Five steps to ensure your estate plan meets your needs

Creating a comprehensive Florida estate plan is the first step in protecting assets for you and your family. But don’t stop there. Here are some tips to ensure your estate is properly organized:

If you have a safe deposit box, name a trusted co-owner of the box so your family can access it without having to get a court order. When you die, your Durable Power of Attorney dies with you, so your executor will not have immediate access to the box.

If you are in the habit of hiding valuables in your home, tell a trusted family member where those hiding places are.

If you use a name that is not your legal name on your bank account or other financial accounts – i.e., Bob Brown instead of Robert Brown – be sure that your alternate name is on your estate planning documents.

If a Florida resident passes away in another state, be sure their Florida address is noted when the death is reported. An out-of-state address on a death certificate can lead to problems at probate.

Be sure the person you have named as your executor or trustee is willing and able to serve. There are many instances when estate planning documents have not been updated, and a named representative has passed away or become disabled, requiring the court to get involved.

Although estates may be smaller after the economic downturn of the last few years, there’s now more room for flexibility, and if you play your cards right, more of your estate will end up going to your heirs rather than to the government.

So what does it mean to play your cards right?

Be specific about the distribution of your estate. Questions about your estate will inevitably lead to fights between family members. Being clear in your will or trust means fewer questions and fewer fights.

Build flexibility into your estate plan. A revocable trust as opposed to an irrevocable trust will give your executor more flexibility to manage assets when they need to be managed.

Reassess (and possibly re-title) how you hold your assets and plan to take advantage of the current exemption ($5.49 million per person, $10.98 million for couples.)

Make gifts now, rather than after you’re gone. Gifting while you are still alive can remove taxable assets from your estate, and since the estate tax exemption is so high, it’s a good time to give. You may also want to consider how much you can accomplish with a pen and checkbook, including paying tuition and medical expenses for your grandchildren with no tax consequences.

But the first thing you need to do is dust off your existing estate plan and take it to a Florida estate planning attorney for review. If you haven’t done so in awhile, it’s time to reassess, revise, and take control again.

At The Estate, Trust and Elder Law Firm, P.L. we help our Treasure Coast clients develop and implement comprehensive estate planning strategies personally tailored to their unique situation, needs, and goals. Contact us for your free initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.

Do I need a will?

When your life changes, your will needs to change as well. You can do this by either modifying your will with a codicil, or by creating a new will. To eliminate any possibilities for confusion, you should consider drawing a new will when you experience a big life change such as:

Divorce – In most states, a divorce decree will nullify any gift made to a former spouse; however, to ensure your assets go where you want them to go, you should draw up a new will following a divorce.

Marriage – No matter if it’s your first marriage or your fourth, you and your new spouse should both create a new will. If there are now stepchildren you want added as beneficiaries, you will need to provide for them by name in your will, unless they have been adopted, in which case they will be considered your legal children.

Birth – Your will should include the establishment of a guardian for any minor children.

Death – If you have named someone as a beneficiary in your will and they before you do, a new will should be created so the assets can be redistributed.

Reviewing your will when life changes – such as a birth, a death, or divorce – will help ensure your will is valid and does what you intend for it to do. Here are some other things you can do to ensure your Florida will is valid:

Make sure it can be found. A common mistake many people make is to lock away their will in a bank safety deposit box, not realizing that it will require a court order to open that box and your loved ones will be without the necessary documents to open probate.

Be careful about who you choose as executor. Naturally you want to name someone who is responsible, but be sure they actually want the job before you name them. In addition, name a second person to serve in case your first choice is unavailable.

Avoid contradictions in estate planning documents. You want to be sure your will doesn’t contradict the choices you have already made for those listed on beneficiary forms for your life insurance policy, retirement accounts, etc.

Name a back-up guardian. One of the most important functions of a will is naming a guardian for minor children. But what if you only named one person, and that person couldn’t take on the responsibility? Naming a second choice for guardian will bypass this potential problem.

Be specific. If you want to disinherit someone, you must state that specifically in your will. In addition, if you have gotten divorced and remarried but have children from your first marriage, you will want to make provisions for both your current spouse and your children from the first marriage. Not doing so could leave your children unintentionally disinherited.

Seek professional guidance. While there are many online options for creating a will, these are not tailored to your specific needs. Seek professional guidance from a qualified estate planning attorney so you can avoid common mistakes that could invalidate your will.

Our experienced and trusted estate planning attorneys have been serving Treasure Coast families for decades, and Michael Fowler is one of only nine attorneys in the state of Florida who is double board-certified in wills trusts and estates and in elder law. Contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.

