Estate Planning FAQs
Planning for the future of your estate begs many questions. Do I need a will? What is a trust? My estate isn’t very large, or I have dependents with special needs – what does this mean for my estate? Here, our attorneys answer these important questions and many more to give you the insight and guidance you need to get started securing the future for yourself and your family.
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What is a Miller Trust?
A "Miller Trust" in Florida is also known as a Qualified Income Trust. They are essentially one and the same.
If your loved one is looking to get long-term care Medicaid in Florida, there is both an asset test and an income test. If the applicant's gross income exceeds the limit (some $2,892/m in 2024), then the applicant will not be eligible for Medicaid without legally lowering the applicant's income below the limit. There are essentially two options for lowering the applicant's income, which are:
- Qualified Income Trust (a/k/a Miller Trust); or
- Joining a Pooled Trust
Need to Set Up a Miller Trust for Florida Medicaid? Our Elder Law Attorney Can Help!
If you or our loved one needs long-term care Medicaid and the applicant's income is too high, you will likely need an elder law attorney to assist you. If so, we are glad to help you, no matter where you live, so please feel free to reach out!
If you have further questions on long-term care Medicaid in Florida, feel free to download my book, Your Guide to Florida Long-Term Care Medicaid!
Can I have multiple health care surrogates?
For many residents of the Sunshine State, creating an estate plan provides for peace of mind knowing you are prepared for your death or incapacit. By approving an advance care directive and naming a health care surrogate, they mitigate uncertainty by ensuring that their personal beliefs and values remain respected in the face of injury and incapacity. However, naming the right health care surrogate isn’t always easy. Some people may try to designate multiple health care surrogates, whether to avert the risk of conflict among family members or prevent confusion in the event that a surrogate cannot be found.
While Florida law permits you to designate more than one representative in a living will, delegating the same position to friends and relatives can induce unexpected complications.
DeLoach, Hofstra & Cavonis, P.A., have spent decades helping our neighbors in Sun City Center stay true to their values. Our experienced team of attorneys can help you or a loved one establish an estate plan that privileges your personal beliefs without risking your legacy.
The Role of Living Wills and Health Care Surrogates
People often believe that a last will and testament serves no purpose beyond the naming of heirs and the distribution of inheritances. However, Florida permits the creation of several different types of wills.
A living will, unlike its more conventional counterpart, contains specific instructions on how its writer, the principal, should be treated if they’re ever critically injured, diagnosed with a terminal illness, or otherwise incapacitated.
Living wills are typically reinforced through the naming of a health care surrogate. A health care surrogate is the person who is nominated to make medical decisions on the principal’s behalf.
If the principal is ever incapacitated, their surrogate could:
- Authorize diagnostic procedures
- Provide or decline informed consent for surgery
- Accept or refuse resuscitation and other life-prolonging procedures
Many living wills are structured, providing directions for surrogates to follow and information on the types of treatment that the principal would—or would not—wish to receive. These often relate to end-of-life care, with some stipulating how long the principal should be kept on life support if they’re unlikely to recover from an injury or illness.
Nominating a Health Care Surrogate
- Surrogacy arrangements must be signed in the presence of at least two adult witnesses, one of whom cannot be the principal’s spouse or blood relative.
- The person or persons nominated as a surrogate cannot act as one of the two or more witnesses to the agreement.
Florida law also explicitly permits the naming of an alternate surrogate—someone who may act as the principal’s attorney-in-fact if the original surrogate is “not willing, able, or reasonably available to perform his or her duties.” Since there are many situations and circumstances in which an original surrogate may not be available to make critical medical decisions, every living will and advance health care directive should—whenever possible—include an alternate surrogate designation.
Naming Multiple Health Care Surrogates to Your Florida Living Will
While a named additional surrogate is often advised, the state provides somewhat more opaque guidance on the nomination of multiple attorneys-in-fact.
