’s Start Planning
Planning for minor children can be an important part of your estate planning process, if not, in some cases, the most important part of the estate planning process. If you’re ready to get started or have any questions on planning for minors, we can help. Simply schedule a free consultation so we can answer your questions and find out the best way to secure your legacy and the future of your children.