Guardian Archives | Estate Planning in Atlanta, GA | Atlanta Legal Remedy

Video: Does the person you designate in your will as guardian of your children have to take your children?

In Siedentopf Law’s latest video, estate planning and probate attorney Sarah Siedentopf answers the question, “Does the person you designate in your will as guardian of your children have to take your children?”

How to Protect Your Child with a Standby Guardian

How to Protect Your Child with a Standby Guardian

Summary: In Georgia, a Standby Guardian takes custody of a child in the case of some unforeseen circumstance (mental incapacity, physical debilitation, etc). Siedentopf Law discusses how to select a standby guardian, when that guardian’s authority is activated, and other related issues.

Many people are familiar with the estate planning term “guardianship,” which is where a parent designates a person to care for his or her child in case of death or permanent disability.  However, Georgia law does provide a second guardianship option – which is known as a standby guardianship.  A standby guardian legally takes custody of a child in the case of some unforeseen circumstance or triggering event.  The parent does not relinquish his or her parental rights altogether; they are merely transferring custody because they are unable to care for their child.

Establishing Standby Guardianship:  A parent (who has physical custody of their child) can designate a standby guardian by putting his or her wishes in writing; that document also needs to be signed by two witnesses.  Neither of the witnesses can be the standby guardian.

The state of Georgia requires that both parents consent to the designation of a standby guardian.  However, the court does not need both parents’ consent if the noncustodial parent’s parental rights have been terminated or if the noncustodial parent cannot be located.  It is also important to note that standby guardianship does not relieve a parent of their duty to support their child.

Activating Standby Guardianship:  A standby guardian’s authority is activated after a “triggering event.”  This can be the parent’s mental incapacity, physical debilitation, or some other serious issue the parent has identified.  The standby guardian can assume responsibility for the child immediately after they are notified that the triggering event has happened.  They assume all the rights, duties, and obligations of guardianship.  Georgia law requires that the parent’s doctor documents a triggering event of incapacity or debilitation.  Also, the standby guardian has 120 days to file a petition with a Georgia court confirming his or her official appointment as the child’s guardian.

Depending on their mental or physical health, a parent can continue to communicate with a standby guardian after the guardian has assumed the responsibility of the child.  They can discuss the child’s care and welfare.

Withdrawing Standby Guardianship:  A parent can revoke who he or she has named as a standby guardian.  Prior to the triggering event, the parent can destroy the written designation, or they can prepare a written revocation which must be signed by two witnesses and the person no longer serving as standby guardian.  If a parent wants to revoke after the triggering event, he or she must file a notice of revocation with the court and mail a copy of the notice to the standby guardian.

Why a Standby Guardianship: A designation of guardian in a will comes into effect only when the parent dies.  A will that designates a guardian has no effect whatsoever while the parent is still alive.  However, there are situations in which a child might need a guardian while the parent is still alive.  The standby guardianship addresses this issue and provides added protection for children.

For more information on standby guardianships, or if you are interested in establishing a standby guardian for your child, visit the Law Offices of Sarah Siedentopf, LLC’s website at AtlantaLegalRemedy.com or call us today at (404) 736-6066.

© Sarah Siedentopf and Siedentopf Law, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Siedentopf Law and AtlantaLegalRemedy.com with appropriate and specific direction to the original content.

Estate Planning Issues for Generation X

Estate Planning Issues For Generation X

Summary: Generation X (those born between mid-1960s and late-1970s) comprises a significant part of the population, and, as Siedentopf Law explains has its own specific estate planning issues related to family, personal assets, and business investments.

Right in between the headline-making Baby Boomer and Millennial generations is an age group known as Generation X.  These individuals were born anywhere between the mid-1960s all the way to the late 1970s.  While this specific demographic may be unfamiliar to some, it comprises a significant part of the population.  According to a study conducted by Harvard University’s Joint Center for Housing Studies, there are approximately 82 million “Gen X’ers” living in the U.S. right now.  Most of this group is not yet old enough to retire; however, there are some estate planning issues that they might want to consider.