Although there’s no law prohibiting the naming of more than one surrogate, doing so isn’t typically recommended. If you’re ever incapacitated or injured, your doctor may have to communicate with each surrogate, obtaining informed consent from each before proceeding with a procedure. Should your surrogates disagree on approving a treatment or declining care, they may be forced to resolve their differences in court—depriving you of the attention you need, or the respite that you deserve.
Making the Right Call
While you can name more than one person as your healthcare surrogate, we advise against it. When it comes down to vital end-of-life decisions, we do not want the people you name to disagree. When a disagreement occurs, your life may be prolonged in an unfortunate way that goes against your living will. The best thing to do is to name the right person to make your health care decisions and trust they will do the job.
Contact Our Sun City Center Estate Planning Attorney for a Consultation
The lawyers at DeLoach, Hofstra & Cavonis, PA, have been protecting the interests and ensuring the legacies of Floridians since 1976. Let our estate planning attorney in Sun City Center help you find the peace of mind you need with an effective, comprehensive estate plan. Call us today at 727-777-6842 or click the button below to schedule a consultation today.
Should I include a letter of instruction in my Sun City Center estate plan?
For many Americans, creating an estate plan provides an unparalleled opportunity to make informed decisions about their assets, heirs, and liabilities. When created properly, an estate plan—whether it consists of little more than a simple will or includes a well-funded trust— protects your rights, both in life and after death. However, even the best-laid plan cannot curtail the potential for dispute and disagreement. DeLoach, Hofstra & Cavonis, P.A., have spent a half-century helping Floridians establish long-lasting legacies. Our experienced estate attorney could help you or a loved one draft a letter of instruction for an executor or personal representative.
While not legally binding, a letter of instruction could forestall common misunderstandings by outlining your preferences and detailing your decisions.
Estate Planning and the Threat of Uncertainty
Estate planning necessitates informed and deliberate decision-making. Many people mistakenly believe that an estate plan can be delayed until old age. However, even a simple guideline protects Floridians from uncertainty.
An estate plan helps you, as the testator:
- Designate heirs and disburse inheritances
- Make decisions about health care and incapacity
- Keep your estate out of probate
Every estate plan is different, but most incorporate certain common elements. These include the ubiquitous will, powers of attorney, and living trusts, each of which can—in their own way—ensure inheritances and keep assets safe from intestacy.
While documents such as a will or durable power of attorney are legally binding, they don’t always provide extensive opportunity to explain the testator’s reason for making or rescinding different decisions. Without any explanation, executors and heirs can be left grasping for straws, trying to find the best way to honor a deceased loved one’s legacy.
A letter of instruction is typically used to complement more pointed estate planning measures by guiding executors and providing clarity to heirs.
3 Reasons to Include a Letter of Instruction in Your Estate Plan
A letter of instruction, also known as a letter of intent, is a non-binding document that outlines its writer’s wishes and preferences. It can be used to explain estate-related decisions or to offer detailed guidance to executors and agents in fact.
Unlike a will or durable power of attorney, letters of instruction aren’t legally enforceable. However, they provide much-needed insight for friends, family, and executors alike. Including a letter of instruction with your Florida estate plan may have the following advantages.
1) Expressing Personal Wishes
Since this isn’t binding, it can contain instructions and requests that may not be appropriate for a more formal document. You could, for instance, detail your preferred funeral rites or explain whether you would rather be buried or cremated.
2) Leaving Messages to Heirs
A letter of instruction can, in a great many ways, complement a conventional will. Many people use letters of intent to explain certain inheritance decisions, such as the choice to leave an heir a particular possession. By including individualized messages, testators remind heirs of their connection, lending sentimental value to gifts and bequests.
3) Improving the Administration of Your Estate
Aside from detailing your preferences and explaining your inheritance decisions, a letter of intent can also be used to provide guidance to an executor. You could:
- List the location of assets that your personal representative might otherwise struggle to locate
- Explain how to activate or manage certain accounts
- Provide a database of usernames and passwords to ensure the preservation of your digital estate
Letters of instruction can serve a wide range of purposes. While they’re neither mandatory nor regulated by Florida state law, they can prove incredibly useful.
