The importance of advanced directives for minors

Jun 15, 2021 | By: Neil Lyons

If you have minor children, your estate plan should include advanced directives for minors.

The forms typically include Designation of Health Care Surrogate for Minor, Power of Attorney for Care of Children, and Declaration of Pre-need Guardian for Minor.

You might need these forms if you and your spouse (or significant other) will be away from your children overnight or longer.

So what do these documents do?

Designation of Health Care Surrogate for Minor

This document allows a minor’s parents to appoint one or more individuals to make health care decisions on behalf of the minor child if the parents are unable or not reasonably available to do so.

This document is essential if both parents are leaving for a long trip and leaving minor children with a relative.

What about non-healthcare situations?

Power of Attorney for Minor

This document allows a minor’s parents to appoint one or more individuals (an agent) to deal with non-healthcare custodial issues for the child.

Those activities include, but are not limited to: register for or withdraw from any school, club, or other organization; pick up, deliver, or otherwise transport the children, whether within or outside of the United States; represent the children in all legal matters, etc.

Choosing an appropriate agent in these circumstances is extremely important – arguably more important than choosing an agent to be your durable power of attorney.

If you’ve already chosen a Health Care Surrogate for your minor children, it could be as simple as naming that person the agent. The Power of Attorney for Minor is similar to the Health Care Surrogate Designation in that it is designed for short-term, non-permanent situations.

But what about more permanent situations such as the incapacity or death of both parents?

Declaration of Pre-need Guardian for Minor

The pre-need guardian declaration enables parents to name a guardian for their child in the event of both parents’ incapacity or death.

The document allows parents to name a person to serve as both guardian of a minor’s person and property. Moreover, it allows naming different guardians — one for the minor’s person and one for the minor’s property.

A guardian of a minor will need to be appointed by a probate court. The guardian will be responsible to file annual reports with the Court. Essentially, a guardian for a minor will be the child’s parent. They will be legally responsible for the care and wellbeing of the minor.

Do you and your spouse leave your children with a relative or other caregiver? If yes, consider executing advanced directives for your child or children.

In summary, if you have questions about obtaining or updating advanced directives for minors, please contact an elder law attorney.