June 1, 2011
No one wants to think about bad things happening to their family. But, bad things do happen to good people and it is every parent’s responsibility to plan accordingly. A well thought out estate plan should be in every parent’s toolkit, but there are special considerations for the adoptive parent.
Who will take care of your child if you aren’t around? If you don’t specify a guardian for your child in a will, then the courts will. They may not choose the best individual for your child. The adopted child has already experienced trauma and loss in their young life, so it is imperative that you have a plan in place that allows them to feel as safe and secure as possible. Choosing someone your child already knows to be their guardian can go a long way towards making them feel more comfortable during a traumatic transition period.
The person you select as guardian should be familiar with your child’s adoption story and understand your intentions with respect to sharing that story. You should write a letter describing the details of your child’s adoption and any details not yet contained in the child’s lifebook, explaining when you would like your child to learn these facts. The guardian needs to be able to answer your child’s questions about her adoption, including such details as anything known about the birth family, health history, orphanage, foster care etc. If yours was an open or partially-open adoption, make sure that the guardian you select will honor the agreements in place with birth parents about post-adoption contact.
An estate plan can also protect children whose adoptions aren’t final. The law treats an adopted child the same as a biological child. However, this is only true if the adoption is finalized. A child whose adoption is in progress has no rights to your estate. She can only be protected if she is named in a will or trust.
Wills can address special considerations for your adopted child. For example, if you wish your child to be exposed to his or her birth culture, you can specify that and set aside money in a trust for the child to travel to his or her country of origin.
If you have an adopted child with special needs, it’s important to establish a special-needs trust to ensure that his or her needs will continue to be met. This type of trust can set aside money for your child’s care above and beyond what the government provides, and can also help protect your child’s entitlement to government benefits.
Many adoption attorneys are experienced in drafting estate documents for adoptive families. If your adoption attorney does not do estate planning, he or she should be able to refer you to someone who does. However, be sure to select an attorney that has experience representing adoptive families.