NC Manufacturer Develops First Sheets to Prevent Bedsores

NC Manufacturer Develops First Sheets to Prevent BedsoresWhat began as a product development project to create a sheet that would help menopausal women with hot flashes sleep better at night has instead turned into sheets that help prevent bedsores.

Precision Fabrics was testing a new synthetic silk fabric it had developed to wick away moisture and heat from hot flashes when a corporate manager’s sister developed several bedsores following cancer treatment. The manager called on the company’s health products team to advance the bed sheet technology it was working on to remedy the problem of bedsores.

Precision Fabrics partnered with Standard Textile, a manufacturer of hospital linens, to test the DermaTherapy sheet. Eleven clinical trials were conducted at several hospitals and the results were promising: bedsores were reduced by 65% to 85%. In June 2016, the FDA approved DermaTherapy as a medical device.

During the trials, the company discovered that bedsores are not caused by pressure as previously thought, but instead by moisture, friction and shear of the bed linen’s interaction with skin. Pure cotton fibers break down with use and become abrasive. When the synthetic silk sheets were used, the fabric helped to manage the friction and moisture. The DermaTherapy sheets have carbon channels and antimicrobial elements that reduce static and odor as well as a treatment to repel stains.

The company said that the DermaTherapy sheets have also reduced the overall infection rates in the clinical trial hospitals from MRSA, E. coli, C.diff and other “super bugs.”

Currently, DermaTherapy is sold online direct to consumers and the company hopes to begin supplying hospitals and long-term care facilities now that it has FDA approval.

If you’d like to learn more about how we can help you with your long-term care and Medicaid planning, please contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.

New Study Finds Dementia Rates Declined Sharply in Seniors Since 2000

New Study Finds Dementia Rates Declined Sharply in Seniors Since 2000A new study of 21,000 people has found that the dementia rates in those over the age of 65 declined 24%, falling from 11.6% in 2000 to 8.8% in 2012.

The University of Michigan Health and Retirement Study was funded by the National Institute on Aging, which is part of the National Institutes of Health. It studied 21,000 people across the country beginning in 1992. The average age of the study participants was 75.

Researchers collected data every two years from study participants, interviewing them about their health, income, cognitive abilities and life circumstances. They also conducted physical tests, took body measurements and gathered blood and saliva samples for the study.

Dementia is a general term for memory loss and cognitive decline. Alzheimer’s disease — believed to be caused by an accumulation of plaque and tangles in the brain — is the most common type of dementia, followed by vascular dementia caused by a stroke.

According to the U.S. Census, the number of Americans over the age of 65 is expected to reach 84 million by the year 2050. With that increase in the senior population comes an anticipated increase in the number of Americans living with some form of dementia.

Researchers said that the decrease in dementia rates since 2000 may be tied to a number of lifestyle factors, including an increase in the educational levels of Americans and better heart health, both of which contribute to brain health. Many studies have shown a link between higher education levels and a lower risk for disease. People who are more educated tend to have better incomes and better access to healthcare. They are also more likely to exercise, have less stress, maintain a healthy weight and not smoke.

“A change in the overall dementia forecast can have a major economic impact,” said lead author Kenneth Langa, M.D., Ph.D., a professor in the U-M Medical School, Institute for Social Research and School of Public Health. “But it does nothing to lessen the impact that each case has on patients and caregivers. This is still going to be a top priority issue for families, and for health policy, now and in the coming decades.”

The study was published in a November 2016 issue of JAMA Internal Medicine by the research team from the University of Michigan.

At The Estate, Trust and Elder Law Firm, P.L. we help our Treasure Coast clients develop and implement comprehensive estate planning strategies personally tailored to their unique situation, needs, and goals.   Contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.

Special Needs Trust Fairness Act Becomes Law

Special Needs Trust Fairness Act Becomes LawIndividuals with disabilities now have the right to create their own self-settled special needs trust (SNT) without having to go to court, thanks to the President’s signing of the 21st Century Cures Act into law on December 13, 2016.

Section 5007 of the 21st Century Cures Act includes language from the Special Needs Trust Fairness Act of 2015, adding the words “the individual” to the existing statute. Prior to this change, disabled individuals without a living parent or grandparent could not create a self-settled SNT without having to go to court.

The effective date of the amendment to the Special Needs Trust Fairness Act of 2015 applies to trusts established on or after December 13, 2016.

