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This week, we celebrated my daughter’s ninth birthday. Like many parents, I love retelling her birth story. Amongst the details of her long-awaited cesarean birth is of course a lesson in trusts and estates.
In the preoperative room, nervously waiting for my second child’s arrival, a nurse dutifully asked me if I had a health care proxy. It was like music to my ears. She was speaking my language. And out of my tote bag, under the newborn take-home outfit, the big-brother gift, and my hospital pajamas, I pulled out a health care proxy. In triplicate. I would like to think that the nurse was impressed, however, I think she was a bit taken aback by my preparedness and assertiveness in offering her an advanced directive. In triplicate.
It is not uncommon for individuals to be asked to sign a health care proxy when they are admitted into a hospital. Unfortunately these are not the best conditions under which one should be contemplating such a serious document. A health care proxy nominates an agent to make medical decisions in the event the patient is unable to make decisions for herself. A health care proxy can come into use under many circumstances. Someone may become temporarily incapacitated and may need an agent to make decisions regarding operations, procedures, or even discharge plans. Nerves, fear, and pain may cloud one’s thinking when executing a health care proxy prior to a medical procedure or worse in the midst of a health crisis. It should therefore be reviewed and executed during a period of calm when a hospitalization is not impending.
The birthing floor is generally thought of as the happiest place in a hospital. This does not obviate the need, however, for a parent to establish a health care proxy. Unfortunately, complications may occur during and following childbirth. A power of attorney should also be executed so that in the event of incapacity, an agent can have access to the principal’s finances in order to pay bills, marshal monies, and apply for benefits.
All adults, regardless of whether they have children or not, should execute a last will and testament. For parents, this is especially important because the document nominates a guardian to raise minor children in the event of death. The last will and testament may also nominate a trustee to manage the minor’s monies. A trustee may manage the assets during a child’s infancy, but also through adulthood, if a testator wishes.
Sometimes first-time parents will contact me during their pregnancy to inquire as to the execution of a last will and testament, prior to birthing their baby. Obviously, I appreciate this kind of zeal, however, there are certain considerations one may wish to review before appointing a guardian under their last wills and testaments. At a minimum, however, the discussion should begin.
In choosing a guardian, one must select an individual whom you trust to raise your child safely. While you can choose someone who generally shares your values, you must recognize that it is impossible to find a guardian who will raise your child exactly as you would. Also, the last will and testament does not indicate bedtimes and food choices and school choices. It is often stated that testators cannot control from the grave. They also cannot raise their children.
As an expectant parent, it is prudent to start the conversation as to who the best guardian is in the event of tragedy. It is also important to understand that familial and friend relationships can change once a baby is born and that might affect your choice of a guardian. Family dynamics are affected by life events such as births and deaths. A distant sister may become a doting aunt upon the birth of a niece. Conversely, a grandparent may disappoint in terms of his generosity of time and resources.
From a legal perspective, a last will and testament can include both present and future children. In the event there are no children born when you execute, as long as the document is drafted correctly, one can make directions as to raising the future children. Similarly, if you execute a last will and have future children, there is generally no need to redo the last will based on the new family member, assuming the last will is drafted to include afterborn children. Having the last wills, health care proxies, and powers of attorney already intact will surely make your hospital bag a lot lighter the second time around.
Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.