When contemplating a divorce or once the process has begun, it may be in your best interest to execute a new Power of Attorney, Health Care Proxy and HIPAA Release. You need not wait until a divorce is final to complete updated documents, so that the individual with access to your medical information, the person appointed to make healthcare decisions should you become incapacitated and the person with the ability to take financial action on your behalf is not your soon to be ex-spouse.  

At the time that your divorce is final, it is imperative that you execute a new Last Will and Testament. This would allow you to choose a new personal representative to be responsible to carry out your final wishes and, if necessary, name the person that you would choose to be responsible for caring for your child(ren) and being responsible for their financial decisions.  

While some of these documents cannot be finalized until the divorce is settled, consulting an estate planning attorney prior to or during the divorce proceeding can assist you in advanced planning and provide valuable advice regarding any issues in the divorce that may affect your estate.

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As a general matter, if both parents are willing and able to care for the children, and one of them were to die, the remaining parent would take over physical custody and assume responsibility for the children’s care.  

If a single parent or both parents were to die, there must be a plan in place that addresses the care of the children.  This involves naming a personal guardian for minor children in the will.  Additionally, it is necessary to name a conservator, who is the person that will be in charge of the financial affairs of the children.  While these people are often the same, it does not necessarily have to be the case.  

The most common obstacle parents encounter when preparing their estate plan is choosing whom they should name as legal guardian and/or conservator for their children.  

It is advisable that both parents name the same person as guardian in each of their wills to avoid the possibility of dispute in the event that both parents were to die simultaneously.  

Whether the problem arises because the parents aren’t comfortable with any of their options, cannot agree on the same person, or want to avoid hurting the feelings of those family members not named, this issue can often cause parents to put off the preparation of their estate plan altogether.  

A qualified estate planning attorney can assist in navigating these and other estate planning pitfalls and help put your mind at ease regarding the process of estate planning. 

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