A self-settled SNT differs from special needs trusts created by third parties for the benefit of a special needs individual. Special needs trusts are funded with the third party’s assets or other sources and are a common estate planning tool to improve the qualify of life for a disabled individual. Upon the death of the disabled individual, the remaining assets in a third-party trust can pass to other family members.

Self-settled SNTs must include a provision that, upon the death of the disabled individual, the state’s Medicaid agency will be reimbursed for the cost of any benefits received by the individual. Payments from the SNT to the disabled individual may be limited depending on state law and could require an annual accounting to the state Medicaid agency. There are also rules that must be strictly adhered to so that the disabled individual is not disqualified from receiving Medicaid or SSI (Supplemental Security Income) benefits.

If you are considering a special needs trust, you should consult with an experienced special needs estate planning attorney to determine which trust vehicle works best for your needs.

If you’d like to learn more about how we can help you with your estate planning, please contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.

What is the Function of a Florida Health Care Surrogate?

What is the Function of a Florida Health Care Surrogate?It’s human nature not to want to plan ahead for things we don’t want to face, like our own death or an illness that may incapacitate us to the point where we need someone to step in and handle our health care decisions. But when you don’t plan for these events, it is likely that the decisions you would have made for yourself may not be the ones chosen for you. And most of us really don’t want that.

A Florida Health Care Surrogate designation provides you with the opportunity to name a trusted person to make health care decisions for you in case you can’t and also allows you to spell out what kind of medical treatments you do or do not want to receive under certain circumstances.

The person you choose as your healthcare agent does not have to live in Florida, but it should be someone who will travel to wherever you are, if necessary. This person will be responsible for making your healthcare decisions for you, so it should be someone who is reliable and who you can trust to carry out your wishes. They should also be able to carry out their duties regardless of any potential family opposition, as long as they are doing what you have directed.

On October 1, 2016, two key changes to the Florida Health Care Surrogate Act went into effect: (1) the person designated as a health care surrogate can act immediately, prior to any determination of incapacitation; and (2) a parent or guardian may now name a health care surrogate for a minor child in the event the parent/guardian is unable to act.

Choosing the right health care surrogate is a cornerstone of your advance medical directive, which is a written document, properly witnessed by another person that provides instructions concerning any aspect of a person’s health care. Advance medical directives — which include a Living Will — are important to have in place if you ever become too sick or disabled to express your treatment wishes.

Anyone may create a living will that directs medical professionals to withhold or withdraw life-prolonging procedures if that person ever has an end-stage condition like a terminal illness or is in a persistent vegetative state. Upon such a declaration, the health care surrogate to whom the patient has previously given authority per the living will can then instruct the doctor or hospital authorities to remove the patient from life support.

If you’d like to learn more about how we can help you with your long-term care and Medicaid planning, please contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.

What is a HIPAA Release and Why Do You Need One?

What is a HIPAA Release and Why Do You Need One?Congress passed The Health Insurance Portability and Accountability Act (HIPAA) to protect your private medical information and to create a secure way to share health information among providers and insurance companies. Because of the act, disclosure of your medical information is very tightly controlled.

However, potential problems may arise if you suffer an accident or illness that leaves you incapacitated. You have diligently provided a Living Trust and named a Health Care Surrogate as part of your Florida Estate Plan, but it may not be enough. Your Health Care Surrogate cannot legally step in until they know you can no longer make decisions for yourself. If medical personnel will not tell your representative the details of your condition, your surrogate may have to go to court to prove that you are incapacitated. That process is lengthy and expensive, and does not allow for the urgent decision making that such a situation would likely entail.

There is a standard HIPAA release form on Florida’s Agency for Health Care Administration website. You may also have a HIPAA release drafted by an attorney who understands the intricacies of HIPAA and can draft a release that is specific enough that it will be considered valid.

In addition, all of your estate plan documents should be updated to include language that reflects the legal realities of HIPAA.

Like all federal laws, states may make the law more restrictive but cannot make the federal law less restrictive. Florida has chosen to make the HIPAA laws more restrictive; therefore a HIPAA release that is more than 24 months old is no longer valid in Florida. This means if your HIPAA waiver was signed more than two years ago, your doctor does not have to accept it. An experienced Florida estate planning attorney can help you re-execute your HIPAA waiver and release.

At The Estate, Trust and Elder Law Firm, P.L. we help our Treasure Coast clients develop and implement comprehensive estate planning strategies personally tailored to their unique situation, needs, and goals.   Contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.

