Why All Parents Need Temporary Guardianship and Emergency Planning

December 21, 2010
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What will happen to your kids, elderly parents or other dependents if some emergency situation arose?  Does your estate plan cover these situations?

As we have discussed in many posts, estate planning is not limited to passing your property after death.  We have often referred to Ancillary Documents such as “Durable Powers of Attorney”, “Advance Medical Directives” and “HIPAA Authorizations” as examples of incapacity planning.

However, emergency planning is becoming necessary as well.  For example, what if an elderly parent in your care needs medical attention while you are away on vacation?  Who will be your children’s guardian if you are hospitalized for an extended period?  If you are fatally injured, how will the police know where to take your children, especially if your will cannot be easily found?

The following briefly discusses some newer estate planning techniques that you should strongly consider.

Temporary Guardianship – Your Will Is Not Enough

While you may have nominated a guardian for your children in your will, remember that the person will not be appointed until the court approves.  The process could take weeks or even months, especially if some dispute exists.  Further, the police may be forced to take custody of your children and assign them to child protective services until the guardian is named by the court, despite your instructions in your will.

Fortunately, many (but not all) states, including Virginia, Maryland and Pennsylvania, allow you to name a temporary guardian in writing in advance of any emergency.  You can fill out a form that names who you would want to care for your dependents, as well as the types of emergencies that would activate the guardianship.  The form also enables you to revoke the guardianship at any time.

The temporary (aka standby or “emergency proxy”) guardianship form becomes effective immediately when one of your listed emergencies occur.  Once the police see this form, they can take your kids to your named individual without ever having to place them within a county facility.

Consent to Medical Treatment

What if you are away on a long trip and your child needs medical attention?  Would your friend, neighbor, or relative have the authority to get your child the necessary care?  Would the doctor’s office or hospital accept the child as a patient if a non-relative brought her in without your written consent?

In this case, you should sign a parental consent form prior to your trip, absence, or incapacity.  This will allow your temporary guardian to obtain medical treatment for your dependent more easily.

Release of Medical Information

Since HIPAA was passed (as discussed in this post), more and more caregivers are protecting themselves against penalty by refusing to share any patient information with a third party (such as your personal representative or a temporary guardian).  By signing a release of medical information in advance, or by giving your dependent’s medical history to your temporary guardian, your representative will be able to make more informed choices.

Emergency Card / National Database

Estate planning attorneys are now aligning with companies that maintain national databases of healthcare and emergency information in secure locations.  I myself have recently affiliated with one of the most established of these firms, Docubank, out of Narberth, PA.  The service is quite inexpensive, and most firms include it as part of the initial estate planning setup.

After signing up, the attorney mails or faxes your relevant medical estate planning documents (such as the ones listed above) to the database.  In exchange, you would receive an emergency wallet-sized card for yourself and your children (or other dependents) that contain essential medical information as well as the database company’s phone number.  Upon an emergency, police, medical providers, or emergency personnel can call the database company, which will then have your relevant information faxed or emailed quickly where needed.  Your temporary guardianship or medical treatment can then begin unabated during what would undoubtedly be quite an upsetting time.

Be sure to give strong consideration to adding these features to your estate plan.

 Why All Parents Need Temporary Guardianship and Emergency Planning
 Why All Parents Need Temporary Guardianship and Emergency Planning


Scott R. Zucker, Esq. is the owner of The Zucker Law Firm PLLC, located just outside the Capital Beltway in Annandale, within five miles of the City of Fairfax, the county seat of beautiful Fairfax County, Virginia. The firm focuses mainly on estate planning services for Virginia, Maryland and Pennsylvania clientele, and seeks to do so in an affordable and approachable way. People interested in learning more can contact Scott by phone or email.

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3 Responses to Why All Parents Need Temporary Guardianship and Emergency Planning

  1. December 21, 2010 at 9:40 pm

    Great post this is a key area that is generally overlooked. Thanks for keeping this issue at the forefront.
    Roger Wohlner recently posted..Where to Invest in 2011 – I’m Clueless

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