How do you respond to a health care emergency involving a senior loved one? The COVID-19 crisis has forced millions of families to confront this important question. The pandemic has hit elder adults disproportionately harder than the rest of society. Too often families realized they lacked the basic health care documents needed to act effectively on their behalf.
The coronavirus scare is far from over and taking steps to protect a senior relative means addressing key estate planning items. Many people think of estate planning as pertaining to wills and trusts, but it also means drafting legally sound health care documents, such as a health care surrogate, a living will, a health care privacy release, and more.
Whether a hedge against the coronavirus, or other health considerations like dementia and Alzheimer’s Disease, let us discuss four mistakes to avoid when using estate documents to advocate for a senior loved one:
Failing to understand a living will. A living will differs from a last will and testament. It is a completely separate legal document that tells others what an elderly family member’s personal choices are concerning their health care, and, in particular, end-of-life medical decisions. A living will is also different from a health care surrogate in that the elder adult’s “agent” must abide by the instructions laid out in the living will document.
Not knowing what the elder adult wanted. If an elder loved one’s health care wishes are either unknown or unclear, then even the most expertly drafted documents can be lacking. Make sure to have specific conversations with an older loved one about health care and put them in writing. This can serve as the basis for constructing accurate health documents, or updating them, and provide future guidance to more effectively advocate for them.
Failing to understand a health care surrogate. A health care surrogate may be one of the most important health care estate items an elder family member and trusted advocate can have. They may be useless, however, if poorly constructed or if the agent fails to understand his or her granted authorities.
Choosing the wrong “agent.” Advocating for an elder loved one involves a lot more than legal documents. While critical, they cannot impart tenacity, communication skills, or the ability to observe and question results. Those qualities must come from the chosen advocate. If they are lacking, families should not wait long before choosing someone who is up to the task.
Health care planning may have never been more important than it is now in these times of great uncertainty. If you or someone you know would like more information or guidance on related legal matters, contact our office to schedule a meeting.
The new year is an exciting time for many of us. It is a time to establish new goals, choose what we want for the future, and set intentions that will guide us through, not just this year, but many years to come. As a Florida Baby Boomer who is thinking about what you want for yourself and your loved ones, however, does this include considering how you can best be prepared for the future through estate planning?
When we are making resolutions, many of us do not take the time we need to consider whether or not our estate plan reflects what we need right now. In fact, studies tell us that the majority of Americans do not have any estate planning. If you do not have estate planning as a Florida Baby Boomer, there is never a wrong time to create an estate plan. Remember, from when you turn eighteen years of age in Florida forward, no one has the legal authority to make decisions for you.
Estate plans, however, are not static documents. Your needs, and the needs of your family members, may change significantly over time. For example, you may have named your adult child who resides near you to be the primary decision-maker under your durable power of attorney. As time passed, though, this child who you were relying on to make responsible decisions for you may now face serious issues such as bankruptcy or disability. By contrast, your children may have gotten married and have children of their own, and you may need to change your estate plan to ensure you are leaving a legacy for future generations.
Further, your estate plan may not contemplate the aging process and a potential, future need for long-term care support. Most estate planning does not contemplate this potential issue. As a Florida Baby Boomer, however, you need for your estate plan to be able to work with any potential long-term care needs you may have in the future.
In addition to changes in your life, there may be changes to the estate planning laws as well. The laws that govern your estate plan are subject to change and this is just one of the reasons why you need to stay in communication with your attorney. For example, could new law changes impact the tax structure for your estate plan? Could there be changes that will allow less flexibility for your children to make your decisions, when needed, in the future? Are there significant elder care challenges that you need to plan for now?
These are just a few of the reasons why you want to consider scheduling a meeting with your estate planning attorney at the start of the year. Be sure to discuss with your estate planning attorney what his or her comfort level is when it comes to not only planning for your legacy, but also the long-term care challenges. Unfortunately, as we age, estate planning alone is not enough. We need an elder care plan to address long term care issues and help us plan forward to ensure we are protected. We encourage you to contact us to discuss these questions, and any others that you have, at your earliest convenience.
We often find that adult children and their aging parents will come to our office and present to us, their newly recommended estate planning attorney, a last will and testament that is at least twenty years old. This estate planning document nominates a brother or a sister as a guardian for the minor children. It also provides for the assets to be distributed on death to a bank trust company that is to retain the assets in trust until the children have attained age 21.
One of the problems with this estate plan, which needs updating, is that the youngest of the children is now age 25 and the eldest is age 35. In addition, the bank nominated in the last will and testament to serve as the trustee is no longer in business. Further, if there was a trust agreement, it was never funded.
In this scenario, we are fortunate that the parents lived these many years and it was not necessary to use the estate plan, or even fund the trust. In situations like this, one of the ways we can help the parents is by drafting a new estate plan that corrects these issues. For example, the new trust agreement could dispense with the need for a guardian of minor children and name a trust company now in existence to serve as the trustee.
The parents, however, have aged to the point that a new estate plan alone is not sufficient for them. The parents need their own updated advanced directives in the event of a disability. Therefore, the parents will also need to consider signing, at a minimum, durable powers of attorney, health care surrogate designations, and living wills.
Further, they need to consider long-term care planning.
An estate plan alone will not be sufficient to help them be able to afford the high cost of long-term care in an assisted living facility with memory care or a skilled nursing home. Medicare is also not able to help with the cost of the daily custodial care. The parents need an estate plan but also an elder care plan that can help them plan for how they will be able to afford long-term care and not lose their lifetime of savings.
We work with parents and adult children each day to tackle this difficult issue.
The key is to not put off this type of planning as time is of the essence. If you have questions on this or any issue, we encourage you to contact us to schedule a meeting.