Traditional Estate Planning Documents:  As with any estate plan, there are a few essential documents which everyone should have in place.  Those items include a will, power of attorney, and a healthcare advance directive.  (For a detailed description of each, you can read our blog “What are the Must-Have Estate Planning Documents?”).  These documents allow people to control what happens to them, their family, and their property in case of incapacity or death.  A Generation X estate plan should provide for the possibility of incapacity.  It should also take into consideration the current economy and technological environment, especially when it comes to protecting a Generation X’ers family and personal assets.

Protecting Your Family:  The age span of Generation X is anywhere between mid-30s to early-50s; accordingly, their families (if they have children) may be younger, or could already be adults themselves.  If you are taking care of a child, it is important to have an estate plan in place that protects them.  For younger children, you should have a Last Will and Testament that designates a guardian (should both parents die or become incapacitated) and ensures your child’s inheritance is secure.  You can also name a standby guardian – someone who would take care of your child if you are alive, but unable to care for them yourself.  In addition to a will, Generation X’ers should also consider protecting their family via a life insurance policy.  There are a number of policy options available, with benefits usually protected from creditors.

Protecting Your Personal Assets:  Unlike its predecessors, Generation X is not limited to traditional assets such as real estate and stocks.  This group has a mix of tangible and technological assets.  For the more traditional assets, like retirement accounts and 401(k) programs, the Generation X’ers should make sure that they have identified all of the accounts from previous employers and that the beneficiary designations on those accounts are up to date.  For real property, Gen X’ers should make sure all of their assets are correctly titled (click here for our guide on property titling).  You might want to use a trust for any real property outside of Georgia – this will enable you to avoid probating the property in that other state.  If you are using a trust in your estate planning, be sure to re-title all of those assets in the name of the trust.

As social media becomes a more prevalent part of Generation X’s daily life, their digital assets also have become an area of growing importance.  Estate planning documents should include what happens to a Gen X’s email accounts, social media profiles, and online file storage if that person passes away.  The documents should list all of the digital assets and name a person(s) who will manage those accounts.  (Click here for our blog on digital assets and estate planning).

Protecting Your Business and Financial Investments:  Some members of Generation X are just beginning to establish their career and professional reputation.  Others are more established businesspeople and entrepreneurs.  No matter their choice of employment or number of year in the field, Generation X has several options available when it comes to protecting its business and financial investments.  A trust, for example, can protect assets from creditors of later beneficiaries while still enabling a person to maintain control and access to his or her wealth.  Some of the recommended trusts for this generational group include: Life Insurance Trust (owns life insurance and gives the proceeds excellent creditor protection), Self-Settled Trust (creator of trust is also beneficiary), Charitable Lead Annuity Trust (provides for income tax deductions while spreading out contributions), or a Revocable Trust (hold assets for your own benefit during lifetime, with remaining assets going to designated beneficiaries after death).  If you decide to create one of these trusts, make sure to consult with an attorney to make sure the trust is fully funded, and that anything that is not transferred into the trust during your lifetime will make it into the trust eventually.

For more information about these and other estate planning options available, visit the Law Offices of Sarah Siedentopf, LLC website AtlantaLegalRemedy.com or call us today at (404) 736 – 6066.

© Sarah Siedentopf and Siedentopf Law, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Siedentopf Law and AtlantaLegalRemedy.com with appropriate and specific direction to the original content.

New Addition to the Family? Time to Update Your Will

New Addition? Need To Update Your Estate Plan

Summary: Parents, it’s your responsibility to make sure your children are provided for, even if it’s not by you personally. In our latest blog, Siedentopf Law discusses the importance of designating guardianship and distribution of assets in your estate plans.

When you are in the middle of preparing for a new baby, the thought of estate planning may be daunting.  However, as a new parent or parent-to-be, it is your responsibility to make sure your child is provided for, even if it is not by you personally.  If your Will does not reflect the needs of your current family situation, then now is the time to review your estate plan. (For more, see our blog on When to Create a Will).  You want to make sure that you have the appropriate provisions in place for your new baby, as well as the rest of your family.

