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Law Offices of Ronald W. Rutz
Senior Voice Archives

June 7, 2000: Providing for Parents; Grandparents' Visitation Rights

Q: I know I need a Will to protect my minor children if something happens to both of us, but how can I protect Dad? He has nothing, except social security, and may have to go to a nursing home some day.

A: The kind of will you need for your children is called a testamentary trust will. The trust is built into the will and is there if needed, such as if both of you are gone and the children are too young to receive their inheritance directly.

But that same kind of trust can be used to protect and to provide for a parent by also including your Dad as a beneficiary and inserting the special medicad language to prevent having the trust assets disqualify him from eligibility for programs such as medicad or having to use up all of the trust assets before receiving assistance. Thus your children and your Dad are protected by the trust.

In order to reinforce the trust, distributions by the trustee should be completely discretionary but you should also leave a nonbinding side memorandum or instructions advising the trustee on certain key issues, such as how much to retain in the trust for your Dad after the children reach certain ages. Thus, the trust will permit your trustee to make these same kinds of decisions the way you would if you had survived.

Besides you doing a testamentary trust will, try to have your Dad sign a Durable Power of Attorney that permits his agent to make any decision including medical ones, that he could make for himself. Be sure that the necessary elder law powers are included. Yes, you can buy a form or get one through your computer program. But the Durable Power of Attorney done by a Colorado lawyer, knowledgeable in this area, will be head and shoulders above those other sources.

Finally, if your Dad refuses to sign a Durable Power or Attorney, at least try to get him to add someone to his checking account.

Q: Did the Supreme Court just strike down a law that would permit grandparents to have visitation rights to see grandchildren?

A: Yes and no. The statute that was declared unconstitutional would have permitted a number of "interested" persons besides grandparents to petition the divorce court seeking visitation rights. The Supreme Court felt the law was just too broad.

Other state statutes have been much more strictly drawn and probably stand a better chance of being upheld. But the consensus among attorneys I talked with is that in the absence of a statute, grandparents have an almost impossible task of gaining court enforceable visitation rights.

So take heart that the Supreme Court decision did not slam the legal door on grandparents. But the issue will be back and we will know more in the near future.

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