Wednesday, November 30, 2011

Choosing a Guardian

Next to deciding how to complete their living wills (pull the plug or keep me on food and water?), choosing guardians for their minor children is the most difficult decision my clients make when performing their estate planning. They look to me for advice and while I can provide a couple guiding suggestions, it's a very personal decision. Ultimately it's up to the client to weigh the perceived parenting abilities, philosophies, religious affiliations, etc. of their potential options to try and make the best decision possible. It's also very common to have two parents who each argue that their own siblings or parents are the better candidates. For these reasons it's critical to create a will, if for nothing else, to unequivocally nominate guardians and avoid fighting among families as to what you two would have wanted.

I came across a great article that will help make the difficult decision a little easier. It's definitely worth the click to read, but to paraphrase, the author states:

1. Stop looking for the perfect guardian. In all likelihood one does not exist, so instead choose someone who meets most of your criteria. Choosing someone is better than doing nothing at all and the selection can always be changed as your kids grow or your chosen guardian gives you reason to look elsewhere.

2. You can't expect the situation to just take care of itself simply because there are so many good options. Upon your death, without a guardian nominated, the fact that so many people are willing and able can lead to infighting amongst the self-proclaimed candidates and the real losers in that battle are the children. Being explicit about your choice prevents the chaos that could arise.

3. A handwritten note may not be enough and probably isn't binding. If you've already made the tough decision, take the extra step and make it official by formally completely your estate plan. At the very least, complete a holographic will that will be valid in probate court. A note is better than nothing, but a family court judge need only take it under advisement and may still choose another person who he finds more appealing in his determination.

4. The author suggests having an open discussion with your choice about your parenting style, post-death financial and living arrangements and other personal, important and relevant subjects. This allows your choice to make an honest decision about their willingness to be a guardian to your children, and will help you to decide if the fit is satisfactory.

While I think this is certainly a reasonable route to take, I generally advise differently if you have several good options. Instead, I would suggest choosing three individuals or couples and placing them in order of priority. In the event you pass away prior to your child reaching the age or majority, the first guardian on your list will have the opportunity to accept the nomination or decline, in which case the next person on the list will be able to step up. This provides you a safety net in the unlikely event the first person you chose declines, but it also avoids the weighty discussion you might have with your choice, as the author suggests. Moreover, a lot of the more difficult factors regarding money fall by the wayside if you have taken proper measures with a living trust to provide for your children and assist your guardian.

As the author emphasizes, do something! While many people believe estate planning is only for those who have a valuable estate to protect and distribute, naming guardians for your children is critical and necessary. Take a moment to consider how your family and friends would respond to the care of your children upon the death of you or you and your spouse. If you can envision any dispute or discord, then take the steps to resolve those problems before they can arise by drafting wills and a living trust.

Wednesday, November 9, 2011

Videotaping the signing of your will

A popular Hollywood depiction of estate planning is the gathering of the family together to watch a video of the wealthy decedent describing his desires for the distribution of his estate. In my career I've only seen that done once and you might be surprised to learn that, independent of a document corroborating the video, the video will is invalid. In fact, video recordings are rarely used in estate planning at all.

The most frequent use of a video camera in the estate planning process is for the purpose of creating video evidence of the mental capacity of a client during his or her signing. As I've mentioned before, testamentary capacity is a critical issue when signing your will and trust. If you lack the requisite mental capacity, then the will or trust could be adjudged invalid. Sometimes an attorney will take the extra precaution of videotaping the signing along with a short question an answer period to prove the testator and/or grantor meets the threshold of mental capacity. Makes sense, doesn't it? If you want to prove to future potential challengers of the validity of the document that the client was of sound mind when signing the document, the best way to do so would be actual visual evidence of the signing itself. Unfortunately, it's not that simple. (Is it ever?)

The first issue with this approach is when to videotape the signing. If the attorney chooses to videotape only certain signings, in those signings he chooses to videotape it raises the presumption that he might believe that there could be some doubt as to the capacity of that specific client. Why would the attorney only record that person's signing to the exclusion of others unless he wasn't himself sure about the client's mental state?

Perhaps, the attorney solves that issue by simply videotaping every signing. Now no one client is treated differently than another. However, in the same way instant replay of a football play isn't always conclusive, the videotaping of an individual may lead different viewers to different conclusions when the absence of the video would leaving nothing to interpret. Or worse, a testator who was perfectly capable of signing her documents could have their validity challenged based on a subjective flaw that an angry disinherited heir and his attorney discover after the fact. Moreover, that challenge could be buffetted by the complaint that not enough of the signing was recorded and that only a favorable clip was preserved by the attorney.

I have never recorded a document signing for a client and for the reasons above, I don't plan to. Attorneys use built in safeguards to assess not only the capacity of the client for him or herself, but also within the documents to avoid challenges based on lack of capacity. I've had to refuse preparation of documents for clients in the past when I determined they would not meet the threshold. It's also why I counsel individuals and families to be proactive about getting their planning done before such a problem can arise.