Contact Our Sun City Center Estate Attorney for a Consultation
The lawyers at DeLoach, Hofstra & Cavonis, PA, have been protecting the interests and ensuring the legacies of Floridians since 1976. Let us help you find the peace of mind you need with an effective, comprehensive estate plan. Call our estate attorney today at 727-777-6842 or use our online contact form for a prompt response from our legal team. We have conveniently located offices in Seminole, Sun City Center and New Port Richey, Florida.
How will my elderly loved ones get the right long-term care without losing their home and savings?
Growing old can have its rewards - a recent report came out that peak happiness for a human is 70 years old, after all. However, that happiness is far too often offset by unexpected costs that come with aging. For many senior citizens, age-related illnesses and disabilities exert an exacting toll, making it difficult to obtain the right care without losing all of your money. Without the right contingency plan, long-term care can drive even stable families into debt.
DeLoach, Hofstra & Cavonis, P.A., has spent decades helping Seminole-area families protect their assets from the costs of long-term care and age in comfort. Our experienced team of Medicaid planning attorneys in Semonile, FL, could help you or a loved one establish a strategy to enter retirement with the peace of mind and Medicaid protection you deserve.
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The High Costs of Long-Term Care
Few Floridians ever anticipate losing their independence. However, senior citizens often face a range of age-related challenges, which can make performing even routine chores both dangerous and difficult. Many older adults have no choice but to begin paying for long-term care services, often in a retirement home or assisted living community.
While long-term care is less expensive in Florida than in some other states, the costs of care add up quickly. The estimated fees for different long-term care options in the Sunshine State include the following:
- Home care, which averages $30 per hour.
- Assisted living facilities, which can cost anywhere from $3,000 to $7,000 per month, with some communities charging an ever higher premium.
- Dementia care assisted living, which may cost up to $8,000 per month.
- Nursing home care, which often entails specialized services and regularly exceeds $12,000 per month.
Almost everyone knows that long-term care services can be prohibitively expensive. However, far too many Americans make the mistake of thinking that Medicaid offers complementary support with no strings attached.
Understanding Medicaid and Means Testing
Medicaid, unlike Medicare, is a means-tested program. In other words, Medicaid benefits are only awarded to persons whose assets and incomes fall below a certain threshold.
There are three main financial tests to get long-term care Medicaid in Florida:
- Income Test: Your gross income cannot exceed $2,742/month (2023).
- Asset Test: Your countable assets cannot exceed $2,000 for a single person and $150,620 for a couple (to allow one spouse onto Medicaid).
- Gift Test: You cannot have given/transferred assets away within 5 years (the look-back period) of applying for Medicaid.
Florida also considers the overall value of certain assets, termed “countable assets.” Countable assets could include stocks, bonds, and annuities. Importantly, Florida does not count the value of the homestead property unless the value exceeds $688,000 (2023) for a single person.
Importance of Medicaid Asset Protection Planning
Medicaid’s income limits and asset caps place many Florida families in a difficult position: even if they can afford to pay for long-term care out-of-pocket, doing so could risk their savings and their children’s inheritances. However, meeting Medicaid’s limits frequently necessitates parting ways with a variety of different assets.
Taking the Right Steps to Keep Relatives’ Assets Safe
If your parents or other older relatives are still in good health, they need to take proactive steps to protect their assets from the financial toll of long-term care. DeLoach, Hofstra & Cavonis could help your family preserve its Medicaid eligibility by discussing your options for:
Legal Spend Down Planning
A good elder law attorney, like our law firm, will know how to protect assets within the 5 year look back period. While not available in every situation, spend down planningit is a viable option under many circumstances.
You can give money to an irrevocable trust 5 years before you get sick/need Medicaid.
Exploring financial products
The 2010 Pension Protection Act required that many life insurance policies and annuities include an option for long-term care insurance riders. These riders often offer better benefits, at a lower cost, than conventional long-term care policies.
