Florida Estate Planning You Need When You Have Minor Children

We know that it can be challenging to think about who will care for your children in the event of your death. Although this challenge may start with identifying who would care for them in a crisis, have you thought about how difficult it would be for your children and this person if you do not outline your wishes in advance?

One way to ensure your children are not left to the court to decide these unanswered questions is for you to set up a comprehensive estate plan. This important set of documents we want to discuss with you right now provides you with flexibility to detail legal specifics, such as who has access to your finances and who is responsible for making important decisions. By planning early, you can choose the guardian who will watch over your children.

Our goal is to share tips for you to consider about creating an estate plan so you can establish the right authority for your children and address your unique planning needs.

Tip 1. Regularly check-in with your chosen guardian to ensure he or she is the best person for the job.

There may come a time when you no longer think the person you initially chose to take care of your children is still the best person to undertake that role. By being proactive and checking in with your chosen guardian occasionally, you can ensure you are on the same page about your children’s care. Consider whether the guardian shares similar ideals to you. Does he or she respect your religious beliefs? Does he or she understand your goals for your children’s future? Does he or she know what motivates your children? It is important to reflect on these questions from time-to-time so you can remain comfortable with the choice you made.

Tip 2. Ensure your chosen guardian is prepared to take on the additional financial responsibility.

There is no doubt about it, raising children is costly. That is why it is important for you to financially prepare for your children’s future through an estate plan. One of the benefits of creating an estate plan is that you can set up trusts for your children and determine at what age they receive the funds within them. Although it is ideal that your chosen guardian will be financially responsible, you may wish to consider whether you would like to assist with the guardian’s personal finances such as a house or car payment while he or she is still caring for your children. This can all be identified and discussed with your estate planning attorney, and then outlined in your estate plan.

Tip 3. Discuss your decision with both your spouse and an estate planning attorney.

Above all, it is crucial to see eye-to-eye with your spouse on who to appoint as your children’s guardian. While you both may have different goals or requirements, it is imperative that you agree on who will take on this fundamental role in your children’s lives. An effective way to sort through this is to discuss your decision with an estate planning attorney. He or she can present all of the planning options available to fit your unique needs and help answer any and all questions you may have.

Did this article raise questions for you? Do not wait to contact our local legal team. We are the estate planning attorneys here to support you.

A Personal Care Agreement Can Eliminate Elder-Care Family Conflicts

The transition from matriarch or patriarch to dependent senior can be tough. Even the most functional and well-meaning families can be reduced to ugly conflicts when it comes to deciding the best course of action regarding caregiving services for an elder parent. In many situations, a parent declines caregiving services initially provided by family members. Usually a particular adult child of the elder parent becomes the default caregiver.

In reality, women comprise about seventy-five percent of all elder caregivers both inside and outside of families. This can be stressful, exhausting, and emotionally difficult, not to mention financially burdensome as out-of-pocket costs mount over time.

Opportunities for income generating activities such as work and personal commitments are also sacrificed in exchange for time spent with the aging, dependent parent. It is indeed a labor of love, but not one without quantifiable costs that may well deserve reimbursement and compensation.

One way to protect the adult caregiver, while at the same time protecting the elder parent and alleviating conflict with other family members, is to formally agree on the terms of a caregiving arrangement. In Florida, such contracts are known as Personal Care Agreements, or family caregiver contracts.

Personal Care Agreements are legally binding and offer the family caregiver a sense of security in that he or she will not be taken advantage of by incurring undue financial burdens. After all, they’re the ones showing up for the family’s elder parent. Why should they be effectively punished for it? Further, the benefit of a Personal Care Agreement for the elder parent is that the parent has someone who can afford to be close to them around the clock and who they can trust for help with daily activities. They’re family caregiver can also function as their advocate regarding important financial, legal and health care matters.

Personal Care Agreements have three main parts: They must be in writing, they can only be forward-looking, as opposed to requiring payment for past care services, and any express compensation must be comparable to market caregiving labor costs. With the reality that one day the parent may need more long-term care assistance and need to qualify for a program such as Medicaid, it is crucial for these contracts to be prepared for the family by an elder law attorney.

