Formalizing existing family relationships
Adoption is the legal method by which an individual or couple establishes, legally, a parent-child relationship. Understanding the options and legal procedures available in family planning in this area are key to an informed decision in protecting and enhancing your family.
Adoption
The principal difference between "adoption" and "conservator-ship" (commonly referred to as "child custody") is that adoption legally establishes a permanent parent-child relationship, affording a both the adoptive parent and child those rights and privileges that are available to biological parents by federal, state and local laws, including inheritance, surrogate decision-making in the event of illnesses, and derivative benefits from agencies like Social Security or the Veteran's Administration.
Who can be adopted?
A child residing in this state may be adopted if:
- The parent-child relationship as to each living parent of the child has been terminated or a suit for termination is joined with the suit for adoption;
- The parent whose rights have not been terminated is presently the spouse of the petitioner and the proceeding is for a stepparent adoption;
- The child is at least two years old, the parent-child relationship has been terminated with respect to one parent, the person seeking the adoption has been a managing conservator or has had actual care, possession, and control of the child for a period of six months preceding the adoption or is the child's former stepparent, and the nonterminated parent consents to the adoption; or
- The child is at least two years old, the parent-child relationship has been terminated with respect to one parent, and the person seeking the adoption is the child's former stepparent and has been a managing conservator or has had actual care, possession, and control of the child for a period of one year preceding the adoption.
Who needs to agree to the adoption?
- If a married person asks to adopt a child, that person's spouse must join the petition for adoption.
- If a child is at least 12 years old, he/she must consent to the adoption unless the court waives this requirement due to it being in the child's best interest.
- If the child has a managing conservator, his or her written consent is required unless the managing conservator is also the one bringing the adoption suit OR the court waives this requirement because consent has been refused or revoked without good cause.
What are common forms of adoption?
- Private/Independent Parent Adoption
- Step-Parent Adoption
- Grandparent/Family Member Adoption
- Foster Parent Adoption
Estate Planning for Expanded Family
Family Planning during the adoption process should also include updating or establishing your estate plan. Some important planning for estate planning techniques when adopting a minor include:
Wills and Codicils
Simple Wills - A simple will deals with the disposition of property at death. Also, this kind of will appoints an individual named the "Executor" to handle the affairs of the estate. While a simple will does not address estate tax concerns, it may designate a person to serve as a guardian of minor or disabled children or provide direction for funeral and burial plans.
Wills with Tax Planning - A will with tax planning provisions covers the items contained in a simple will, but also covers estate tax planning to limit estate tax liabilities.
Codicils - While a will typically deals with the totality of an estate, a codicil amends or supplements the terms of a will. Codicils may be useful in updating an estate plan after a recent event or acquisition of property that warrants special attention.
Holographic Wills - A handwritten will that is wholly in the handwriting of the testator and signed by the testator. While Texas courts recognize holographic wills, whether or not the handwritten will someone creates meets all of the legal requirements or provides for all the necessities of a particular estate are essential considerations in the creation and review of a particular will.
Trusts
Trusts can be very effective tools to manage property during life, or direct distribution or management of property at death. Several trust forms exist and can be used independently or jointly in an estate plan. A trust is a legal relationship in which the creator or "settlor" transfers title to property or assets to a trust managed by an individual named the "trustee" who is charged with the duty of preserving and managing the trust assets for the benefit of another called a "beneficiary."
Revocable Living Trust- A trust in which title to assets are transferred to the trust during the lifetime of the settlor. Where not all the assets are transferred to the trust during the settlor's lifetime, probate will be required to complete the funding of the trust. This additional probate step is usually accomplished by a pour-over will that assists in completion of the funding of the trust.
Testamentary Trust- A testamentary trust is contained in the provisions of a will, and most often, considers estate tax implications and any special planning for the beneficiaries of the estate.
Spendthrift Trust- A primary function of a spendthrift trust is to create trust assets that are protected from creditor claims of the trust's beneficiaries.
Life Insurance Trust- A properly created Irrevocable Life Insurance Trust separates the insured from any incidents of ownership and permits the beneficiaries to receive the proceeds or the benefits of the proceeds without estate tax liabilities. A life insurance trust can be a useful tool in paying estate settlement expenses and estate taxes, and funding education for children and grandchildren.
Special Needs Trust - A trust designed to maximize public benefits eligibility to ensure a continuum of care throughout the lifetime of the beneficiary. This trust involves careful planning and continued supervision to ensure that the trust terms stay in conformity with relevant laws and continue to meet the needs of the trust beneficiary.
Directives
Directives are critical elements of any estate plan because they can ensure that your affairs can be managed in the event of disability, illness, or incapacity.
Statutory Durable Power of Attorney - A power of attorney for financial matters can be essential in ensuring that the management of your affairs continues without undue delay or waste to your financial estate in the event you are unable to do so. It is imperative that any one given this kind of delegation of decision making be known to you and trusted by you. Further, because this document establishes a fiduciary relationship, certain rights and obligations attend it. Knowing your rights as the person who has given the power of attorney and even how to revoke it can be essential in preserving your estate or remedying inappropriate uses of the authority granted.
Medical Power of Attorney- Delegating medical decisions to a family member or friend in the event of disability or incapacity can assist in the continuation of treatment and decision making in the provision of your healthcare.
Living Will or "Directive to Physicians"- A living will directs physicians as to your wishes in the event of terminal conditions and life sustaining treatment options if you are unable to communicate your desires.
Designation of Guardian Before the Need Arises- In a duly prepared and signed writing, an individual may designate whom he or she may want to serve as their guardian, if a court determines that such appointment is needed.
Our team at the Law Office of John B. Henry, III, PLLC look forward to discussing your adoption needs and goals. Contact us today!