Establishing an estate plan
Even if you’re hesitant to give away your assets or purchase new financial products, a robust estate plan could help you shield your assets from Medicaid while providing a means to retain control over your own affairs, whether in life, amidst incapacity, or after death.
Contact Our Medicaid Planning Attorney for a Consult Today!
Don't let your loved one lose their personal assets because the right decisions weren't made early enough. Click the button below or give us a call at 727.777.6482 to schedule a consultation with our experienced Medicaid planning attorney in Seminole, FL.
Want to Learn More?
Interested in learning more about Medicaid and long-term care? Download my free book on Medicaid and Asset Protection Planning from our website. This free guide will help you and your family if you are helping a loved one who is needing or may need long-term care in Florida.
Or, watch my latest webinar (below) which discusses how to secure your family's legacy.
How are survivorship life insurance policies helpful in estate planning?
Every life insurance policy serves the same fundamental purpose: the provision of financial security for a decedent’s family. Death benefits are often used to cover the costs of a funeral and to ensure that a surviving spouse has the resources needed to live in relative comfort. However, even after a policy pays out, parents may find that they have little to leave their children. Preserving an estate with a survivorship life insurance policy helps avoid this potential conflict of interest.
Unlike other types of life insurance, survivorship policies proactively protect the interests of higher-income families by distributing death benefits only after both beneficiaries have passed away, leaving larger inheritances for heirs.
Preserving an Estate With Survivorship Life Insurance
A typical life insurance policy only covers one individual. When they pass away, death benefits are then awarded to the person or persons named as the deceased’s beneficiaries.
In contrast, survivorship life insurance is designed to cover two individuals, usually a married couple. After establishing their policy, they name another beneficiary—an adult child, a revocable living trust, or even a charity. As long as premiums are paid, the survivorship policy remains in effect until both policyholders pass away. Upon their deaths, benefits are disbursed to the named beneficiaries, who may use the proceeds to pay for final expenses or to establish a legacy of their own.
Including a Life Insurance Policy in an Estate Plan
Survivorship policies have other advantages. Along with shifting the burden of tax liability away from aging couples, most plans cost significantly less money than more conventional life insurance policies.
Most policies also:
- Provide substantially more coverage than an individual life insurance policy.
- Allow policyholders to receive limited cash benefits from the policy while they’re still alive.
- Guarantee payment to a disabled, incapacitated, or dependent heir.
Perhaps the greatest benefit of survivorship policies is accorded to couples whose accumulated estate value exceeds the threshold set by the Estate Tax Unified Credit. If a higher-value estate is subject to the federal estate tax, heirs may be forced to liquidate all or part of the estate to meet their tax obligations.
In most situations, survivorship policies make the most sense for couples with a higher net worth who have concerns about having to divide a large estate among multiple heirs.
Deciding Whether a Survivorship Life Insurance Policy is Right for You
Survivorship life insurance policies make sense for couples who have the means to provide for one another. If an immediate death benefit isn’t necessary to ensure the surviving spouse’s subsistence, a survivorship policy can prevent the premature dissolution of an estate.
However, these life insurance policies have clear-cut disadvantages including, but not limited to:
- Delayed death benefits. Survivorship life insurance policies only pay death benefits after both policyholders have passed away. As such, the surviving partner won’t receive any benefit upon the first policyholder’s death. For cash-strapped couples, this drawback can negate any advantages a survivorship policy might otherwise offer.
- Divorce complications. Nobody enters a marriage with plans for it to end, but divorce rates still remain high. However, even after a divorce, a survivorship life insurance policy may remain in effect. Even if an ex-spouse dies, the surviving partner will have to continue paying premiums to ensure that their children receive benefits.
While these disadvantages are significant, they may pale in comparison to federal estate tax rates, which can range up to 40 percent of the estate’s overall value.
Questions to Ask Your Sun City Center Estate Planning Attorney
A survivorship life insurance policy could afford near-unparalleled tax incentives. However, every life insurance policy—regardless of its value—provides its greatest advantage when protected by a broader estate plan.
