Monthly Archives: December 2012

New AMSCounsel Channel on YouTube: Video on Guardianship and Procrastination

Welcome to my new YouTube channel at AMSCounsel.

Stay tuned – or better yet, subscribe! – for more videos with information about estate planning and business law.

No posts or responses on this blog or YouTube constitute legal advice. Please do not post confidential information on this public forum. 

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12-12-12, Superstitions and Life’s Exceptional Moments

As late as this morning, I had no plans to post anything remotely related to estate planning through the end of the year. Who wants to think of this topic in the midst of the holidays? Isn’t it too sensitive a time and space? How about some joy and cheer?

Not to mention the superstition aspect. Some of us seem to believe that if we talk about our wishes after death, we are tempting fate and just might speed up the process. As a friend in her late 50s said to me the other day, “Oh no, don’t even tell me about doing my will, because I won’t listen. It freaks me out.” Others have the same latent fear but won’t mention it. They just shy away.

Americans don’t appear to be a superstitious lot at first blush. Yet we are, as is evident from all of the Facebook posts about what we were doing on 12-12-12, or even at 12:12 on 12-12-12. Not only is it inexplicably comforting to have a round number, but it marks a point in time that is not easily forgotten. It is like a hallowed space, albeit with secular sensibilities. A day set aside. Special. Almost magical.

First there was 1-1-1. Then 2-2-2. Then 3-3-3, 4-4-4, 5-5-5, 6-6-6, 7-7-7, 8-8-8, 9-9-9, 10-10-10, 11-11-11… and today, 12-12-12, the last of the consecutive numbers that any of us will probably see in our lifetimes, since there is no 13th month.

So here I am. On 12-12-12, in the midst of Chanukah and shortly before Christmas. Writing with even more conviction that I should address superstition in this holiday season, rather than ignoring it. There is great wisdom to be had in the process.

On the one hand, I am inclined to put on my lawyer’s hat and state that the concept of inviting death by planning for the inevitable is unreasonable. The idea that we can remain immortal by ignoring our mortality should be saved for young children who, we hope, have not been hit with any of life’s abundant reality checks. We do not tempt fate by planning for contingencies. We live in a state of preparedness, freed from latent fear, by doing so. We take the latent fear, make it present, and then deal with it.

Yet old habits die hard, if you will forgive the pun. And reason, often the fail-safe of lawyers, is not the only or highest human virtue. I can’t simply implore you to excise superstition because, by its very nature, superstition does not live in the realm of reason. Even further, as human beings, our minds and hearts are so complex and interwoven that it is not so easy to unravel certain parts of them without unraveling the whole (metaphorical) sweater. If we unravel the superstition, what else will we find hidden there?

I wrote “latent” fear above, as I believe that we live much of our lives with deep hidden concerns from which we can only be freed if we address them. Once we have found that state of openness, of letting everything in, we no longer need to grasp at “trying” to “stay happy” by ignoring the concerns. We find inner peace, because we do not need to push away thoughts that scare us. We have examined them and found that we can live with them. In fact, we do and must live with them every day.

So I tread lightly. I ask those tough but important questions. As you continue through this holiday season, how can you live more deliberately? Are there latent concerns that you can bring into your present moment, so that you can be freed of them in the New Year? Whether it is planning your estate, getting a cholesterol check, reconciling with a family member or any other task that may seem emotionally unsurmountable, what can you button down so that when the exceptional moments of life are actually upon you, there is no paper tiger waiting in the wings?

Rather than sweeping them under the rug, clear out those fears, finish those tasks. Joy and cheer will surely follow, with great abundance, whatever the season.

This post is the first in an occasional series about the interplay of law and everyday life. (It is obviously written to the average person, not those who rushing to use their $5.12 million lifetime gift tax exemption before the end of the year.) If you prefer cold, hard legal facts, you will find them elsewhere on this blog. 

Anne Marie Segal is admitted to practice law in New York and Connecticut. 

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Holiday Newsletter – December 2012

Click on the snowman for a full copy of my
Holiday Newsletter

May you have a restful holiday season.
 
Feliz Navidad! 
Joyeux Noel! 
Fröhliche Weihnachten!

and 
Happy Hanukkah!
Chanukah Sameach!
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Protect Them from More than Rain: The Importance of Choosing a Guardian

We try to protect our children from potential dangers – rain, sleet and snow to more ominous worries. What if the worst actually happened, and you were not there to care for your child? Who would do it? It’s a decision you want to plan calmly in advance, not leave to the courts – the judge won’t know that your charming sister-in-law is crazy – or even your own wits during or following a crisis situation.

Protect from Rain

Choosing a guardian can be difficult and filled with emotional and other nuances. In addition, differing opinions between spouses about who should serve as a guardian, in the unlikely event that both parents die while any of their children are under the age of 18, stops many an estate plan in its tracks. While no guardian will ever replace a child’s own parents, a thoughtful choice will help a child cope with his/her loss and readjust to a new life and home.

Factors in Choosing a Guardian

There are a number of factors that affect guardianship decisions, and the weight given to each depends on your personal situation and possible choices. Here are some common points to consider:

Other Parent. If the child’s other parent is still living, there is a “rebuttable presumption” that the parent will be the child’s guardian, absent extenuating circumstances such as abuse.

Willingness to Serve. Of upmost importance is the guardian’s willingness to take on such responsibility. Has or would the guardian agree to serve? Willingly or grudgingly?

Parenting Philosophy. Your choice of guardian should share your parenting philosophy. With what value set do you want your child raised? Can and will your potential guardian take your wishes into account?

Home Life. What type of home life does the potential guardian have right now and is it compatible with your children?

Geography. Where does the guardian live and (if applicable) will your children be able to adapt to a new geographical location? (Special issues, including immigration, are presented with international guardianship.)

Child’s Preferences. What are your child’s preferences, if any? Be aware that Connecticut courts give children a role in the process at age 12. In New York, that age is 14.

Religion and Spirituality. Choice of religion, religious observance or spirituality may be an important factor.

Special Needs. If a child has special needs (or severe allergies), will the guardian be able to address them in a loving way?

Health.  Are there health issues to consider, either of your children, the guardian or the guardian’s own family?

Money Matters.  Can the guardian manage the child’s inheritance or can you choose another individual or institution for money matters (e.g., a financial guardian or trustee)? If the latter, will the guardian be able to interact well your choice for financial management, and vice versa?

For More Information

If you are struggling to choose a guardian, feel free to email me at info@amscounsel.com to request a guardianship worksheet – either to jumpstart the conversation with your spouse or, if you are a single parent, to journal and consider your own potential choices.

Best of luck with your estate planning and other major financial and life decisions.

Please click on Protect Them from More than Rain for a PDF version of this post.

Anne Marie Segal is a lawyer and parent who has struggled with and made guardianship decisions for her own young children. She is admitted to practice law in Connecticut and New York.

Ms. Segal provides estate planning and other legal counsel to businesses and individuals at Law Office of Anne Marie Segal. Please visit her website at www.amscounsel.com for more information.

None of the information posted on this site constitutes legal advice or forms an attorney-client relationship. This is a public forum. Please do not post confidential or fact-specific information regarding your legal questions on this site.

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