San Diego Estate Planning Lawyer Blog

San Diego County is home to many members of the military stationed at Camp Pendleton, MCRD, MCAS Miramar, and the various Navy facilities such as 32nd Street Naval Station, Navy Submarine Support Facilities and Naval Base Coronado.

When a member of the military gets orders to deploy out of the area, they often need to get their estate planning and financial affairs in order. Some of the things to think about are a power of attorney for finances, a will or a trust, a designation of guardians for your minor children. If you are a single parent or both parents are deployed, you may want to execute a document naming a temporary guardian for your children. This may also include authorizations to permit the guardian to obtain medical care for your children in your absence.

JAG attorneys on the base often provide some of these documents for military personnel but if you have a unique situation, it may be worthwhile to consult a private attorney. Situations that may make this advisable are children with special needs such as autism, mental retardation, cerebral palsy, or any other physical or mental disability that would require special provisions in your estate plan. Real property in more than one state or an estate in general that is over $100,000 may warrant a revocable living trust. Also if you have a trust prepared in California, it is valid in any other state you might subsequently live.

If you need assistance with an estate planning matter, call us or email us at Pinkerton, Doppelt, & Associates, LLP for a complimentary in-house consultation. Also if a family member dies who is in the military and there is an estate to settle, we would be pleased to meet with you about what to do next.

Unfortunately, it occasionally happens that both parents of a minor child die in a common event or accident. If both parents die without an estate plan, a probate judge will have to appoint a guardian. A guardian is responsible for taking care of their “ward” until the child turns 18. This includes such things as housing, food, medical bills, clothing, education, and other incidental expenses. Having the Probate Court choose a guardian for your children may not always result in a guardian that you would have selected.

If the parents have a will or trust designating a legal guardian for their children, the children will be taken care of. A will or a trust allows you to have a say in who takes care of your child upon your death. You are in the best position to know who that individual is. Who is best able to provide a stable and nurturing home for your child - your brother, sister, grandparent, a close friend?

Factors you should consider are:
1. The age of the proposed guardian. Is the proposed guardian young enough to be able to care for the children until they reach adulthood?
2. Ages of your children. Any special needs?
3. Family structure of the proposed guardian. Is the guardian married, single, already have 6 children to raise?
4. Health issues, financial situation, religious views, living arrangements of the proposed guardian. For example would the guardian be able to raise your children in his or her existing home or would you want to provide that they could live in the family home? Does the proposed guardian have the same religious and other philosophical views as you? Does the guardian have any health issues that would have an impact on his or her ability to take care of your children?
5. Willingness to serve. Consult with the proposed guardian to be sure they are willing and comfortable with taking on the responsibility of guardian.

Nominating a guardian for your children is very important but even more so if you are selecting a non family member as a guardian. If the guardian has to be appointed by the Court, family members are usually given priority over non family members. At Pinkerton, Doppelt, & Associates, LLP we can assist you with the appropriate estate planning documents to nominate guardians for your minor children should something happen to you. This is best accomplished with a revocable living trust which will include nomination of guardians for your children as well as pour-over wills, durable powers of attorney for finances, health care directives, and other accompanying documents. Call us or e mail us for a complimentary consultation to discuss guardians and any other estate planning issues.

In San Diego, there are many instances of when an emergency guardianship would be necessary. A hearing would have to be set up in advance with the Clerk's Office as [many times] there is no existing case number to file a petition for emergency guardianship under.
In San Diego, there is a court house on 4th Avenue in San Diego and another court house on Melrose Avenue in Vista which hear guardianship cases.

A recent article highlights the types of emergencies which can occur. In that case, a San Diego man located a six year old girl and her baby sister in Baja, California. Many San Diego residents have visited El Rosario in Baja and this is a popular tourist destination for Southern Californians. The girls were with their fugitive parents. The girl's relatives will petition the Court in Santa Cruz County [where the proper venue is] for an emergency {ex parte} guardianship.

Emergency situations can arise in regards to minors. Please feel free to e mail our firm of Pinkerton, Doppelt & Associates, LLP if you have an emergency [or non emergency] guardianship questions.

In San Diego, California many residents are in the military. As we know, deployments are common. In light of the recent call to active duty received by thousands of United States military reservists, employers and employees alike need to know their obligations to each other when employees serve in the uniformed services. The reemployment rights of military members were revised by Congress in 1994. The main thrust of the legislation is to guarantee the rights of military service members to take a leave of absence from their civilian jobs for active military service and to return to their jobs with accrued seniority and other protections.

Estate planning issues always arise and state law is very important in San Diego, California and there is information about necessary powers of attorney. The federal law applies to all Armed Forces members, including the Reserves, National Guards, the commissioned corps of the Public Health Service, and any others designated by the President during a war or an emergency. Employees of both private and public employers are protected when they have embarked on and have been honorably discharged from military service consisting of active duty, inactive duty training, full-time National Guard duty, or absences for fitness examinations. Unlike some other federal employment statutes, the law on reemployment rights of individuals in the Armed Services has no minimum number of employees for there to be coverage.

An employer is prohibited from using a person's military service or application for such service as a motivating factor in any adverse employment action against that person. Nor can an employer retaliate against an employee who participates in the reporting, investigation, or filing of claims asserting that the employer violated the federal statute.

To receive the benefit of the statutory rights and protections, an employee generally must give the employer advance oral or written notice of military service. Exceptions to this requirement are recognized when giving such notice would be impossible, unreasonable, or contrary to military necessity. One important consideration is the care and protection of minor children left behind and sometimes a guardianship is necessary.

Employees leaving their jobs for military service lasting less than 31 days are entitled to continued health insurance coverage at the same cost, if any, that active employees would pay. An advanced health care directive is really essential for any member of the armed services on deployment in the event they are incapaciated and sent back to the United States under the care of their family. For service lasting more than 31 days, employees may elect to pay for continuation of their health coverage for up to 18 months, or until their reemployment rights expire, whichever comes first. Upon returning to work after military service, an employee is entitled to immediate health insurance coverage, even if returning employees usually face a waiting period.

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