Your Last Will and Testament

There are two main issues to consider related to family additions and your Last Will and Testament:  guardianship and distribution of assets.  You want to make sure that your baby is taken care of in the event of your death, and that your property or assets pass to the correct person(s).  In your Will, you can nominate a guardian for your child.  There are Guardians of Estate, who manage your child’s financial affairs, Guardians of the Person, who care for your child, or, one person may fill both of those roles.  It is important to note that if you do not name a guardian for your child, and both you and the other parent dies, then the courts will be forced to appoint someone (and that person may not be someone you would choose).  So, it is a good idea to nominate a person in your Will who would be a good guardian for your child, and who is also up for the task.

Your Last Will and Testament can also control the distribution of your assets.  When it comes to your baby, you can specify in your Will how you would like financial distributions to be made in his or her benefit.  Any assets would likely be held in a custodial account, managed by the executor of your choosing, until the child reaches 18 years old.  Alternatively, if you do not want your child to have access to an inheritance when he or she turns 18, you could also set up a trust account, managed by a trustee for the child’s benefit.

Other Considerations

As your family expands, there are several other estate planning items you may want to discuss with your estate planning attorney.  First, is making sure you have added the appropriate beneficiaries to your life insurance policies and retirement accounts.  Second is to update your Health Care Power of Attorney – the person you designate to carry out your wishes in your Advance Directive for Healthcare (click here for more on advance directives).  Third, you should also check your Financial Power of Attorney, who is the person you select to have authority over your financial assets.

Parenting is a role you will embrace for years to come, and therefore, planning for your child’s future is crucial.  A large part of the planning process is being proactive – choosing the best guardian for your baby, and taking care of him or her financially.  Once you have updated your Last Will and Testament, as well as any other estate documents, you want to revisit the plans periodically, to make sure they continue to meet your family’s needs.  Doing so can provide peace of mind for everyone involved.  For more information about estate planning, you can contact the Siedentopf Law via our website at AtlantaLegalRemedy.com or by calling us at (404) 736 – 6066.

© Sarah Siedentopf and Siedentopf Law, 2017. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Siedentopf Law and AtlantaLegalRemedy.com with appropriate and specific direction to the original content.

Navigating the Georgia Advance Directive for Health Care: Part Two

Navigating the Georgia Advance Directive for Health Care

Summary: An Advance Directive for Health Care, also known as a Living Will, is a document that memorializes your wishes concerning medical care if you are incapacitated, as well as your end of life wishes. You can also designate a health care agent in your Advance Directive. Siedentopf Law walks you through the different sections of the document in this two-part blog series.

This is Part 2 of a two-part series.  If you missed Part 1, you can read it here: Navigating the Georgia Advance Directive for Health Care Part 1.

As I mentioned in Part 1 of this blog, it is incredibly important to have an advance directive for health care.  Georgia has a statutory advance directive form; click HERE is the most current version.  Feel free to print out the document and follow along with this blog.

This blog picks up with Part 2, Item 7 of the Georgia Advance Directive for Health Care form.  This section deals with treatment preferences, and is formatted as a multiple choice question (with one of those choices broken down even further, into sub-parts).  Item 7 is really the heart of the advanced directive, as it provides your doctors and your health care agent with directions as to your medical wishes. “If I am in any condition that I initialed in Item (6) above and I can no longer communicate my treatment preferences after reasonable and appropriate efforts have been made to communicate with me about my treatment preferences, then:”

Choice A: “Try to extend my life as long as possible, using all medications, machines, or other medical procedures that in reasonable medical judgment could keep me alive…” Choice A is a fairly straightforward option.  Select this one if you want everything possible done to save you.

Choice B: “Allow my natural death to occur.  I do not want any medications, machines, or other medical procedures that in reasonable medical judgment could keep me alive but cannot cure me…” This choice does not preclude medical care that can cure your disease, but will not allow anything beyond that.  This option is for those who are comfortable with dying and do not want to spend a significant amount of time in hospitals, hooked up to machines.  In other words, you are asking not to be put on a ventilator, or to receive nutrients/fluids if you cannot be fed by mouth.  This choice does still allow for pain medication.