Additional features of these type of agreements can include:

  • Detailed descriptions of services to be provided
  • A reasonable hourly, weekly or biweekly price for services provided
  • A beginning date and an end date
  • A statement of mutual agreement when modifying the contract
  • Signatures of those involved

We know you may have more questions about Personal Care Agreements and whether or not they are a good fit for your family. Do not wait to contact us to ask us your questions on this or any other elder law issue.

Can Your Florida Power of Attorney Do What You Need It To?

As much as you can try to plan for every situation that may arise throughout your life, inevitably some unexpected circumstances can come up. While an estate plan cannot prevent accidents or illnesses from occurring, it can provide you and your loved ones with peace of mind.

Estate planning is more than just creating a last will and testament or setting up a trust agreement. There are many different planning options available, each one designed to help you meet your planning goals. One such plan, a durable power of attorney, ensures that your affairs are handled by someone you trust if you become incapacitated and unable to make important decisions for yourself.

We want to share with you some of the commonly asked questions we receive from our clients about the Florida durable power of attorney so that you are able to make an informed decision about the right estate plan to help you reach your goals.

1. What is a power of attorney and why should it be “durable”?

Generally, a power of attorney is a legal document that designates a close friend, family member, or trusted advisor as your agent. That individual will be responsible for making important decisions on your behalf, such as accessing all of your accounts, applying for Medicaid for you, or even creating an emergency estate plan. “Durable” means that the provisions within the document stay in effect if you become unable to handle your own matters, or otherwise incapacitated.

2. How do I choose an agent?

Perhaps the most important decision when establishing a Florida durable power of attorney is who you appoint as your agent. It is crucial to designate someone you trust completely, as you should feel comfortable with that person making important decisions for you. Remember, if you do not appoint an agent yourself, you may lose the ability to do so if you become incapacitated.

3. Can I create this document without a Florida estate planning attorney?

A durable power of attorney is too important to establish without the help and guidance from your Florida estate planning attorney. He or she will be able to be a resource for you throughout the planning process, ensuring your documents are executed in accordance with Florida law. It is crucial to complete estate planning while you are competent to do so. If your durable power of attorney document leaves any responsibilities unassigned, your loved ones may be forced to seek court-approved guardianship of you. This proceeding is lengthy and costly, and typically results in the court appointing a person to handle your affairs. Avoid this unnecessary proceeding by discussing your options with your trusted estate planning attorney.

These are just a few of the questions our clients ask us. Do you have additional questions about durable power of attorney or other estate planning options? Do not wait to talk to our office about the legal planning that you need.

Is a Testamentary Trust Right for Your Family?

Many of our clients tell us that estate planning, at first, can be a challenging task. This is understandable. Effective estate planning requires you to carefully consider what will happen to your assets when you’re no longer here.

We want you to think through your estate planning needs very carefully and evaluate all of the available planning alternatives with our support. Our goal is for you to rest assured that your assets will be protected and your loved ones well taken care of in the event of your death.

Let us share with you some commonly asked questions about establishing a testamentary trust, so you can make an informative decision on whether it may the right estate plan for you and your family.

What is a testamentary trust?

A testamentary trust, or will trust, is one that is provided for in a last will and testament. The will sets forth instructions to the personal representative of the estate to create a trust. Although the will is drafted while the grantor is still living, the trust itself does not exist until the will is probated upon the creator’s death. The grantor appoints a trustee to manage the assets and funds in the trust until a designated beneficiary takes over.

How does a testamentary trust differ from a revocable trust?

On the most basic level, a revocable trust differs from a testamentary trust in its formation. A revocable trust is set up while the grantor is still alive, while a testamentary trust is established upon the death of the creator. Further, families seeking to avoid the probate process may opt to create a revocable trust, as a testamentary trust guarantees judicial probate. However, to take advantage of this benefit, the grantor must work with his or her attorney to continue to place assets and money into the trust during his or her lifetime, which may pose a challenge for some.

What are the main benefits of a testamentary trust?

Asset protection

One of the most appealing benefits of establishing a testamentary trust is asset protection, particularly for families with significant assets and funds. For example, if a beneficiary owes money to creditors and receives an inheritance via the trust, the distribution will be protected from said creditors. The assets belong to the trust, not the individuals.

