When deciding between a trust agreement and a last will and testament, there are many things to consider. You need the right plan in place for you and your loved ones. When it comes to elder care law, what is the difference between will and trust planning?
The first, and arguably most important, is that wills do not offer the complete coverage you need in Florida. This is a key difference between will and trust planning. A will, on its own, cannot be your financial, legal and medical plan. It is only used when you pass away and does nothing to protect you from the high costs of long-term care or the guardianship court. A trust agreement, however, can offer more comprehensive planning in Florida.
Together, you and your elder care attorney can create a plan to meet your specific needs. We know it can be challenging to understand the difference between will and trust planning. Let us share a few critical reasons why you need a trust agreement instead of a will to protect your elder care needs.
1. Stay out of probate court. When you place your assets in a trust, you do not own them – your trust does. This is a key difference between will and trust planning documents. Your trust is seen by the eyes of the court as a “legal person.” You control the assets as if they are yours throughout your lifetime. When you die, only your assets go through probate. Since your assets are placed in a trust and you legally do not own the trust property, it doesn’t have to go through probate.
2. Trusts are completely private. A trust agreement is a private document. Unlike a will, which becomes public through the Florida private process, a trust ensures your privacy. If you want to make an important legal decision but want it to remain private, such as disinheriting a child, this may be the planning choice you want to use.
3. Trust agreements are quicker than probate. In probate, you are subject to the court’s timeline. This can be a process that lasts months or years. Timing is a main difference between will and trust planning. Because trust agreements are managed by an attorney and not subject to probate, the trust administration process can be much quicker.
4. Trusts allow you to protect your assets. While a will simply lays out instructions for your assets and beneficiaries once you pass away, a trust agreement allows you to maintain control of your assets. This can include protecting your assets from the high cost of long-term care. Specific trusts can be created to reach very specific goals. Do not wait to discuss this with your attorney.
5. Trusts can take the place of a durable power of attorney. If you become incapacitated, your trustee can manage your assets in trust without court supervision. In this capacity, having a trust can take the place of your durable power of attorney. This a yet another main difference between will and trust planning that is a key consideration for you.
Most people assume creating a will is enough to protect themselves and their family members but this is far from the truth. Our goal in this article is to share the difference between will and trust planning. We know you may have many more questions and want you to contact our office to let us help you protect your future!
Many seniors do not have elder care planning of any kind. Unfortunately, this means they are not prepared for a sudden crisis. This crisis could be a healthcare diagnosis, a car accident or a rapid decline in cognitive abilities. Most of the elder care planning you need as you age may only be completed when you have capacity. You risk losing the right to make choices you want if you have not planned for incapacity.
When you have not provided legal authority to another person, such as in your Florida durable power of attorney and Florida health care surrogate documents, there is no one who can step in and make your decisions for you should you be incapacitated. Through these estate planning tools your agent is given the legal authority to act as you would in specific instances. For example, if you were in a car accident and were unable to pay your bills each month, your agent would be able to do so. Further, if you were to suddenly need long-term care such as in the skilled nursing facility, your agent would have the authority to to hire an attorney to assist him or her with this planning.
Unfortunately, when you do not plan ahead, and create the elder care planning documents you need, no one will have this authority. In the event of a crisis where you can go longer make decisions and have not created the documents to support you, your family may need to hire an attorney to start the Florida guardianship process. In the absence of legal planning, the guardianship process exists to first determine that you are truly incapacitated and then to select the right guardian to make decisions for you for the rest of your life.
While, at first glance, this may not seem to be the worst alternative, there can be significant downsides to the guardianship process. Let us share a few considerations with you.
1. The guardianship process is expensive. Your family will need to hire an attorney to represent them and a second attorney will also be appointed by the state to represent your interests. There will be court costs, medical examiners costs, and additional costs during the initial phase of this guardianship. This will quickly add up to thousands of dollars that could have been avoided by having Florida advance directives in most situations.
2. The lack of ability to plan for long-term care. Under almost every circumstance, you will no longer be able to plan to protect your life savings from the high cost of long-term care once you are under guardianship. Instead, the planning alternatives that work under your durable power of attorney, are no longer possible. Your family will have to spend your assets and income on the skilled nursing facility you need until they are depleted.
3. Increased family conflict and stress. Unfortunately, in the absence of choosing a decision maker early, your family may fight over who should be your guardian. We have seen countless arguments between spouses, children, and loved ones who each hire attorneys to fight over who should be the decision maker for a loved one. During stressful times like this, most of our loved ones will not be thinking clearly and will be unable to make rational decisions with regard to our care. Not only does this cause long-lasting friction for your family, it also incurs more costs with each person‘s attorney’s fees.
These are just a few of the reasons why it is crucial that guardianship not be your elder care planning choice. When you plan early and well, you can avoid scenarios where you will be forced to use your entire life savings to pay for your long term care needs. Don’t wait to talk to a member of our legal planning team about the help you and and your loved ones need.