Choice C: “I do not want any medications, machines, or other medical procedures that in reasonable medical judgment could keep me alive but cannot cure me, except as follows…”  If you initial Choice C, you are asking that your doctors only perform specific actions or procedures – beyond those treatments which may cure you.  This section has four additional options.  First is that you would like to receive nutrition by tube or other medical means if necessary.  Second is that you want to receive fluids by tube or other medical means if necessary.  Third is that you want doctors to put you on a ventilator if you need help breathing.  Fourth is that you want doctors to do cardiopulmonary resuscitation (CPR) on you if necessary.  If you find yourself checking all four of these boxes, you may want to reconsider selecting Choice C, and instead choose Choice A for clarity.  Otherwise, Choice C does provide more flexibility in directing doctors with specific instructions in what treatments you do want, and do not want.

     Part Two, Item 8 allows you to provide an additional statement, in your own words.  You are not required to write anything here if you do not want to; however, it is advisable to provide additional information about your personal or religious values, as well as your personal preferences regarding pain relief.  Here is an example of the language my clients have used to express their medical wishes: “I do not want my life to be prolonged nor do I want life-sustaining or death-delaying treatment to be provided or continued if my agent believes the burdens of the treatment outweigh the expected benefits.  I want my agent to consider the relief of suffering, the expense involved, and the quality as well as the possible extension of my life in making decisions concerning life-sustaining or death-delaying treatment.

    Part Two, Item 9 really only applies to women of childbearing age.  This section specifies that the individual filling out this form understands that under Georgia law, any medical choices you specify will not be carried out if you are pregnant and your fetus is viable.  In that situation, doctors will make all efforts to keep you alive, to allow the fetus the best possible chance of survival.  Alternatively, if you are pregnant and your fetus is not viable, Item 9 provides the option that medical choices made on your advance directive will still be carried out.

     Part Three of the Georgia Advance Directive for Health Care form addresses guardianship.  You can leave this part of the form blank if you want, or, you can nominate someone as your guardian, if you should ever need one.  Your guardian and your health care agent can be the same person – but they do not have to be.  A judge has the final say on the issue of guardianship, so you will not be completely avoiding the court system, but he or she will take your written wishes into account.

     Part Four is the section of the advance directive form that you sign.  There is also an option to have the advance directive only effective from a certain date to another date.  For most people, this is not the best option, but sometimes may be a good choice if there is a specific problem or medical procedure coming up in the near term.

When you sign your advance directive for health care, you will need two witnesses.  The document does not have to be notarized.  I advise my clients to make lots of copies of your advance directive, and make sure the forms are in all of your medical files, with all of your doctors, and on file at any hospitals you visit.  After all, if your medical provider does not know your advance directive exists, then the document will not help you.

By now, you are probably aware that I am very passionate about the importance of advance directives for health care, and the need for every Georgian to have one.  If you need assistance with your estate planning materials, I am more than happy to help.  But please, do not let a lack of an attorney prevent you from having an advance directive in place.  Its impact on you, and your family, could be massive.

© Sarah Siedentopf and Siedentopf Law, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Siedentopf Law and AtlantaLegalRemedy.com with appropriate and specific direction to the original content.

When Should I Start Thinking About Creating A Will?

When Should I Start Thinking About Creating A Will?

Summary: When should you start thinking about creating a will? As Siedentopf Law explains, anyone who is 14 years or older, has possessions of value, is a business owner, or who has experienced a major life event might want to consider drafting a will. 

A Last Will and Testament is an incredibly important document, in that it ensures your wishes are carried out after your death.  For many people, the process of creating a will may seem daunting, or, some may be confused about the appropriate time to begin organizing their estate.  Is there a “right time” to start thinking about creating a will?

Under Georgia Law, if you are 14 years or older, you are considered “of legal age” to create a will.  (O.C.G.A. § 53-4-10(a): “Every individual 14 years of age or older may make a will, unless laboring under some legal disability arising from a want of capacity or a want of perfect liberty of action”).  This may seem extremely early to start thinking about a will, but young people, just as adults, have possessions that they care about.  They can have money, personal property, pets, etc.  In the case of accidental or unexpected death, the courts have no way of knowing who should receive those possessions, unless specified in in a document such as a will.