Control of assets

Another main benefit of a testamentary trust is that this type of trust allows the grantor to “control”, to a certain degree, how the trust assets and funds will be used. In the case of a beneficiary with poor spending habits, for example, the grantor can set forth certain provisions within the trust to prevent the beneficiary from squandering away his or her distribution.

Simplicity of creation

Creating a testamentary trust is relatively simple. The trust can be incorporated into your will during the will’s creation or later as a separate addition. Costs and fees for establishing the trust can be taken out of your assets at death, limiting the amount of upfront costs you may be responsible for.

While a testamentary trust can be a useful tool for distributing your life savings per your personal desires, it is just one planning option to consider. For many of our clients, the desire to maintain privacy and avoid the probate process entirely, vastly outweighs the potential convenience of a testamentary trust.

If you are ready to discuss your estate planning further, do not hesitate to schedule a meeting with our firm. Let our experienced attorneys guide you through each step of this important process.

A Revocable Trust Is the Best Estate Option Should You Become Ill or Incapacitated

An important comfort to getting older is knowing that your hard-earned and carefully managed assets can be passed on to your family and other beneficiaries. But what happens if age or illness prevents competent supervision of one’s estate? It’s a difficult question to grapple with, but not one without an answer.

A revocable trust offers the best of all options. A revocable trust, or living trust, is a legal document that puts your chosen assets into a trust for your benefit during your lifetime. Income is earned on the assets and trust provisions can be easily adjusted for any number of reasons.

At the time of your passing, a handpicked representative, known as a “successor trustee,” will distribute your estate according to your wishes. A revocable trust can also outline how it should be determined that you are no longer able to manage your affairs. For example, a diagnosis from your personal physician along with a separate, independent medical opinion.

Your successor trustee can then seamlessly step in and manage both your finances and property without missing a beat. This continuity is a major advantage, and cannot be as easily obtained through a standard will and testament.

A will would require your loved ones to rely on other documents such as a durable power of attorney or health care advance directive. Without advanced directives like these, your loved ones would have to seek a court-appointed guardian or conservator. This can be expensive, inconvenient and overwhelming for distraught family members. The court-appointee would also have to report back to the court regarding incurred expenses, the sale of property, and other items.

It bears repeating: Your personally chosen successor trustee will not be subject to court intervention as in the case of a will. And if you dispute a determination of incapacity, the revocable nature of a living trust allows you to retain control of your estate.

A will combined with a durable power of attorney can accomplish similar objectives regarding the transfer of estate management, but since the person giving the power of attorney owns the assets, probate administration would be required at the time of death – something many people try try to avoid.

Probate proceedings involve administration costs, including court fees and likely attorney fees, and are public record. A revocable trust circumvents probate entirely. We are ready to discuss this with you further. We encourage you to schedule a meeting with a member of our legal team to discuss the Florida estate planning that is right for you now and in the future.

How To Update Your Estate Planning After a Divorce

In life, divorce is an extremely difficult event that, unfortunately, many couples may go through. According to the American Psychological Association, at least 40-50% of marriages in the United States end in divorce. What many do not realize is “Gray Divorce” or the divorce of Americans over the age of 60, continues to steadily increase. While divorce is hard enough, the last thing you need is for your estate planning to fail when you need it most.

In many states, estate planning changes after you and your spouse get a divorce and your spouse may even be considered “dead” after your divorce. Florida is no exception. This leads to a possible scenario where no one is left to make serious decisions for you if the time were to come before you updated your planning. The key to success in this scenario is to know how to update your estate planning following a divorce.

Many couples choose their spouse as the agent under the durable power of attorney. This gives your spouse the ability to make decisions for you if you were to become incapacitated or unconscious. Once all of the boxes have been checked and your divorce is finalized, your spouse can no longer make decisions on your behalf. This may be a good thing for some, but, if you do not designate someone else to this position, it can become a sticky situation. This is why you need to name someone else as your agent under your durable power of attorney once your divorce is settled.  You do not have to wait! If you are currently going through a divorce and no longer want your spouse as your agent, then you need to meet with your estate planning attorney to terminate this position and choose a new person to serve in this capacity as soon as possible.

