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If you have children and you are HIV positive, it is not too early
to plan for your children'sneeds. In the future,you will be focused
on your health and on your fight with this life- threatening
illness
This brochure will discuss the different legal steps you can take to
provide for your children's care and for their financial needs. With
the help of this brochure and an attorney, you can plan the course of
action that will best help you and your children. You should also
read the SALSA brochure entitled "Making Your Will".
- WHAT HAPPENS IF I DON'T MAKE PLANS FOR MY CHILDREN?
- GUARDIANSHIP
- FOSTER CARE
- ADOPTION
- AUTHORIZATION FOR MEDICAL TREATMENT
- MAKING YOUR DECISIONS
- INFORMATION ABOUT YOUR CHILDREN
WHAT HAPPENS IF I DON'T MAKE PLANS FOR MY
CHILDREN?
If you do not make arrangements for the care of your children, those
decisions will be made foryou by your family and/or the courts when
you become too ill to care for them, or if you die. Unless other
arrangements have been made, custody of your children will most
likely go to their other parent. If the other parent is not alive or
is unable or unwilling to care for your children, then they may be
placed with your relatives or the relatives of the other parent. If
there is another adult who has been like a parent to your children
but is not related to them by blood, you need to make other
arrangements for this person to care for your children. This is
especially important for persons who are in same sex relationships
and have been parenting together. The surviving lover may have a very
difficult time convincing the courts that he or she is the
appropriate person to care for your children.
in addition, if you do not make arrangements regarding money or
property which you want to leave to your children, your family and/or
the court will make those decisions for you. Money or property that
you leave to your children will most likely go to the person who will
have custody of your children upon your death for use in the
children's care unless you have made some other arrangements
Also, any plans you make for the care of your children can affect
what benefits they may be entitled to after your death. For instance,
if you are receiving Aid to Families with Dependent Children (AFDC)
and a guardian is named by the court to care for your children, or
your children are placed in foster care, your children will continue
to receive AFDC benefits. Also, if you are entitled to Social
Security Disability Insurance (SSDI), your children will still
receive a 5255 lump sum death benefit if you die. (The death benefit
does not apply to SSI). However, adoption may extinguish the right of
your children to receive foster care, AFDC, or Social Security
Benefits.
By planning early, you can avoid conflict over who will take care of
your children. You can give your children the security and comfort of
knowing who will take care of them if you become unable to do so.
This will help them while they struggle with their feelings about
your illness.
WHAT CAN I DO FOR MY CHILDREN?
_ If you are a single parent and your children's other parent is dead
or unknown, you can choose who will care for your children when you
are ill and who will raise them after you die. The legal term for
this person is a "guardian".
_ If you have custody of your children and their other parent is
unable or unwilling to care for them, you can choose their
guardian.
_ If you have custody of your children, you can choose someone to
make decisions about their medical care while you are ill and unable
to make these decisions. The form you sign to give this power to
someone is called an " Authorization for Medical Treatment".
_ Whether or not you have custody of your children, you can choose
who will manage any money or property you leave them. The legal term
for this person is a "guardian of the estate".
WHAT YOU CANNOT DO: If your children's other parent is alive,
willing and able to care for them, you cannot choose another person
to take care of and raise them without the other parent's agreement.
However, you can still name a guardian of the estate to manage any
money or property that you wish to leave your children.
Also, if you do not have custody of your children, you cannot
authorize another person to obtain medical treatment for them.
GUARDIANSHIP
A guardian is the person named by the court to take care of and, if
necessary, raise your children while you are ill or after your death.
Guardianship can be given to an adult whether or nott hey are blood
relatives of your children. As mentioned above, there are two types
of guardianships: "guardianship of the person" and "guardianship of
the estate".
Guardianship of the Person
Guardianship of the person gives the guardian custody of your
children with varying degrees of parental responsibilities which are
determined by the court. Generally, the guardian has responsibility
for the care, custody, control, and education of your children. Some
examples of the decisions a guardian may be authorized to make
include enrolling your children in school, obtaining medical
treatment for them, and moving them to another city or state.
Guardianship of the Estate
Guardianship of the estate gives the guardian the authority to take
care of your children's money and property. The guardian is required
to report to the court periodically while the children are minors
(under 18). You can nominate the same person as guardian of the
person and the estate, or you can nominate a different person for
each. Also, you can nominate different guardians for different
children or the same guardian for all your children.
Nominating a Guardian
You can nominate the person you wish to be guardian either at a court
proceeding or in your will. Nominating a guardian does not guarantee
that that person will be appointed guardian by the court. The court
will take your wishes into account in deciding who should raise your
children when you are. no longer able to care for them, or after you
die. However, the court is not bound by your nomination if someone
else should convince the court that they are a more suitable person
to be guardian.
