The most important decision new parents must make in creating an Estate Plan or updating an Estate Plan is who they want to take physical custody of their children if they should be temporarily disabled or die. This person can be the same person or a different person than the one who is selected to care for the child’s finances.

To make this choice, it is important to understand the circumstances in which this person would assume this role and what their duties and powers would be. 

In Washington, if there are two biological or adoptive parents who are both willing and able to care for a minor child and both are taking part in raising the child, then if one parent dies the other will have the right to assume full custody of the child, whether the parents are still married or not. If both parents die or are temporarily disabled so that they cannot care for their child, any willing and able adult can come forward and the court must choose between them based on the best interests of the child.

The person who takes physical custody of your child is known as the guardian of the person of your child. They are in charge of choosing where your child lives, health care choices, and education choices. They are also the ones to take over the key intangible parenting responsibilities of providing attention and affection and providing social, ethical, and religious training modeling. 

While parents do not have to name the same person in their wills to serve as guardians it is usually better for all involved if they can come to an agreement so that it isn’t left to fate based on who dies first. You must also decide whether to name a single individual or couple. If you select a couple, the court will decide custody as between them if they should later divorce.

Most important, the person must be willing to accept the appointment and should ideally be willing to be spend some time talking to you about what your expectations are and establishing a strong relationship with your child while you are alive and healthy. Don’t forget that this isn’t a draft. Ask the person you select to make sure they are able and willing to serve in this capacity.

Need some insight on the process of choosing someone?  We're here to help!  You can contact us via email or call 206.459.1908.  

On September 16, 2014 the Washington State Court of Appeals, Division II issued a new opinion, In re Marriage of Byerley, that addressed the ways courts should determine whether homes lived in by unmarried couples should be treated as quasi-community property.   

By way of background, Washington State has for many years had case law that allowed courts to treat property acquired by unmarried couples who were living in "intimate and committed" relationship as "quasi community property" and divide that property between them when that would be the most equitable outcome.  These laws have applied to both same sex and opposite sex couples, but one of the public policy issues such cases seemed to be aimed at addressing was ways to allow same sex couple, unable to legally marry, to have their property divided at breakup or death in the same way married couples were allowed to do so.  It has been unclear how strong the courts commitment to this case law would be with the legalization of same sex marriage and this case is one of the first in recent years to appear to take a less generous stance on quasi community property.   

In Byerley, the couple were married and seeking a divorce.  One of the disputed assets was a property purchased by the husband, before the marriage but around the time that the couple began living together in an intimate and committed relationship.  The husband signed a purchase and sale agreement in July of 1996, took title in September of 1996, and began living in the house with his then girlfriend, soon to be wife, at that same time.  The house was titled in his name alone and refinanced several times in his name alone.  The couple used joint resources to pay the mortgage and other household expenses.  The trial court found that the property had been acquired during the relationship and was to be treated as quasi-community property.  The appellate court disagreed.  It held that the property was "acquired" for purposes of determining its characterization on the date the purchase and sale agreement was signed, not the date the deed transferred.  Therefore, it was acquired before the couple began living together and was assumed to be separate property absent evidence that the party who owned it as separate property intended to transfer it to the community.   

It is not uncommon now for unmarried couples to live together in homes one of them purchased prior to the relationship.  As joint assets are used to maintain the property and improve it, the nature of the property can become less clear and this can lead to serious problems when the couple splits or one dies.  Couples wishing to avoid such disputes are often best served by setting out how that property should be treated in a co-habitation agreement that states what property will remain separate and what will be treated as community property.  While this most recent case seems to be a bit of a reversal of the trend to find greater and greater rights to quasi-community property, it also shows how contentious and expensive such disputes can become.  

If you are interested in finding out more about how to create a co-habitation agreement with your partner, contact us to schedule a free half hour consultation at (206) 459-1908 or info@phinneyestatelaw.com.

