Welcome to "Lost in Translation: Blunders in International Estate Planning." This blog series explores the intricacies of international estate planning, uncovering potential pitfalls and providing insights to navigate complexities.
Blunder No. 6: Leaving the United States? Consider Your Kids’ Plans
When U.S. citizens or foreign nationals living or working in the U.S. decide to return to their home country or relocate abroad, their children may have different plans. High school or college-age children might prefer to stay in the U.S. to continue their education or pursue opportunities. This blunder explores crucial considerations parents must make when their children want to remain in the U.S., including legal, educational, and financial factors.
Who Can Make Educational and Medical Decisions for a Minor Child Who Is Not Their Biological or Adopted Child in the U.S.?
In New York State, parents can designate an adult to make educational and medical decisions for their minor child under New York General Obligations Law Section 5-1551, known as the "Designation of Person in Parental Relation." This provision allows parents to legally authorize an adult in New York to make these decisions on their behalf, especially if the child remains in the state to finish the school year or for a more extended period. However, the designation must be renewed annually, requiring both a parent and the designated adult to re-execute the document in front of a notary or notaire.
If Your Child Is Over 18 and Unwell at a U.S. College, Can You Speak with the College Doctors?
Generally, the answer is no. If your child is over 18 and attending college in the U.S., colleges typically require them to sign a Health Care Proxy or other healthcare authorization form before you can legally speak with their doctors or make medical decisions on their behalf. This requirement applies regardless of your or your child's citizenship or residency status. Even if both you and your child are U.S. citizens, this document is necessary to communicate with healthcare providers or approve treatments.
If You Want Your Minor Child to Take an Airplane to Visit You Outside the U.S., Will Airlines Allow Them to Travel Alone?
Airline policies regarding unaccompanied minors vary significantly. Many airlines offer an unaccompanied minor service, where agents escort children through the airport. However, age eligibility for this service differs from one airline to another, and a fee is usually involved. In cases of flight delays or cancellations, some airlines may prohibit unaccompanied minors from flying to avoid the risk of children being stranded due to storms or other disruptions.
If the parents are separated or divorced, a court order concerning custody may require written consent from both parents before a child can travel alone. These requirements can vary depending on the court and jurisdiction.
International flights have stricter regulations for unaccompanied minors. Some airlines do not allow unaccompanied minors on international flights at all, while others may require parents to pay for an escort service for children up to age 17. Children typically require the same passports and visas as adults for international travel. In cases of divorce, some states may require consent from both parents to issue a U.S. passport for the child.
While it is relatively easy for an unaccompanied child to leave the U.S., the requirements in the destination country are often stricter. Many countries have strict entry and exit rules for minors, making it challenging for a child to travel without proper documentation. Unaccompanied children or those traveling without both parents or a legal guardian may need a letter of consent. For international flights, a notarized consent letter from the parents is often required, detailing the child's travel itinerary, accommodation, and the duration of stay.
Always check with the embassy or consulate of the destination country in the U.S. for specific requirements. For further guidance, refer to the pamphlet "When Kids Fly Alone," published by the United States Department of Transportation.
If Both Parents Die, Can Relatives Take Your Minor Children from the U.S. to Your Home Country?
In some U.S. states, such as New York, a court must first appoint a New York-based guardian (who must be a U.S. citizen) as Guardian of the Person for your child. Additionally, a court in your home country must appoint a Foreign Guardian. Once both appointments are made, the New York court will instruct the New York guardian to escort your child to the foreign guardian, either within the U.S. or in your home country.
To help streamline this process, parents can sign a Designation of a New York Person as a Temporary Standby Guardian. Under the Surrogate's Court Procedure Act (SCPA) Section 1726, this document allows the standby guardian to legally care for the child until a permanent guardian is formally appointed by the court.
How Can Your Minor Child Inherit Property if You Pass Away Inside or Outside the U.S.?
If you die and your minor child is in the U.S., the inheritance process can vary by state. In New York, for example, a court must appoint a Guardian of the Property to manage the child's inheritance. The Guardian is responsible for investing the property and must file annual reports with the court until the child reaches adulthood. At that point, the property is transferred to the child.
So, What is the Blunder?
When parents leave the United States and their high school or college-age children remain behind, it is crucial for the parents to consider the legal, personal, and financial consequences of this decision. In many cases, it may be simpler to take your kids with you.