Before committing to an insurance policy, ask yourself—and your Sun City Center estate planning attorney—the following questions:
- Is your estate subject to taxation? If so, how will your children pay?
- If you own a family business or stock in a private enterprise, how will you bequeath your interest to heirs?
- Do your children need your financial support, or would you prefer leaving a gift to a preferred charity or other not-for-profit organization?
Survivorship life insurance could provide an easy answer to some of these questions, but it is—more often than not—one solution among many. This is a terrific topic to discuss with your estate planning advisor.
Contact Our Estate Planning Lawyer in Sun City Center for a Consult
If you still have questions about the benefits of a survivorship life insurance policy or would like to schedule a consultation with our experienced Sun City Center estate planning lawyer, click the button below or give us a call at 813.945.9423 today!
How can I include my favorite charities in my Florida estate plan?
A well-considered estate plan can establish a long-lasting legacy. For many Floridians, this means bequeathing gifts to children, friends, and family. However, estate assets can also be leveraged for the greater good, used to uplift communities and fund preferred charities.
The Advantages of Charitable Giving
Philanthropists are often motivated by a strong sense of personal responsibility, whether to a particular church, community, or social cause. A charitable estate plan can, in a great many ways, fulfill a deep-seated desire to leave the world a better place.
However, the benefits of charitable giving extend far beyond a grantor’s personal sentiments. The federal government, in fact, actively encourages philanthropy by providing critical tax breaks to Floridians willing to share their life’s work with individuals and organizations in need of assistance. A charitable gift could:
- Provide an opportunity to establish a generous legacy
- Alleviate your personal tax burden
- Reduce federal estate taxes for designated beneficiaries
Including a charity, or charities, in your estate plan does not have to be difficult. However, simply listing a preferred organization in your will may not be the best way to establish a legacy.
How Estate Planning Can Help Establish a Generous Legacy
Florida law affords Sunshine State residents the right to make informed decisions about the distribution of their estate assets. You could include a charity in your estate plan by:
Bequeathing Lifetime Gifts
If you choose to donate to charity while you are still alive, you may be able to avail significant income tax deductions.
However, deductions are limited and require careful planning, and you may need to contact an attorney and tax professional to ensure that you are making the best use of your assets.
Leaving Money to a Charity in Your Florida Will
A last will and testament is a legal document that specifies how you would like your estate assets to be distributed upon your death. Simply designating a charity as a beneficiary to your will is among the easiest ways to establish a charitable legacy.
While writing a will is less time-consuming than establishing a charitable lead or remainder trust, any assets bequeathed through a Florida will are subject to probate. During probate, any interested parties—including disinherited beneficiaries, and even creditors—could contest the terms of your will. Even if a will contest is unsuccessful, it could deplete your estate’s resources, leaving little for your intended heirs. Working with a good attorney will help reduce or eliminate the possibility of litigation, and you may want to consider creating a revocable living trust to avoid probate.
Contributing a Charitable Rollover in Your Individual Retirement Account
A charitable IRA rollover, or qualified charitable distribution, allows certain donors to exclude retirement investment assets from their taxable income. These rollovers can also help retirees reach their required minimum distribution amount.
Establishing a Charitable Trust
A charity can be the beneficiary of a revocable living trust or an irrevocable trust. Trusts offer several critical advantages, as they can benefit heirs and charities alike. The two most common types of charity-specific trusts include:
- Charitable remainder trusts. A charitable remainder trust, or CRT, makes distributions to two sets of beneficiaries: a lifetime income beneficiary, which could be yourself or a family member, and the named charity, which receives the trust’s remaining principal upon the grantor’s death. Charitable remainder trusts are not subject to capital gains taxes or estate taxes, and can be used to claim income tax deductions while the settlor is still alive.
- Charitable lead trusts. Charitable lead trusts, or CLTs, provide similar tax benefits to CRTs. However, charitable lead trusts provide periodic income payments to the charity, with the remaining principal bequeathed to the grantor’s heirs after a set period of time or upon their death. A charitable lead trust can be used to support a philanthropic organization while ensuring that a surviving spouse, children, or other loved ones receive a significant inheritance.