If you believe that any of your family would disagree with your
nomination of a certain guardian, you should consider going through
the guardianship proceeding while you are alive and well so that you
can testify why you have selected that person to be guardian. The
court procedure involves one or two court appearances at the time the
guardianship is created. The whole process may take several months to
complete so it is better to not wait until the last minute.
Under current state law, if the court names a guardian while you are
alive, you lose all your parental rights. However, there are
amendments to the California Probate Code that are pending in the
legislature which would create another guardianship option called
"standby quardianship". Standby guardianship would allow a court to
appoint both you and a person nominated by you as "joint guardians"
in the event that you have been diagnosed with a terminal illness.
Standby guardianship authorizes both you and another person to make
decisions about your children. It does not terminate your parental
rights. When you are too ill to care for your children, or you die,
the guardianship continues in the other person. "Standby
guardianship" would allow you to plan for your children much earlier
because you would not have to give up your rights as a parent at the
time the guardianship is created. Be sure to talk with an attorney to
find out the current status of the law. Call your local SALSA office
for a referral.
A person nominated to be a guardian will be investigated by the
county, who will send a worker to their home to make sure it is
adequate for your children. This process is similar to that involving
adoption or foster care but is not as thorough. Once the guardianship
is approved by the court, the county has no further contact with the
guardian unless she or he is receiving county benefits for the
children.
Public Benefits
A guardian is eligible to receive foster care payments if he or she
is not related to your children. If he or she is related to your
children, the guardian is eligible for AFDC Under a guardianship!
your children may be eligible for county medical benefits. Also,
guardianship does not interfere with your children's right to receive
social security benefits. If the guardian receives financialbenefits
such as foster care payments or AFDC, he or she will be assigned a
county social worker who will meet with the guardian and your
children several times each year.
FOSTER CARE
If you have not made any arrangements foryour children, they may be
put in a temporary fosterhome upon your death or during such time as
you are too ill to care for them. Foster homes are available for your
children if they do not have any relatives or friends who can provide
a home for them. Also, your children may be put in a foster home whim
your family argues about who should raise them. It is likely that the
county would place your children with one of your relatives while a
decision was being made.
If you request that the county place your children in foster care,
you do not have the right to select the family with whom they are
placed. It is much better if you can choose a relative, lover, or
friend to care for your children by arranging for a guardianship or
for licensing the person you have chosen as a foster parent. As
mentioned before, a non-relative who has guardianship of your
children may be eligible for the same foster care payments as any
other foster parent.
In order to place your children in foster care while you are alive, a
court action in Juvenile Court is required. You have a right to a
free attorney during this court proceeding if you are unable to
afford one. While your children are in foster care, you have the
right to visit with them. You also have the right to receive help
from the county, such as counseling or housing, to make it possible
for your children to live with you.
ADOPTION
Adoption is a court procedure which allows another adult to be
appointed the legal parent of your children. It requires the
permission of both biological parents. Adoption relinquishes all your
legal rights and responsibilities to your children. If you choose
adoption, you should also consider any financial benefits which your
children may lose as a result of the adoption. For example, once
adopted, your children would not automatically inherit from your or
your relatives' estate but instead would inherit from the estate of
the new legal parent, unless you have a will.
AUTHORIZATION FOR MEDICAL TREATMENT
This form allows you to give another adult the power to obtain
medical treatment for your children. It is a useful document when you
are ill and/or hospitalized and wish for someone else to arrange
medical or dental treatment for your children. It is valid only while
you are alive and while you have custody of your children. It is no
substitute for a guardianship or foster care
MAKING YOUR DECISIONS
Once you have selected the person or persons you wish to care
foryour children, sit down and talk with them in detail about what
this will involve. If they are willing and able to take on the
responsibility of caring for your children, then you can make a
decision about what to do next. In making your decision, you must
consider the mental and emotional needs of both you and your
children. Also, you need to take into account the financial
consequences of the legal steps you take.
Think about the choices presented in this brochure, even the ones you
don't think you are interested in, and talk with an attorney about
them. The discussion in this brochure is very brief and is no
substitute for talking with an attorney. It is designed to help you
start thinking about these decisions and to encourage you to make
plans for your children early. Call your local SALSA office for an
attorney referral.
To assist you and your attorney in discussing your options, you
should answer the following questions before your meeting. If you do
not understand a particular question, ask your attorney. You will
also find it helpful to read the SALSA brochure "Making Your
Will".
INFORMATION ABOUT YOUR CHILDREN
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Date of Birth |
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