Articles Posted in GUARDIANSHIP

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As you prepare your estate plan, many of the decisions you have to make relate to your children. You may not have thought about how you would want your estate distributed to your minor children if something should happen to you. Would it go to your children equally? Should it be distributed outright or in trust? Should your estate be held in trust with distributions for health, education, and support and then distributed at various age intervals? Who would be an appropriate choice to be the trustee that manages your children’s assets

Another consideration is the choice of who will be the guardian for your minor children. Here are some questions to ask yourself as you think about who to nominate as the guardian of the person, ie. the individual or couple who will physically take care of your children: feed them, clothe them, educate them, etc.

1. Is the person you’ve chosen young enough to take on the responsibility? Often young couples will want to name the maternal or paternal grandparents. Raising children is a tough job and as much as you may want to name your parents, they may not be physically capable of raising your children to adulthood or they may not survive you. If you do choose individuals who are older than you, always name back up guardians.

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Guardianship in California is the court process by which a person other than a parent is given custody of a minor child or given the authority to manage a child’s estate. The petition for guardianship can be filed by a relative or “any other person on behalf of the minor.” Usually we see family members petitioning to become the guardians of their grandchildren, nieces or nephews or maybe siblings.

In the recent case of “Octomom” Nadya Suleman who gave birth to octoplets in January 2009, it was not a relative but a “stranger” who petitioned the court for a guardian of the estate to be appointed for the children, claiming that an independent person should oversee the children’s finances if they were going to earn money from reality TV shows and sellling photos.

The Court in Orange County first ruled in favor of the “stranger” who was a self-professed child advocate, who filed the guardianship petition through his attorney Gloria Allred. The Court appointed a guardian ad litem to investigate the matter and report back to the Court. Recently though a Court of Appeals Court has ruled that although the California Probate Code does legally allow a “stranger” to file a petition for guardianship, he or she must show evidence of actual financial mismanagement by the parent. The Court dismissed the petition because there was no evidence that Octomom was mismanaging the childrens’ money.

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Celebrity deaths often highlight various estate planning issues as prior posts have discussed. Michael Jackson’s death brought public awareness to issues about choosing your executor and trustees, pour over wills, and guardianship. You may recall that Michael Jackson named his mother as guardian of his children. His second choice was Diana Ross. If Michael Jackson’s mother had predeceased him, would he still have wanted Diana Ross to raise his kids, rather than a family member? We’ll never know.

The lesson to be learned is first of all, to name someone you believe will be the right person to raise your children. Do they share your values? Are they stable individuals who will likely be able to provide the necessaries of life? Do they have any medical issues? What if you chose a couple and they get a divorce?

It is important to review your guardian nominations from time to time. As time passes, circumstances and people change. People you choose early in your childrens’ lives may not be the ones you would choose for teenagers. Maybe you named your parent and that parent is now too old to raise your children. Maybe the original guardians have moved away and you want someone local to raise your children. Maybe you have siblings you are close to now and they would be a good choice to raise their nieces and nephews.

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Many people want to leave their grandchildren something when they pass away. It may be small or it may be significant. There are several ways to do this, some better than others. When you draft your estate plan, you have no way of knowing whether some of your beneficiaries are going to be minors at the time you die. You have to plan for the possibility that some may be minors.

1. Outright Gift. You can simply provide in your will that a dollar amount or a percentage of your estate will go to a grandchild but this leads to problems if the recepient is a minor. Substantial amounts of money being inherited by a minor may cause a court-supervised guardianship of the estate of the minor until he or she is 18. Then at 18, the entire inheritance is handed over to the now adult, but still 18 year old, with no limitations attached.

2. Custodial Accounts. One way you can leave money to minors is in an account under the Uniform Transfer to Minors Act ( a UTMA account). This works well for small amounts of money. The account has a custodian who has the power to withdraw funds for the health, education, and maintenance of the minor. Once the child reaches the age you specify (In California it can be as old as 25), the child has full access to the funds.

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The San Diego Probate Courts hear many guardianship cases each week, in the North County Branch or the downtown branch.

A probate guardianship is the appointment by the Court of an adult or adults who will have legal guardianship over a minor child. There are two types of guardianships: (1) guardianship of the person and (2) guardianship of the estate. A child’s guardian will be legally accountable for taking care of the child’s education, shelter, food, clothing, and health care. This is a huge responsibility which lasts until the child is 18. A guardian of a minor’s estate is responsible for handling the assets of the minor.

The Michael Jackson case has caused many people to ask why the Los Angeles Probate Court is involved in determining who should be the guardians of his three children. After all Jackson did nominate his mother Katherine Jackson as the guardian of his children and that is the point of having an estate plan that incorporates a nomination of guardian(s) for minor children. However some people may not realize that the individual you name in your will or trust is just a nomination; it is not etched in concrete. The nomination sets worth your wishes but if other individuals want to file for guardianship, it will be a probate judge who will determine whether your wishes are in the best interest of the children. Hence the Court in the Jackson matter will have to weigh the interests of the children together with the wishes of Michael Jackson and the qualifications of both Katherine Jackson and the biological mom, Debbie Rowe.

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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.

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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:

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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.

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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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