Again, changing your Florida advance directives is the first step when going through a divorce.  The next step of your estate planning that you need to consider is your revocable trust agreement. If you were planning on leaving part or all of your estate to your spouse before you decided to go through with a divorce, then there are major changes that you need to make as soon as possible.

Divorce is painful, and you will need to make many changes in your life.  One of the most important changes will be to your estate planning documents.  Make an appointment with your estate planning attorney to update your estate planning documents as soon as possible. Do not hesitate on this matter, there could be unwanted consequences! If you need advice on this issue, or any other, do not hesitate to contact our law firm.

Do You Have Right Decision Maker Named in Your Florida Estate Planning?

Choosing someone to make the right decisions for you should you become incapacitated is not always easy.  While this person must know you and have a trustworthy character, those qualities are only the tip of the iceberg.  Your decision maker needs to know how you would want your decisions made in a crisis. Your decision maker also needs to be able to remain impartial and focused on your wishes, which can be increasingly difficult under stressful and emotional circumstances.

Our clients, friends and neighbors often ask us how to choose the right decision maker for them in their Florida estate planning. While this is a deeply personal choice, let us share a few ideas to consider when you are selecting the right person for you based on your own unique needs.

1. You should completely trust your decision maker. While this may sound obvious, having a trustworthy decision maker is crucial. Your decision maker will be in the position to make life altering decisions for you and your family. Therefore, you must have full confidence in him or her and ensure he or she understands what you want done in specific situations.

2. Your decision maker should understand your values. When choosing someone to make all of your decisions for you in your time of need, this person needs to understand the values you hold. You want to know that this person will make the right decisions for you, and not for his, hers or anyone else’s best interest. By taking the time to discuss your values, this person will better understand what you would want to happen.

3. Your decision maker should be decisive, yet researched. Making life-altering decisions for another person is a significant responsibility. It is one that should not be taken lightly or made quickly. You should choose a decision maker who is able to make sound decisions after reviewing all alternative options and outcomes.

4. Your decision maker should be present in the future. Do not choose a decision maker who is not consistently present in your life now and will not be in your foreseeable future. This person, whether a friend, family member or spouse, should be someone you know will always be in your life. Sometimes, when you choose a decision maker, these decisions will not be made for another ten or more years. Is this person accessible? Will he or she make this process a priority?

Much of estate planning and elder planning is about making decisions early. It is about creating the plan you need to make sure you and your family are protected from uncertainty. Should you become incapacitated, it is crucial for you to have by your side an agent with the legal authority to make the right decisions for you.  Do not wait to contact a member of our legal team to get started!

New Year’s Resolutions that Protect You and Your Family

Happy New Year! With the New Year comes new ideas, new goals to achieve, and, most of all, New Year’s Resolutions. This is the time when each of us looks inward to determine what we want to achieve throughout the year. As you begin to think about your goals, we encourage you to make New Year’s Resolutions that protect you and will benefit your family as well.

Need ideas? We have them for you! Each day, we work with Florida families just like yours to make sure they are protected in the event of any future challenges. From managing unexpected illnesses to long-term care crises to ensuring the right decision makers have the authority act, we work with our clients to make sure they have peace of mind. We accomplish this for them through a combination of estate planning and elder law planning.

Our goal is for everyone to have the comprehensive planning they need to protect themselves and their family. As you consider your planning, do you have what you need right now? We want to share with you a few resolutions you can put in place this year that can make a positive, long-term difference for you and your family.

1. Make an Estate Plan. Less than half of Americans today have an estate plan. Are you one of them? Or do you have a plan in place that protects both you and your family? Remember, you do not have to have millions of dollars to create an estate plan. Estate planning is about so much more than transferring your assets when you die. Your estate plan ensures that you are able to create the legacy you want and that you are able to have the legal decision makers you need in place to act for you in the event of incapacity.

2. Revise Your Existing Estate Plan. If you have an estate plan in place, it is time to review it. Are your decision makers the same? Do you have secondary decision makers named? Are your goals for your legacy reflected? Have there been births or deaths in your family that you need to mention in your planning? Has it been over three years since your last update? Don’t wait to evaluate your plan and schedule a meeting with your attorney to review your changes as well as the changes to the law.