When it comes to estate planning, many of us have heard about the basics: a last will and testament, trust agreements, and probate proceedings.
While many people create their estate plan with the intention to avoid probate proceedings, did you know that there is a certain type of probate proceeding that your estate may be subject to if you own out-of-state property?
Ancillary probate is a type of probate proceeding that is required if you own real property, livestock, or mineral rights that are owned in a state outside Florida.
This can be a complex and multifaceted area of probate, which is why we want to share with you a few tips you need when it comes to ancillary probate.
1. Consider your last will and testament.
When preparing your estate plan, you may consider creating a last will and testament to detail your wishes for the distribution of your assets after death. Did you know that your last will and testament only covers your in-state property? Unfortunately, this is true. If you own property outside of your home state, your last will and testament will likely not protect it.
2. Certain trust agreements can cross state lines.
When creating your estate plan, it is important to know that, unlike a last will and testament, certain trust agreements can cross state lines. We know this can be complicated, so understanding the basics is key. As long as your out-of-state property is titled into the trust agreement, the trust can govern your out-of-state property and keep you out of ancillary probate.
3. An experienced estate planning attorney is one of your best resources.
When it comes to ancillary probate and the protection of your assets, talking to an experienced estate planning attorney is one of the most effective ways to help keep you out of probate. There are no uniform rules about ancillary probate, as different states apply different laws. Discussing your specific needs, including any newly acquired out-of-state property, with your local estate planning attorney can help provide you with peace of mind.
We know this can be a difficult topic to understand and to prepare for. Ancillary probate, however, can best be avoided with appropriate planning and preparation. Do not wait to ask us your ancillary probate and other estate planning related questions. We are your local community law firm here to help you and your loved ones in the state of Florida.
Many of our clients tell us that creating a last will and testament is the first thing that comes to mind when thinking about estate planning. While a will is a fundamental component of successful estate planning, including detailed health care documents in your estate plan is an effective way of ensuring any medical decisions made on your behalf are ones that you would approve of.
One of the main benefits of establishing advance directives is that you, as the creator, have the opportunity to create specific and detailed instructions with regards to the future medical care you wish to receive. Further, by creating advance directives, you have the ability to choose someone to act as your health care agent in the event you are unable to make medical decisions for yourself.
To help you make an informed decision about the types of planning documents you need, let us share three important health care documents that you should consider adding to your estate plan.
A living will is the first of these important health care documents. A living will is a legally-binding document that allows you to lay out your medical wishes in the event you are diagnosed with a terminal illness or experience a serious accident or injury. By creating this important planning document, you can provide as much detail as you like about your future medical treatment and end-of-life care wishes. This will lift some of the burden from your loved ones and will make it easier for them to make decisions about your care that align with your wishes.
Health Care Power of Attorney
Through a health care power of attorney, you can designate an agent who has the authority to make medical decisions on your behalf in the event you are unable to do so yourself. It is almost impossible to plan for every conceivable circumstance, establishing a health care power of attorney can help accommodate for unexpected situations that arise. We want to share one cautionary note, however, about setting up a health care power of attorney. Be sure to choose someone you trust implicitly as your agent, as these types of decisions can be life and death.
In order for your agent to gain access to your medical records as needed, he or she must have HIPAA authorization. HIPAA was created to protect your privacy when it comes to your health. Ensuring that your agent has the authority to access your records will make it easier for him or her to make medical decisions on your behalf if you become incapacitated and are unable to do so. Discuss with your estate planning attorney whether this authorization should be included as a part of your health care documents or as a stand alone document.
These are just a few of the health care documents you can add to your estate plan. Are you ready to discuss your legal planning needs and find out which documents fit best with your planning goals? Do not wait to get in touch with our office. As always, we are here to be a resource for you.
One of the most costly mistakes people can make, especially as they get older, is not having a comprehensive estate plan. For those who do have one, failing to regularly update it can be just as costly. Without a legally sound plan, there is no guarantee that your wishes will be honored and your property will go to the people you love or the organizations you support.
There is no better time to address this issue than at the start of a new year. Significant life changes or new tax laws, for example, may have occurred in the preceding calendar year or since your last update. Addressing your estate plan at the beginning of a new year offers the chance to get a jump start on the year to come.
One of the most common reasons to update an existing plan is marriage. Did you, your children or another family member named in your estate planning documents get married since your plan was created or last updated? An estate planning attorney could help you determine how that might affect your will, trust, beneficiary designations, insurance policies or other important estate documents.
Marriage changes family structure, and estate documents need to reflect those changes. For instance, if you were recently married, designating your spouse as a beneficiary to your property, or perhaps naming him or her as a personal representative to your will, would be something to handle right away. In the case of a living will, your new spouse should be made aware in writing of your health care wishes in the event you become terminally ill. A power of attorney document also could be crafted to give your spouse the ability to make decisions on your behalf relating to financial, legal and health care matters.
Estate planning is just the first part of the equation. You and your new spouse need to discuss your long-term care future. What you may not know is that when it comes to being able to afford the high cost of long-term care, you need to give your new spouse the ability to plan and work with an elder care attorney in the event of a crisis.
If the marriage is not your first, an additional set of considerations may apply. A review of previous estate documents would be required to understand how any prior arrangements would impact your plans moving forward. For instance, if you were contractually obligated through a previous divorce to keep your ex-spouse as beneficiary to a retirement account, you may not be able to update the beneficiary designation to your current spouse. Doing so could inadvertently cause a series of avoidable problems.
In any case, consulting with your estate planning attorney can provide the most efficient path to creating an overall estate plan that confidently meets your needs. We encourage you to ask us your questions. Do not wait to schedule a meeting to create the right estate plan for you now and in the new year.