Did you know that a durable power of attorney (DPOA) may be one of the most valuable estate planning moves you can make? Imagine for a moment that the power to manage your legal and financial affairs is a magic wand only you can wield. The DPOA is a tool designating an agent who is authorized to carry your magic wand for you and cast spells on your behalf. This might seem risky, but you can actually work to protect your wand by naming an agent. Let us take a look at why that can be the case:
Adventure, and disaster, waits for no one. From car accidents to global pandemics to dementia, your ability to manage your affairs could be impacted when you least expect it. The durability feature of a DPOA means that the permissions you give your agent will stay in place even if you are incapacitated to the point where you are unable to communicate.
Only those who are worthy should carry your wand. When it comes to choosing an agent, consider who you believe has the skills, bandwidth, and good intentions to look after your affairs. The DPOA may grant broad powers to act on your behalf. This means the agent may be authorized to manage your finances and conduct your business in addition to any tasks specifically outlined. It may not always be easy to know who is worthy. If you change your mind later and would like to replace the agent on your DPOA, you can do so by drafting a new DPOA and revoking the previous one.
Keep your wand powerful and out of the wrong hands. There may be people who disagree with your choice of agent and will try to cast doubt on the validity of your DPOA. This could weaken your agent’s ability to manage your affairs. Court filings to prove your DPOA valid may involve expense, delays, and stress. A court may appoint a new agent where your wand gets passed to someone the court deems trustworthy, but who you know to be an evil witch or wizard. Avoid creating opportunities for troublemakers by working with a licensed estate-planning attorney to make your DPOA as strong as possible.
As you can see, there can be extensive benefits to having a strong DPOA in place. For help establishing a durable power of attorney, please contact our office to schedule an appointment.
Do you have an estate plan yet? If not, why not? Be honest. Have you been procrastinating? If so, you are not alone. Many people put off making an estate plan. They may procrastinate because they think they do not have enough assets to make it worthwhile. Some people may think they are too young to consider it. Some may see making an estate plan as a stark reminder of their own mortality, and avoid it based on that. Still others, who are unmarried and have no immediate family, may feel there is no need to create an estate plan at all. Perhaps one or more of these reasons resonates with you. To be honest, however, these reasons are all based on common misconceptions about estate planning. Estate planning is important for everyone and there is no time like the present to put your estate plan in place. Let us take a look at three compelling reasons to stop putting off estate planning.
1. An estate plan provides peace of mind. Few of us want to think about dying, getting seriously injured, or being diagnosed with a serious illness. As we all know, however, death is inevitable and injury and illnesses occur. The potential of catastrophic illness or injury is remote, but still all too real. A comprehensive estate plan gives you some say in what will happen if you are seriously hurt or ill and cannot express your wishes. One document in an estate plan that does this is a health care surrogate. This document allows you to designate someone to ensure that your preferences regarding treatment are carried out if you cannot speak for yourself. Furthermore, a living will allows you to specify how much and which medical interventions you would want at end of life.
2. An estate plan addresses practical concerns regarding your family’s future care. The legal documents in an estate plan vary based on each person’s immediate and long-term concerns. With that said, most estate plans include a last will and testament and one or more trusts. That is because these legal tools allow people to make certain provisions for their families. For example, a will allows you to designate someone as a guardian to care for your young children after you die. Wills and trusts also allow you to allocate money for your kids’ immediate and future needs in the event of your death. Without an estate plan in place, the courts will intervene when necessary. The courts may intervene to appoint a guardian for your minor children or determine the best use of your assets for them.
3. An estate plan lets you determine how your assets are distributed. Making an estate plan gives you significant control over what happens to your assets after you die. This is because wills and trusts allow you to specify who receives your assets. They also allow you to name someone, such as a personal representative, to ensure your instructions for the distribution of your assets are carried out. Absent any estate planning documents, your property will be distributed as per applicable state laws.
If you still have questions about estate planning and its importance, we are here to help. Simply call our office to schedule a consultation at your earliest convenience.
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.