What is Asset Protection?
Broadly speaking, asset protection using estate planning protect your assets from creditors, taxes or the cost of long-term care. Not every estate planning attorney is an asset protection attorney as there are a lite of different levels of expertise in this field of law.
Who Needs Asset Protection?
Anyone who has high-value assets or anyone who is considering protecting their assets from the nursing home should have some form of asset protection. Our estate planning attorneys create personalized asset protection measures based on your unique situation. We review your assets and income to discover what's currently protected (and what's not protected), as well as your debts and your likelihood of being named in a lawsuit. Then, we determine the best way to secure your unprotected assets, and make sure your plan will work as intended.
Without asset protection, your life savings and holdings could be lost to:
- Divorce. If you separate from your partner, the court may order you to give half of your property to your ex-spouse. Also, your estate plan could protect your children's inheritance from divorce, as well.
- Court judgments. If someone sues you or your business, you could be held personally liable for whatever amount the court awards. Asset protection can make some of your income and property exempt from collection.
- Nursing homes. It's possible to qualify for Medicaid to pay for long-term nursing care while keeping your assets safe to pass on to your children. However, you will have to create an irrevocable asset protection trust several years before entering a nursing home. Otherwise, you may have to pay for long-term care out of pocket.
- Taxes. There are a variety of tax planning strategies to avoid the federal "death tax," but which one will best achieve your goals? We can hel establish protection methods so that everything you worked hard for will go to your family, not to the government.
If you have questions about your Will, your estate plan, or your eligibility for Medicaid, the attorneys at DeLoach, Hofstra & Cavonis can explain your options. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.
What should I bring to a meeting with an estate planning lawyer?
Congratulations on making an appointment with our estate planning law firm! You have taken your first giant step toward protecting your wealth and family. We want this meeting to be as productive and painless as possible, so we have come up with a few tips to help you prepare for the visit.
Information We May Need to Create a Comprehensive Florida Estate Plan
If you haven’t done so already, you should begin by completing our estate planning questionnaire. Be sure to provide as much detail as possible so we can include all assets and holdings in your plan. You should also gather certain documents and information that can help us find the right plan to suit your specific needs and goals, including:
- Family details. Write down the full names, ages, and contact information for as many relatives and heirs as you can, including your spouse, former spouse(s), children, stepchildren, grandchildren, siblings, nieces/nephews, parents, and anyone else who could be a potential beneficiary.
- Bank information. We’ll need basic information regarding your checking and savings accounts, investment accounts (such as mutual funds), certificates of deposit, stocks, and other financial holdings. It’s important that you know whether any of these accounts are held in your name only or with a joint owner.
- Real estate information. We need to know the address of any property you own, such as your family home and any investment properties (vacation homes or rental properties). Again, we need to know if your ownership is jointly held with a partner, as well as the market value and outstanding mortgage balance.
- Business holdings. If you are a shareholder or partner in a business interest, we’ll need to know the business’s location and structure (such as an LLC).
- A list of your assets. Anything you have of value—such as automobiles, jewelry, art, antiques, or other personal property—should be listed along with the approximate current-day value of each one.
- Retirement and life insurance documents. Statements from the financial institution that is holding your life insurance, 401(k), IRAs, Roth IRA, or pension are required so that we know the account numbers and beneficiary designations of each.
Our Florida estate planning attorneys do much more than create legally-binding documents. At DeLoach, Hofstra & Cavonis, we answer all of your questions and create a plan that is uniquely tailored to your needs. Simply fill out the quick contact form on this page to set up a consultation.
When should I consider getting guardianship over my elderly parent?
Most people who wish to establish guardianship have already taken on the duties of caring for an ailing loved one. You may be cooking their meals, running them to hospital visits, or picking up their mail and paying bills on their behalf. However, there is a limit to how much you can legally do for your parent without the proper authority—and it is generally best to get this authority sooner rather than later.
