It’s Vacation Time — Are Your Children Protected?

Q. My husband and I are finally taking our dream vacation to visit Greece this summer. Our children, Mason (11) and Emilie (9), will be at sleepaway camp, and then at their grandmother’s house, so they will not be going with us. While we should be thinking about sun, fun, and relaxation, I keep having these nightmares about how if something happened to me and my husband, they would be orphans.

To alleviate the stress and stop the nightmares, I figured I should do some planning for my children before we leave. I’m wondering: would a Will be enough to protect them, should something happen to us? Also, how can we decide who will care for our children should something happen to us, when our choices are extremely limited? Thanks so much for your help!

A. You would think that taking an adults-only vacation would be less stressful than traveling with children, but worrying about what would happen to them if something happened to you can drive you to distraction. As you clearly know as a parent, those worries are a natural part of leaving home, and you’ll likely never eliminate them. However, leaving your children and their caregiver with all the documents and information they’ll need can give you at least some peace of mind.

It is very wise of you to consider these things before your trip, since taking long drives and flights, visiting foreign places, and doing risky outdoor activities can of course have the potential for danger. In fact, planning in advance is essential for everyone with children. I cannot think of one person who would want their children to end up in foster care or would want a local probate judge to choose the guardian to raise their children. This, among other reasons, is why if you have children, regardless of the size and nature of your assets, it is imperative to plan for them. In accomplishing this, you will hopefully truly enjoy your vacation.

Parents of Minor Children Should Seriously Consider a Child Protection Plan.

If you’re a mom or dad with one or more children at home under the age of 18 (as you mentioned you do), you should consider a Child Protection Plan. A Child Protection Plan is a set of legal documents that indicate what would happen to your children if something should happen to you, among other important things that I will describe later.

Without such a plan, if you are killed or incapacitated while on vacation or even locally in an accident, the police will typically show up at your house to notify the family. If the police find your kids home alone, or with a babysitter, they will have no choice but to call in Child Protective Services and have your children removed from your home until the system can figure out what to do, and that may take days, weeks, or even months. That would be a terribly traumatic experience for most children.

Is a Will that Names Guardians Enough?

Having a Last Will and Testament to name permanent, long-term guardians for your minor children is very important, but it is not enough to protect your children in certain situations. Here’s why:

  • Police don’t look for a Will: The police typically won’t look for a Will, so your kids will usually wind up in the hands of strangers, under emergency foster care, until everyone can figure out what to do.
  • The Will doesn’t appoint guardians: Even if the police did somehow obtain a copy of your Will, a Will doesn’t actually appoint guardians. A Will only nominates guardians for your children after your death; a Court must make the actual legal appointment.
  • A Will only works if you die, not if you become temporarily or permanently incapacitated.
  • A Will must go through probate first: A Will doesn’t even become effective until it is admitted to probate (which often occurs weeks or months after death), and then it can take additional weeks or months for the Court to officially appoint your guardians. In the meantime, who is going to take care of your children? Who is going to be authorized to obtain medical treatment if a child requires it? Unfortunately, it is typically the Child Protective Services system, through its network of paid foster care parents.

Why You Might Need a Child Protection Plan

A Child Protection Plan addresses who is authorized to take charge of your children immediately and comfort them in those terrible first hours, days, and weeks after your death or incapacity, so that you can have the peace of mind of knowing that your children will be taken care of by trusted and loving family or friends who you decide on, not random strangers that the overworked government system foists upon your children.

What Does a Child Protection Plan Include?

A Child Protection Plan consists of a set of legal documents that includes an Appointment of Temporary Guardian for someone you choose to take immediate custody of your children, a Parental Consent for Medical Treatment form, and a Medical Information form containing information on your child’s medical allergies and conditions, pediatrician information, health insurance information, immunization record, and medication list. Your Child Protection Plan will also include a special wallet card. The wallet card will be registered with a national database that contains all of the above information on file for each child.

If you are in an accident, your Child Protection Plan will help ensure that your children are never turned over to Child Protective Services because the police don’t have clear instructions from you and, if the unthinkable happens, your Child Protection Plan will help ensure that your children are not turned over to foster care strangers chosen by an overburdened social services system that doesn’t care about your wishes or who you would prefer to take custody of your children.

Choosing Guardians for your Children

Let’s say you decide to do a Child Protection Plan for your children. As you mentioned in your question, who would you choose to be their guardians? Similar to you and your husband, many people in this situation are at a loss when trying to choose among family members and friends since each person will have pros and cons. To assist you in making this important decision, Hayek will cover this question in today’s Critter Corner. You can view the answer here.

Plan Even if you are Uncertain who Should be Guardian

Often parents put off planning because they can’t decide who should be guardian. As I mentioned earlier, regardless of whether you make a plan, the State has a plan for you and your children, and that plan likely involves Child Protective Services if you do not have local family to take in your children.

Almost everyone has a family member they know they would NOT want to raise their children. Imagine if that was the person the Court appointed to raise your children! And, even if you would be okay with any member of your family raising your children, imagine the strife that could occur when more than one family member comes forward, insisting they are the right person. Don’t let your reluctance to make a decision turn into a decision that you don’t want.

Planning in Advance for Your Children

By planning in advance, you will have the peace of mind that your children will be cared for should something happen to you. So, before you go on vacation, please give us a call to get your estate planning done ahead of your trip. As always, we offer a no-cost initial consultation:

Estate Planning Fairfax: 703-691-1888
Estate Planning Fredericksburg: 540-479-1435
Estate Planning Rockville: 301-519-8041
Estate Planning DC: 202-587-2797

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