3. Build a Relationship with a Local Attorney. You need to have a local attorney on your side. You never know when you will need your attorney to advocate on your behalf. Your attorney can ensure your estate plan stays current, help you plan for your finances, and create a legacy that ensures your children’s wellbeing. A common misconception is that an attorney is only necessary after something has already occurred. In reality, you need your attorney now because he or she can help you be proactive in your planning.

These New Year’s Resolutions will help you plan for your future. They can also help you protect the future of your loved ones. This year, do not leave your estate planning decisions to chance. Plan early and well for what you need. If you are ready to get started, do not hesitate to schedule a meeting with a member of our legal team.

Should you sell the family home if your parents go into nursing home care?

If your parents go into a nursing home, deciding what to do with the family home can be complicated at best. You don’t want an empty house sitting around, and perhaps you don’t want to deal with renters. What’s more, you may believe your folks need the income from the house sale to help pay for their nursing home care in the long-term.

The problem is, only the person who owns the house can transfer the house to a buyer. If a parent has become incapacitated, he or she needs to have identified – through a power of attorney – someone who can act on their behalf, for the sale to take place. If the caregiver has no legal authority, then the caregiver has absolutely no right to sell the home.

Before your parents are in need of nursing home care, it’s best to have a durable power of attorney in place. In the state of Florida, a power of attorney is a legal document in which you designate someone to act on your behalf, or when you are given power of attorney to act on someone else’s behalf.  In Florida, a power of attorney must be signed before two witnesses and a notary public to be considered legally recognized under state law.

It’s different from a regular power of attorney. A regular power of attorney ends if the person it represents becomes incapacitated. That’s when a special kind of power of attorney, known as a durable power of attorney, is better. A durable power of attorney, unlike a power of attorney, is “durable,” even if a person suffers mental incapacity in the future.

A durable power of attorney is the most important estate planning document a person can have. Adult children of elderly parents need to tell their parents to include a durable power of attorney in their estate plan. A durable power of attorney can, in additional to handling all financial decisions, authorize medical care. That includes consent to proceed with or terminate all medical and surgical procedures on your behalf, including an agreement that falls under the Life-Prolonging Procedures Act of Florida.

In 2011, Florida lawmakers changed the state’s durable power of attorney law. The changes gave a durable power of attorney immediate power. Under the revised law, the durable power of attorney is signed and goes into effect immediately. There is no waiting period, including waiting until the person or loved one suffers incapacitation and cannot make financial and healthcare decisions on their own.

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.

Online wills allowed in Florida

There’s really no reason not to have a will, especially in the tech age. Thanks to Florida lawmakers, a person can either write a will on on piece of scratch paper or craft an online will that is still considered legal and valid in the state. It’s best to have an estate planning attorney help you out with either, though.

Let’s look at electronic wills. The Florida Electronic Wills Act allows someone to craft a will using an internet service. With the state having the largest number of seniors and retirees in the country, the act was hailed as a way to make things easier for people to get their final affairs in order.

And it does. The law requires several steps to prevent fraud, including electronic signatures of the person whose will is being created, as well as two witnesses. Two people are required to sign a paper will under state law.

Under the Florida Electronic Wills Act, the testator and witnesses must be together when they sign. Starting next year, it can be done via Skype or FaceTime.

Here’s how it reads in statute.

“Under current law, traditional wills and living wills generally must be signed by the principal to the instrument and by witnesses. The bill allows these individuals to sign, witness, and otherwise fulfill their duties while in different locations by using video conferencing and other technology. An electronic will may be stored by a “qualified custodian,” which must be capable of storing an electronic will, and must store electronic records of electronic wills, including documents related to the execution of an electronic will. The bill substantially regulates qualified custodians and includes several consumer protections for testators who choose to employ a qualified custodian.

In addition to electronic wills executed in this state, the bill grants the courts of this state jurisdiction over electronic wills that are executed by nonresident testator’s according to the Act or according to the laws of the testator’s state. During probate proceedings, the bill expressly permits the admission to probate of the electronic will or its ‘true and correct copy.’”

Keep in mind, an internet service cannot ensure your assets and wishes are protected. Even if you choose to draft an electronic will, you should seek the advice of an experienced estate planning lawyer who will make sure you are covered, legally and personally.

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.