Just a Spoonful of Estate Planning Helps Grandparents and Grandchildren

January 16, 2019

According to the 2010 U.S. Census data, there are about 2.7 million grandparents taking care of their grandchildren. This is largely due to several factors, such as the current opioid crisis (affecting mainly adults ages 25 to 44), military deployment, unemployment, incarceration, divorce, mental illness, and neglect. Whatever the case may be, millions of grandparents have stepped up and turned into their grandchildren’s new caretaker. Whether the parents may or may not be in the picture, it is vital to note that the grandparents should be acknowledged in the parents’ estate plan. It is also important for the grandparents to update their estate planning documents as well, giving their grandchildren a possible role in their estate.

In creating a Last Will and Testament (“Will”), parents can assign grandparents as backup guardians for their children. This reduces lawsuits that can arise over custody in case of sudden or unexpected death of the parents. This is a simple proactive solution to the guardianship conundrum, in that it allows the children to stay together, remain under the care of the current active caretakers, and minimize family disruption. Conversely, if the parents do not have any assigned backup guardians listed in their Wills, then a Judge in probate court will assign a legal guardian to the children based on whoever petitions the court and presents the best case. This runs the risk of the children being put under the care of someone they do not know and possibly have conflicting relationships with. A more unfortunate route would be the children being placed into foster care. Situations like these can all be avoided if the parents, in their Wills, list the desired grandparents as backup guardians. Note that guardians can be designated as individuals, as a married couple, and a few sets of backup guardians are permissible.

Regarding grandparents and their own estate planning, it is critical that their documents are established and kept up to date. Aging grandparents that have become the primary caretakers in the household again must be proactive and execute both a Durable Power of Attorney and Health Care Surrogate along with a Will or a Trust:

  • A Durable Power of Attorney allows the grandparents (the “principal”) to select a person (the “agent”) to “step into their shoes” if they become mentally or physically incapacitated. With a properly executed Durable Power of Attorney, the agent will be able to make legal and financial decisions on the principal’s behalf. These types of decisions include granting the agent power to do banking transactions including transferring, investing or liquidating funds, selling and buying real estate, initiating any kind of personal injury lawsuit, and applying for public benefits. This is a very trusting responsibility, so in this case, the grandparent should select a reliable individual as their agent, such as their children or grandchildren.
  • A Health Care Surrogate, also known as a Health Care Proxy, allows grandparents to plan ahead for difficult medical decisions. This document names someone (the “agent”) to make health care decisions on the grandparents’ behalf. This is crucial because it prevents disagreements within the family as to who should make these critical decisions. Such decisions include consenting to certain medical procedures, seeking a second opinion, obtaining medical records, or transferring to a different medical facility. If there is no Health Care Surrogate document prepared, and the person falls ill and cannot make their own medical decisions, then the healthcare facility will follow Florida law to determine who will be responsible for the healthcare decisions.
  • When the grandparents create their Will or Living Trust documents, they can choose what beneficiaries will receive from their estate upon their death. Often people choose their children as the primary beneficiaries. Grandparents may want to go a step further and select the “per stirpes” option. Per stirpes means that the grandparents’ estate will go to their children’s descendants (their grandchildren) in the event that one of their children predeceases the grandparents. This allows the grandchildren to inherit the estate and receive even more security from their caretakers. As an extra layer of reassurance for everyone, the grandparents get to leave the estate within the family and avoid any Will contests or potential inheritance disputes within the family.

We associate grandparents with good food, outdated music, and parenting our parents. Sometimes our grandparents end up parenting us. When this happens, it is important to involve the close relationship between grandparents and grandchildren in an estate plan. Contact OC Estate and Elder Law at (954) 251-0332 or info@ocestatelawyers.com to secure Grandma and Grandpa in the family planning.