There is no question that getting a divorce is a stressful and tense time period. Emotions are heightened as paperwork begins to pile up, meetings with attorneys become more frequent and discussions between ex-spouses become argumentative or sad. Did you know, however, that “gray divorces” or divorces that occur much later than life continue to be on the rise?
The Pew Research Institute reports that “among U.S. adults ages 50 and older, the divorce rate has roughly doubled since the 1990s. In 2015, for every 1,000 married persons ages 50 and older, 10 divorced – up from five in 1990, according to data from the National Center for Health Statistics and U.S. Census Bureau. Among those ages 65 and older, the divorce rate has roughly tripled since 1990, reaching six people per 1,000 married persons in 2015.” Does a divorce at 65 years of age more significantly impact an individual than when he or she is younger? What is the impact on elder care law planning?
It is crucial to plan for your elder care needs whether you are married or divorced. For divorced spouses, however, examining how your needs will be met in the future is critical. Revising your estate plan after divorce is an essential part of the process and the first step in preparing yourself for the future. For most seniors on a fixed income, it is important for you to not only plan for your estate but for your potential long-term care needs as well. Let us share a few tips on how to plan forward in light of divorce.
1. Your last will and testament may no longer reflect your wishes.
After divorce in Florida, any provisions in your last will and testament related to your ex-spouse will become invalidated. Under the law, your will treats your spouse as having died at the time of the divorce. This may or may not reflect your wishes. In order to decrease any confusion, new estate planning documents such as a last will and testament or a revocable trust agreement should be created and executed.
2. Change your durable power of attorney as soon as possible.
In many marriages, spouses act as each other’s agent under their durable power of attorney. That means, if one spouse becomes incapacitated, the other spouse can legally make decisions for him or her. Similar to the last will and testament, the former spouses are treated as having predeceased one another. This is a document that must be updated as soon as possible as to prevent a lapse of person with decision making authority.
3. Plan forward with your elder care attorney for long-term care.
There are more options available for married individuals than for single individuals when it comes to long-term care planning. Many of the remaining strategies require a minimum of sixty months to be in effect before the benefits can be received by the individual. There is no guarantee that any of us will be able to avoid the need for long-term care in the future. It is critical to plan early to know how you will be able to afford this care by yourself without spending all of your hard earned money on a nursing home.
Divorce is never easy. It can become more complicated later in life. It is important to adjust all legal documents and your long-term care planning to reflect this new life change. Do not wait to talk to us about what you need moving forward from this difficult time.
Research tells us that more retirees are traveling than ever before. The AARP shares in the 2017 Travel Research Survey that “most Boomers (99%) will take at least one leisure trip in 2017, with an average of five or more trips expected throughout the year.” There continues to be a steady trend that Baby Boomers and older age groups will travel abroad as well, as opposed to staying in the continental United States. How much do you really know, however, about health care when traveling?
Both retirement and travel should be fun! The key to you and your senior loved ones having fun, however, is preparation. Unfortunately, a healthcare crisis can happen at any time. In most instances, traditional Medicare will not pay for your health care needs overseas. Let us share our insights with you on how to best protect yourself as a senior when you travel overseas.
1. Carefully review your health care coverage before you travel.
Traditional Medicare only provides healthcare coverage in the United States and its territories. Therefore, if you’re traveling to tropical destinations such as Puerto Rico, Guam, or the Virgin Islands, Medicare coverage will basically be the same. If you’re traveling outside the United States, however, you may not have any healthcare coverage. Before you leave, it is critical to read through your Medicare plan policy to know what is covered and what is not.
2. Travel with enough medicine to be covered for a longer duration of time.
Most Americans today take at least one prescription medicine. When packing for a trip, it may seem logical to pack just enough medicine to cover the duration of the trip. Best practice when traveling, however, is to pack enough medicine for at least one week beyond your scheduled travel days. You never know when airlines, cruise ships or your travel plans can be significantly delayed or how difficult it will be to have your emergency medicine order shipped to you.
3. Purchase a travel health care insurance policy.
One of the best ways to protect yourself while traveling is to purchase a travel health care insurance policy. Travel health care insurance policies are designed to provide for a gap in your existing coverage. Foreign doctors, hospitals and expedited medicine shipments can all be a part of the coverage. Be sure to read the policy before purchasing it and make sure none of the activities you are considering taking part in are excluded from coverage.
4. Look into emergency evacuation coverage.
In extreme medical situations, you may need to be transported back to the United States by ambulance. This can be extremely costly and not covered in any way by your health care plan. You may want to consider foreign transport or ambulance insurance when you are traveling abroad to make sure every contingency is covered.
Whether you are traveling abroad or staying close to home, when it comes to elder care planning preparation is key! Don’t wait to speak with a member of our legal team about the planning you and your loved ones need today.