There are other major life events which indicate it may be time to consult an attorney about your will.  Purchasing a house is one example.  When an individual owns a home, it changes the overall value of his or her estate.  This presents the owner with additional questions about who they want to benefit from their estate, and how.  The owner may also be afforded some tax planning opportunities, if the value of their house increases.

A person might also want to consider creating a will if they are getting married, or if they are divorcing their spouse.  Both of these circumstances indicate significant personal changes, and accordingly, a will should reflect that.  A person may want to identify a new beneficiary, alter an inheritance, or remove a beneficiary altogether.  In the case of a second marriage, a person may want to balance providing for their new family while also making sure children from a previous relationship are well taken care of.  Concerning wills and marriages, it is important to note that a will created prior to a wedding may be voided automatically upon the marriage unless the proper steps are taken.  Additionally, in Georgia, the act of getting divorced changes the way the courts handle your will where it relates to your former spouse and this may have unintended results.

Another good time to consider creating a will is after having children.  Under Georgia law, if a parent dies without a will in place, the child or children will still inherit part of the estate.  However, the division of the property may not be as the parent preferred.  With a properly drafted will, a parent can describe exactly how they want their estate distributed, and also, who they want to serve as guardians for their children (if those children are still minors).  Without a will in place, the court will be forced to choose a family member or state-appointed guardian.

Finally, if a person is starting or has established a business, they might also consider creating a will.  Having this document in place can help clear confusion and eliminate future power struggles, by specifying exactly how the business and its assets will pass to co-owners or other beneficiaries.  Wills are especially helpful in situations involving family-owned businesses.  It is important to keep in mind, though, that will does not trump LLCs or other business documents; the estate planning and business documentation needs to match.

Just as there are several instances in a person’s life in which they may consider creating a will, it is also important to make sure that the will is up-to-date and in accordance with their wishes.  It is recommended that an individual re-visits their will every five or so years.  There is a lot that can change in that time: new relationships, health status, new state and federal laws, or even a change in personal priorities.  An effective will is one that is relevant, and aligned with a person’s current circumstances.

For more information on choosing a guardian for your children take a look HERE.

If you are interested in creating a will, or have any questions about the process, please vi
sit Siedentopf Law’s website at AtlantaLegalRemedy.com or call (404) 736 – 6066.

© Sarah Siedentopf and Siedentopf Law, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Siedentopf Law and AtlantaLegalRemedy.com with appropriate and specific direction to the original content.

Choosing A Guardian For Your Children

Summary: If you are a parent with young children, it is your responsibility to nominate a guardian and make sure your choice(s) are memorialized in your estate plan. Georgia Estate Planning and Probate Law Firm Siedentopf Law shares some advice about selecting the right guardian for your child(ren).

If you have young children, one of the most important choices you can make is who to nominate as guardian if something happens to you.  It isn’t enough to assume that because you have family the best person to raise your children will be appointed.  It is your responsibility to make sure that the judge knows who you think the best choice is.

You will want your children to have love and stability with whatever guardian you choose.  This can mean making hard choices—if your parents are too old to keep kids for very long, it may be better to choose a younger relative as the guardian than to have your children moved from home to home.  You may also think about stability in terms of whether relatives live near you so that your children could keep their friends and their schools.

If you have more than one option that would provide love and stability, then you may prioritize people that have the same child-rearing philosophies that you do.  No one will make the exact same decisions that you would at every point, but some people will get a lot closer to it than others.

You may also want to think about what opportunities your child will have.  While you will hopefully be leaving your children financially taken care of, different people will provide different opportunities.  If your children’s guardian lives in New York City, the lifestyle and options your child has will be very different than if your children’s guardian lives in a rural section of South Georgia.

These are only a few of the things that may be factors in your decision.  It is imperative that you make decisions based on who would be the best guardian and not out of fear of hurting someone’s feelings that they weren’t nominated.

For advice on adding your pets to your estate plan, check HERE. If you have additional questions or are interested in setting up an estate planning appointment, you can contact Siedentopf Law at (404) 736-6066 or via the contact form on our website.

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