Estate Planning is for Everyone: U.S. Citizens, Green Card Holders, Foreign Investors...and Illegal Immigrants Too

The last few weeks have been overwhelming with news alerts every single day, sometimes multiple times a day, in regards to the immigration laws in the United States. The new Trump administration has announced its policies and recommendations to the Department of Homeland Security to enforce existing deportation laws by giving the Immigration and Customs Enforcement department thousands of new agents and broader discretion to arrest and deport.

It seems that every news channel is focusing on the deportation itself and what to do if you are approached by the police or detained, with immigration attorneys explaining your rights if it in fact happens to you. But no one has brought up estate planning for individuals and families that are out of status in this country. What if you are deported? Have you prepared a power of attorney naming someone to make financial decisions or execute contracts on your behalf? Have you prepared a healthcare directive to appoint another person to have access to your medical records? Most importantly, have you prepared a designation of guardian for your minor children if you are gone? These are tough questions, but anyone – a U.S. Citizen, green card holder and foreign investor too can find themselves in a similar legal situation in the event of incapacity or death. If you are not in legal status you probably won’t have the opportunity to prepare these documents if you are already in custody of immigration officials.

Here are some important things to keep in mind:

1.      The 4th amendment rights of the United States Constitution provides, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Remember, if you give consent then you allow voluntarily a search or seizure.

2.      Even if you are not illegal but you are nervous, as a precaution carry at all times a copy of your green card or proof that you have a valid status or visa.

3.      A power of attorney will allow the person you choose to rent, sell or maintain your home and other real estate, pay bills and transfer money to you, manage your assets while you are outside the United States and even hire a lawyer for you.

4.      A healthcare directive not only gives the power to the person you appoint to make medical decisions on your behalf, that person will also be able to obtain and review your medical records in case you need them in your country.

5.      A guardian designation for your minor child is very important to have in the event of your death or incapacity, but also if you are unable to return to this country. This will protect your children, keep them out of the legal custody system and give them the security of a guardian you choose for them.

At our Orlando estate planning law firm, Paula Montoya Law, we can help you decide which estate planning options are best for you and your family regardless of immigration status or size of wealth.