If you are a caregiver for multiple ages, you know your job is not easy. Over half of the members of the Sandwich Generation, those caring for a minor child and an aging parent, find themselves balancing a multi-age caregiver schedule. The simple fact is people of different ages require widely different care, oversight and needs. While young children require a lot of supervised attention, seniors typically need more physical and health care assistance. For example, each age group has different daily demands from after school activities to physical therapy appointments.
Your multi-age caregiver schedules can rapidly become packed. Before you know it, your calendar is overflowing, and you are at risk of accidentally missing appointments and activities. In fact, you might find yourself breathing a sigh of relief when you simply remember to pick the children up from school or give the proper day sequence of medicine.
We know just how hard it can be for the family caregiver. This is a role that is often unpaid and over relied on. If this sounds familiar, there are a few tips we can give you to help juggle your busy lifestyle as a multi-age caregiver.
1. Find a local support system. There is nothing wrong with asking for help. Find friends, family members or neighbors to help you when you need it most. You can speak with other parents at your children’s school to see about joining a carpool group. If picking up your children from school coincides daily with your mother’s physical therapy appointments, speak with your school about after school care. Take offers for help whenever they come along, and do not feel ashamed for asking.
2. Stay organized. The most frantic and scattered caregivers are ones that are unorganized. Never knowing what is happening next, who to prioritize or even what day it is, will take a toll on you. Invest the time to set up a calendar on your smartphone or buy a paper calendar from the store. You can even try color coordinating your schedule by either person, age-group or level of priority.
3. Do not allow guilt to sink in. Even the most successful multi-age caregivers feel guilt from time to time. This is because you love the people you care for and want to be everywhere at once. Unfortunately, this is not possible. Do not let yourself feel guilty! Try to give equal attention to all age groups and have open communication with people that are old enough to understand. If you have to miss an appointment with your mom because you want to watch your son at his spelling bee, do not feel guilty. Remember that everything you do is for the best and you will be there for the next appointment.
4. Do not sacrifice personal time. While it is typically the last thing that caregivers do, remember to take time for yourself! Recharge the batteries, take a few deep breaths and clear your head. When juggling so many people and priorities at once, you can easily get extremely stressed out. Do not let it get to that point. Take a few minutes every day or a few hours a week to do something that benefits you. Afterward, you will be able to be more invested in your responsibilities.
5. Take care of your errands online. To put your entire self into the people you care for, some other things may have to be pushed to the side. If you do not have time for grocery shopping, order your groceries online from the store or utilize a meal delivery service like Hello Fresh or Blue Apron. Consider spending a few extra dollars a month on a house cleaner so you can spend that time with the people you care for. If you have no time to do laundry, research a laundry service in your area that can pick up and drop off your clothes.
Life can be stressful as a multi-age caregiver, but it does not have to be overwhelming. Take a deep breath. Remember why you are doing this. Do not hesitate to contact our elder care team as a resource.
Did you know there is a possibility you could one day be responsible for an aging parent’s long-term care costs? Filial responsibility is the legal and financial responsibility of a third party to pay for another’s unpaid expenses. Although it has only been enforced in a handful of states, over twenty-five states have these laws in place. Experts agree that as our states look for ways to pay for the long-term care costs for an increasing senior population, filial responsibility laws may gain traction.
What Is filial responsibility? How could it potentially impact you and your aging parents? Let us share the critical information about filial responsibility laws you need to know to help you plan.
1. The most common form of filial responsibility is the financial duty a child owes to a parent. If a parent is in need of long-term healthcare but cannot afford to pay, an adult child may become legally responsible. The Pittas case from Pennsylvania gives us a clear example of how this law could be used.
2. Filial responsibility laws are in place in over twenty-five states. While not all states have these laws, many do. With these laws in place, this responsibility could be assessed under certain circumstances and other states could seek to add these laws creating similar responsibilities.
3. The degree of responsibility varies from state to state.For example, in Arkansas, adult children are only responsible for paying for mental health care. In Connecticut, the law only applies to parents who are younger than 65. However, in other states there is full responsibility of costs for adult children over parents.
4. You can be sued if you do not pay the bill. Even if the bill comes without notice, these laws can give long-term care facilities the ability to sue if you do not pay. In this instance, and all elder care law scenarios, it is crucial for you and your parents to work with an attorney to plan for this potential issue as early as possible.
5. A Pennsylvania case reversed precedent and made the enforcement of filial responsibility laws a new trend. Prior to 2012, filial responsibility laws were rarely enforced. However, in Health Care & Retirement Corporation of America v. Pittas (May 7, 2012), the Pennsylvania Superior Court upheld a decision to make an adult son liable for a $93,000 nursing home debt.
If enacted and enforced, filial responsibility laws could have a tremendous impact on Florida seniors and their children. One of the best ways to plan ahead is to work with your elder care law attorney to discuss strategies and ways to pay for long-term care early. Do you have questions? You may contact us for more information.