Florida Elder Law Blog - A blog by Elder Law Associates, South Florida's premier elder law attorneys, who handle elder law, medicaid planning, guardianships and much, much more.
Many people think that estate plans are for someone else, not them. They may rationalize that they are too young or don't have enough money to reap the tax benefits of a plan. But as the following list makes clear, estate planning is for everyone, regardless of age or net worth. (For more information on
Florida estate planning, see our
Estate Planning section.)
- Loss of capacity. What if you become incompetent and unable to manage your own affairs? Without a plan the courts will select the person to manage your affairs. With a plan, you pick that person (through a power of attorney).
- Minor children. Who will raise your children if you die? Without a plan, a court will make that decision. With a plan, you are able to nominate the guardian of your choice.
- Dying without a will. Who will inherit your assets? Without a plan, your assets pass to your heirs according to your state's laws of intestacy (dying without a will). Your family members (and perhaps not the ones you would choose) will receive your assets without benefit of your direction or of trust protection. With a plan, you decide who gets your assets, and when and how they receive them.
- Blended families. What if your family is the result of multiple marriages? Without a plan, children from different marriages may not be treated as you would wish. With a plan, you determine what goes to your current spouse and to the children from a prior marriage or marriages.
- Children with special needs. Without a plan, a child with special needs risks being disqualified from receiving Medicaid or SSI benefits, and may have to use his or her inheritance to pay for care. With a plan, you can set up a Supplemental Needs Trust that will allow the child to remain eligible for government benefits while using the trust assets to pay for non-covered expenses.
- Keeping assets in the family. Would you prefer that your assets stay in your own family? Without a plan, your child's spouse may wind up with your money if your child passes away prematurely. If your child divorces his or her current spouse, half of your assets could go to the spouse. With a plan, you can set up a trust that ensures that your assets will stay in your family and, for example, pass to your grandchildren.
- Financial security. Will your spouse and children be able to survive financially? Without a plan and the income replacement provided by life insurance, your family may be unable to maintain its current living standard. With a plan, life insurance can mean that your family will enjoy financial security.
- Retirement accounts. Do you have an IRA or similar retirement account? Without a plan, your designated beneficiary for the retirement account funds may not reflect your current wishes and may result in burdensome tax consequences for your heirs (although the rules regarding the designation of a beneficiary have been eased considerably). With a plan, you can choose the optimal beneficiary.
- Business ownership. Do you own a business? Without a plan, you don't name a successor, thus risking that your family could lose control of the business. With a plan, you choose who will own and control the business after you are gone.
- Avoiding probate. Without a plan, your estate may be subject to delays and excess fees (depending on the state), and your assets will be a matter of public record. With a plan, you can structure things so that probate can be avoided entirely.
As always, never make a decision on these matters, without first consulting a qualified
Florida Estate Planning Attorney.
Labels: florida elder law, Florida Elder Law Attorney, Florida Estate Planning
If we had a crystal ball and could see into the future, we would not need to prepare ahead for end of life decisions.
James was 62 years old when a stroke made it impossible for him to communicate with his family. Neither his wife nor children knew anything about his financial or medical information. James had always taken care of things himself and left no written directives in his behalf. Besides having to locate important documents, the family was left to make their own decisions about James long term care.
The National Institute on Aging gives three simple, but important steps to putting your affairs in order:
- Put your important papers and copies of legal documents in one place. You could set up a file, put everything in a desk or dresser drawer, or just list the information and location of papers in a notebook. If your papers are in a bank safe deposit box, keep copies in a file at home. Check each year to see if there's anything new to add.
- Tell a trusted family member or friend where you put all your important papers. You don't need to tell this friend or family member about your personal affairs, but someone should know where you keep your papers in case of emergency. If you don't have a relative or friend you trust, ask a lawyer to help.
- Give consent in advance for your doctor or lawyer to talk with your caregiver as needed. There may be questions about your care, a bill, or a health insurance claim. Without your consent, your caregiver may not be able to get needed information. You can give your okay in advance to Medicare, a credit card company, your bank, or your doctor. You may need to sign and return a form.
- National Institute on Aging http://www.nia.nih.gov
Preparing Advance Directives or Living Will
Advance directives are legal documents that state the kind of medical care or end of life decisions you want made in your behalf. It is a way for you to communicate your wishes to family or health care professionals. Emergency response medical personnel cannot honor Advance directives or living wills. They are required to save and stabilize a person for transfer to a hospital or emergency facility. Once at the facility a physician will honor the directives.
The Living Will as part of your directives gives your consent or refusal for sustained medical treatment when you are not able to give it yourself. If this document is not in place then a family member or physician will decide such things as:
- Resuscitation if breathing or heartbeat stops
- Use of breathing machines
- Use of feeding tubes
- Medications or medical procedures
Advance Directives and Living Wills are legal throughout the United States; however, some states may not honor other states' directive documents. Be sure to check with the state you live in for their requirements.
Review your directives periodically. They do not expire, but your wishes may change.
A new or revised Advanced Directive invalidates the old one. Be sure your family member or healthcare proxy has a current copy.
Choosing a Power of Attorney
General Power of Attorney - authorizes someone to handle your financial, banking and possibly real estate and government affairs as long as you remain competent.
Special Power of Attorney - authorizes someone you designate to handle certain things you cannot do yourself for a period of time.
"Durable" Power of Attorney -The general, special and health care powers of attorney can all be made "durable" by adding certain text to the document. This means that the document will remain in effect or take effect if you become mentally incompetent.
Many people do not know the difference between a general and a durable power of attorney. A general power of attorney is a document by which you appoint a person to act as your agent.
Agents are authorized to make decisions for you, sign legal documents, etc. Many people are unaware that a General Power of Attorney is revoked when the person granting that power becomes incompetent or incapacitated.
It is the "Durable" Power of Attorney that allows for an agent to continue making decisions on your behalf no matter what happens to you. A responsible adult child of an aging parent would be given a "durable power of attorney" to act on behalf of the parent. This provides broader authority than just adding the child's name to bank accounts and documents.
You may choose to produce notarized power of attorney documents on your own. If your estate is large and real estate or business is included it is advised to secure a reliable Florida Elder Law Attorney.
Labels: Florida Elder Care, florida elder law, Florida Elder Law Attorney, Florida Long Term Care Insurance
