By Vincent B. “Chip” LoCoco: A New Orleans Estate Planning Attorney
Tutorship in estate planning refers to the legal process of designating a person or entity to care for minor children if the primary caregiver dies or becomes unable to care for them. It’s a crucial component of a comprehensive estate plan, ensuring the well-being of dependents. In every other state of the union, this concept is called Guardianship, but here in unique Louisiana, it’s known as Tutorship. Under the law, the person who is control of the minor child is called the tutor.
So when one parent dies, the surviving parent, by law, is the natural tutor for any minor children of the marriage. But what happens if both parents die tragically in a common occurrence?
Key Elements of Tutorship in Estate Planning:
If no tutor is named, the court will appoint one, often based on family relationships, though this might not reflect the parents’ wishes.
Tutor for Minor Children:
Parents can name a tutor in their will to take custody of minor children if they pass away. This tutor will be responsible for the child’s upbringing, education, healthcare, and general well-being. The parents can also, and should, name an under-tutor, which acts like a backup to the tutor, in case the tutor can no longer serve.
Why It’s Important:
- Tutorship ensures that your wishes for your dependents’ care are respected.
- It prevents family disputes or court-appointed tutorship that may not align with your values.
- Properly planning for tutorship can provide peace of mind, knowing your loved ones will be cared for in accordance with your desires.
Trustee vs. Tutor:
- A trustee manages financial assets held in a trust for the benefit of minor children, while a tutor is responsible for their personal care. These roles can be held by different individuals, or they may be the same. When crafting your will, you should consider not only appointing a tutor, but establishing a trust for your minor children with a trustee to manage those assets until such an age when the child can care for those assets themselves.
Continuing tutorship
Continuing Tutorship is a legal concept in Louisiana that is designed for parents to maintain authority over the child with a developmental disability beyond the age of majority (18 years old). It allows the parent to make decisions for the individual who, due to intellectual disabilities or other developmental issues, is not able to manage their own personal or financial affairs even after reaching adulthood. To obtain a continuing tutorship, the parents must file a petition in court, typically in the district where they reside.The court may require a medical or psychological evaluation to confirm the individual’s intellectual disability and need for continuing tutorship. A judge will review the evidence and, if satisfied that tutorship is in the best interest of the individual, will grant the order. Continuing tutorship generally remains in place indefinitely, or until the court decides that it’s no longer necessary, typically due to a change in the individual’s condition.
In closing, if you have minor children, please don’t overlook the importance of appointing a tutor and under tutor as part of your overall estate plan.