Understand the Financial Consequences of Gifting Property

Understand the Financial Consequences of Gifting PropertyParents who plan on gifting property to their children should consult with a Florida estate planning attorney since there are usually tax consequences of such a gift, either to the giver or the recipient(s).

For example, let’s say you purchased the property you are planning to gift for $100,000 years ago and the value of that property has appreciated over the years to $400,000. If you gift that property to your children outright and they sell it, their capital gain on the sale would be $300,000. If they sold this year, they would be required to pay a capital gains tax of 15-20 percent depending on their tax bracket.

Say you left that same property to your children in your will. This would enable them to take advantage of the “step up in basis” on the property — meaning the tax basis is based on the value of the home at the time it is inherited. For this inherited property, there would be no capital gains tax to pay.

Another option for gifting property to children is through a qualified personal residence trust (QPRT). A QPRT is an irrevocable trust, and at the time it is established, the grantor must also determine a retained income period before ownership is transferred to the beneficiaries. The trick is to plan this time period so the grantor outlives the term – if the grantor dies before the term expires, the property is returned to the estate and becomes eligible for estate taxes.

Once the retained income period is over, the grantor pays rent to the trust, with the beneficiary becoming the grantor’s landlord. Rent payments are typically made to the trust through a brokerage-type vehicle so the beneficiary pays no income tax on the payments.

Before you transfer property, either through gifting outright or via your will or a trust, be sure you get the tax and legal advice you need to make that gift a welcome one for both you and your children.

The Estate, Trust & Elder Law Firm, P.L., provides attorney services ranging from estate planning for young families to advanced and crisis long-term care for seniors. Contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.

Why It’s Necessary to Review Your Will or Trust

Why It’s Necessary to Review Your Will or TrustJust like a sailor must make corrections to avoid being blown off course, it is necessary to periodically review your estate planning documents — including your will or trust — to determine if any course corrections should be made.

Conducting a proper review of your documents will help identify the potential need to update because of:

Changes in family circumstances – births, deaths, marriages or divorces that may affect the people named in your documents such as beneficiaries, executors, decision-makers, etc.

Changes in law – these include changes to federal and state tax laws or regulations that open up new planning strategies.

Changes in assets – Has your net worth increased or decreased? This may mean that your current plan is no longer a good fit for what you want or need.

Funding of assets – it is common to discover that someone has not properly completed the transfer of assets into their trust, or have beneficiary designations that are inconsistent with the distribution language in their estate plan.

Inevitable changes in your life and/or the law dictate that a thorough review of your planning documents be conducted regularly to ensure that they still comply with your original intent.

A comprehensive review of your estate plan is intended to uncover those “gaps” that might not otherwise be discovered until it is too late. When that happens, it will be your family will have to deal with the unfortunate consequences.

At The Estate, Trust and Elder Law Firm, P.L. we help our Treasure Coast clients develop and implement comprehensive estate planning strategies personally tailored to their unique situation, needs, and goals.   Contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.

How to Choose a Nursing Home

How to Choose a Nursing HomeMany times a sudden accident results in the need to quickly find a nursing home for an elderly person, leaving little or no time to do the proper research. If you are caring for someone who may need a nursing home some day, taking the right steps now to choose the right nursing home could make a world of difference in someone’s life. Here are some tips on choosing a nursing home:

Research the statistics. Medicare has a nursing home ratings system called Nursing Home Compare, which is an online search tool you can use to find facilities in your area and compare inspection ratings. Follow the “Penalties” link for information from the state’s ombudsman and licensing agency on complaints for particular homes. Be sure that the home provides for your loved one’s special needs (i.e., dementia).

Visit facilities. Even if the facility you are looking into has stellar ratings online, you still need to visit it. Take an official tour and be observant, then return for an unannounced visit so you can get a good idea of the daily routine.

Determine who will pay. Medicare will only cover nursing home care for a limited period of time following a hospitalization, after which such care in Florida currently averages around $288 per day for a semi-private room and $over $300 for a private room. If your loved one has long-term care insurance, you will need to find out how much it covers. Once any privately held excess resources and any long-term care insurance benefits are exhausted, your loved one may then qualify for Medicaid to cover most of the basic cost to the extent that exceeds their income.

Find out if there is a waiting list. Many desirable nursing homes have a waiting list, so find out the average wait time and consider getting on the list now if that wait time is lengthy and you envision a need in the near future.

With the proper guidance, you can protect your finances and spare your loved ones the frustration of having to make costly and difficult decisions.  Contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.