Many Seniors have legitimate and serious concerns about the ways that normal aging and the health crises that become more common with age will impact their ability to live with independence and dignity. Others fear that medical choices made when they can no longer make choices for themselves will result in their either not getting care they need and want or being kept artificially alive while they are suffering or no longer meaningfully alive.

Seniors wanting to tackle these issues need to start by having a working understanding of the kinds of legal documents that can be executed to create a good plan for making health care choices if they become incapacitated or otherwise unable to provide informed consent for health care.

The most basic and most important end of life document is a valid Durable Power of Attorney for Health Care (DPOAH) naming someone as the patient’s Health Care Agent. A Health Care Agent is the person who will make all medical decisions for the patient should they find themselves in a medical crisis and unable to provide informed consent either because they cannot communicate or cannot adequately understand their medical options.

Many people assume that a spouse or adult child is their automatic Health Care Agent. Under Washington State’s default statute for those who do not make their own plan, spouses and registered domestic partners are given priority in decision making, followed by adult children. However, the ultimate decision maker is the patient’s guardian, if one exists, and family disputes can erupt and health care decisions can be delayed if family members or friends attempt to be named guardian when there is a lack of consensus about care. For those who are single and have either multiple children or no children the need to make it clear who has decision making authority is even more important. 

In any case, medical crisis decision making usually goes best when it is clear who the decision maker is and medical providers are confident that disputes about who is in charge are not part of the equation. That clarity is best provided by a DPOAH.

Want to learn more?  Be sure to contact us for a free 1/2 hour consultation.  You can email us at info@phinneyestatelaw.com or call 206.459.1908.

Aging and Disability Services — the Area Agency on Aging for Seattle-King County wants to get the word out about two programs that help families navigate the elder care maze.

• Senior Information & Assistance (1-888-4ELDERS) is for anyone age 60+ and their family members who needs help identifying resources that meet their needs.
• The King County Caregiver Support Network provides guidance to unpaid primary caregivers of adults of any age who are unable to care for themselves—typically family members or close friends or neighbors.

Leaving things to much younger relatives?  Here is some information to help you understand the terms.  




Generation Skipping Transfer: A transfer of property, whether during life or at death and whether outright or in trust, to an individual (eg, a grandchild) who is two or more generations younger than the donor.

Generation Skipping Transfer TAx ("GST TAX")
A tax levied on all generation skipping transfers to the extent that the cumulative value of all such transfers exceeds the generation skipping transfer tax exemption amount, currently $5.4 million.  Decedent's generation skipping transfer tax information is reported on Schedule R: Generation-Skipping Transfer Tax of decedent's federal estate tax return (Form 706).

Generation Skipping Trust
Any trust having a beneficiary who is two or more generations younger than the trustor.

Want to learn more?  Be sure to contact us for a free 1/2 hour consultation.  You can email us at info@phinneyestatelaw.com or call 206.459.1908.

The legal criteria in Washington requires that an agent must be at least 18 years old and not be the patient’s doctor or other employee of their medical provider unless they are also an immediate family member. Otherwise, anyone who is willing can serve. 

 In naming a Health Care Agent, it is usually easiest to name one agent to serve at a time, with at least one successor, or back-up person, in case the first person is not available when needed.  However, there may be good reasons for selecting more than one person to serve at a time as well, such as a desire to include all of the patient’s children. 

 If the patient chooses more than one person they will need to include how they want decisions to be made (i.e., all must agree versus majority rule). It is also possible to include a request that the primary agent consult with others, be it family members or a close friend with greater medical knowledge, while still leaving only one final decision maker.

If the best agent lives far away, it is possible to name someone the patient trusts who lives nearby to serve as a temporary agent until your choice agent is able to come to the treatment facility, if the person the patient most trusts to make the ultimate decisions lives far away.

If there are no good choices among family members or friends, there are professional fiduciaries who can serve as agents.

An attorney familiar with disability planning can help the patient to think through the pros and cons of various arrangements and think creatively about solutions to potential problems that might arise.

Want to learn more?  Be sure to contact us for a free 1/2 hour consultation.  You can email us at info@phinneyestatelaw.com or call 206.459.1908.