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IF YOU HAVE CHILDREN All parents should plan for their children's future. As a parent with HIV or AIDS, perhaps the most difficult and important task you face is arranging for someone else to take care of your children. You need to plan for someone to look after your children if you become very ill, and for someone to raise them if you pass away. Naturally, if the other parent is living and is interested in the children, he or she will usually have the right to care for them, so you may not need to take any steps. The other parent can be denied this right only if you have been granted sole custody or if a court determines that he or she is "unfit". If the other parent has died, has no interest in the children, or if you have sole custody and don't want the other parent raising your children, then you need to find someone else to fill the role of parent. There are two parts to this process. First, you must decide who is the best available person to take care of your children and how much authority you want that person to have. Second, you must sign documents and perhaps go to court so that the person you have chosen will have the legal authority to take care of you children. If you do not take these steps, the State of Louisiana will eventually decide who raises your children, This will usually be the child's closest living relative. Someone who is not a relative would have very little chance of getting custody of the children, even if that person has had a close and loving relationship with them. Even if you wish for your closest relative to care for your children, there are good reasons to state this wish in properly executed legal documents. The transfer of custody will go more smoothly. Also, even before a permanent transfer is necessary, someone else should have written authority to do things such as consent to medical care for your children, or enroll them in school, in the event you become unable to do these things yourself. CHOOSING A GUARDIAN This person does not need to be a relative, although many times a relative is the best choice. Your choice should be someone who loves the children and who is physically and emotionally up to the task of raising them. You should also choose a back-up, in case your first choice becomes unable to look after the children. You can choose a guardian for a limited period of time or for a limited purpose. For example, if you are hospitalized, you may authorize a friend or relative to look after your children for the period that you are in the hospital. You may also reserve the right to make important decisions concerning your children, such as decisions about education or medical care, even though you have given someone else general authority to care for the children. If your children have or will have a significant amount of property, you should also choose someone to look after their financial affairs. This can be the same person that you have chosen to raise the children, or it can be someone else. Once you have made your choice, you need to discuss this with that person to make sure that he or she is willing to accept the responsibility. MAKING THE LEGAL ARRANGEMENTS TEMPORARY TRANSFERS. You can give someone temporary authority to care for your children simply be signing a document called a Provisional Custody by Mandate. The authority given in this document can be as broad or as narrow as you wish. You may revoke the Mandate and take the children back into your own care at any time. However, such a Mandate cannot extend for more than a year from the time you sign it and it has not effect after your death. PERMANENT OR INDEFINITE TRANSFERS. To permanently or indefinitely transfer custody of a child in Louisiana requires court approval. There are three different procedures for doing this. In a court proceeding called a Voluntary Transfer of Custody, you can give someone the right to care for your children for any length of time, including until they are grown. You can reserve visitation rights and the right to make important decisions. However, you cannot unilaterally revoke the transfer: if you wish to take the children back and the other party objects, you will need to go to court and prove that this is in the best interest of the children. Another way to permanently transfer custody is Adoption. This is a court proceeding in which the other person becomes a permanent, legal parent of the children. You retain no legal rights to the children (unless they are being adopted by your spouse) and it is very difficult to reverse an adoption. Your death will have no effect on the other person's right to raise the children. If you do not wish to give up your children while you are living, you can appoint a Tutor who will have no authority until after your death. With a few minor exceptions, the tutor will then have all the legal rights and responsibilities of a parent. You can name a tutor either in your Will or in a separate document. After your death, a court will review your choice of a tutor, so there is no guarantee that the person you name will become tutor. However, the court can reject your choice only if that person is unfit or if someone can prove that another choice is in the best interest of the children. Financial matters. An adoptive parent or a tutor will automatically have authority to manage the children's property. However, if you will be leaving your children a substantial amount of property and if you wish to limit how that property can be used, you may want to establish a trust and name a trustee to manage the property. It is unclear whether a person who has custody under a Voluntary Transfer of Custody has authority to manage property. Thus it is more important to make specific arrangements for financial matters in this case. AIDSLaw SERVICES AIDSLaw of Louisiana, Inc. provides free assistance with HIV-related legal problems. This brochure is designed to provide general information. Although this brochure is prepared by professionals, it should not be used as a substitute for professional services. If legal or other professional advice is required, the services of a professional should be sought. AIDSLaw can provide legal assistance or referrals to persons needing services. In addition to the issue of child custody discussed in this booklet, HIV-infection makes it important for you to think about several other issues, such as confidentiality and discrimination, estate planning, and insurance and financial planning. The AIDSLaw staff can provide you with additional information on these subjects and, when necessary, refer you to an HIV-sensitive and experienced attorney. If you are unable to afford an attorney, we will arrange for you to see one on a reduced or no cost basis.