Warning Signs That You May Need Guardianship Over an Elderly Relative
The choice to get legal control of a parent’s affairs can be unsettling, and can lead to family disagreements that push the decision, and the elder's safety, down the road. Unfortunately, putting off guardianship proceedings may force emergency action when your parent hits a crisis point, adding to your stress and discomfort in an already difficult time.
There are a few ways to tell if it’s time to start the guardianship process. For example, you may need legal help if there is a threat to your parent’s:
- Safety. Guardianship can help if a parent is suffering from a medical condition that often results in long-term decline (such as dementia, cancer, or organ failure) and he or she does not realize that they are unable to make the correct health care decisions.
- Life savings. The elderly are often targeted by scammers, caretakers, and even relatives looking to profit from their vulnerability. If you have seen strange transactions in your parent’s accounts or fear that someone is trying to gain access to their money, you should speak to us about guardianship.
- Health and well-being. If your parent has not appointed someone to act as the health care surrogate and the family does not get along, you will need guardianship to make decisions about their healthcare, housing, and long-term care. Under Florida law, if the elder has not created a health care surrogate, then the family would generally make decisions as the elder's health care proxy. But if the family does not get along and they do not agree on the health care decisions to be made, it is likely that a guardianship attorney would be necessary.
- Lack of Pre-Planning. Guardianships can often, but not always, be avoided through the proper estate planning. If your loved one has not created a durable power of attorney, for instance, and then loses capacity, then a guardianship will be needed to handle his or her affairs.
Lack of Capacity Standards for Guardianships
When a guardianship is sought, the court generally needs to find that the alleged incapacitated person lacks capacity. Here, an “incapacitated person” means a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person. Further,
- To “manage property” means to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income.
- To “meet essential requirements for health or safety” means to take those actions necessary to provide the health care, food, shelter, clothing, personal hygiene, or other care without which serious and imminent physical injury or illness is more likely than not to occur.
What is voluntary guardianship in Florida?
Most people who wish to establish guardianship are relatives of a loved one who is incapacitated. However, some family members realize that they're incapable of handling certain financial matters on their own, and wish to surrender control of their affairs willingly. If you're unable to manage your finances, Florida law allows you to seek voluntary guardianship over property and assets.
Benefits of Voluntary Guardianship in Florida
The greatest benefit of guardianship is that it helps to protect your assets from those who would take advantage of you if you suffer an illness, are diagnosed with dementia, or have a progressive health condition that prevents you from making your own financial decisions.
There are other advantages to voluntary guardianship of property, including:
- Choosing your guardian. People suffering from illness may not recognize their inability to handle their affairs until it’s too late, forcing their families to step in and begin guardianship proceedings. A voluntary guardianship gives you the ability to choose who will serve as your guardian now, instead of taking a chance that a relative you might not trust will seek guardianship later.
- Setting your own limits. Taking action now allows you to control how much of your property is handled by your guardian. You may give your guardian authority to manage specific assets, such as stocks, or the entirety of an estate, and can choose how long the voluntary guardianship remains in effect.
- Protection of the courts. If you simply hand over control of your finances to a family member, there are no restrictions in place to prevent them from using your assets for their own gain. Voluntary guardianship is supervised by the courts, so your chosen guardian will be legally required to manage your affairs in a way that benefits you and your estate.
You should know that the state of Florida only recognizes voluntary guardianship over property. A voluntary guardian won't be able to make medical decisions on your behalf nor choose where you'll live. If you wish to give your guardian medical authority, you should consider including a durable power of attorney as part of your estate plan.
When would you want a Voluntary Guardianship?
Most estate planning is done to avoid any type of guardianships, but there are times when estate planning alone cannot stop people from hurting themselves. Here is an example of when we would think a voluntary guardianship would be helpful:
Mom, age 84, is getting forgetful but is still legally competent. She has a trustworthy daughter who lives locally but she also has a difficult son with "spending problems" who shows up to beg his mother for money. Mom is just not able to say "no" to lending (or giving!) her son money. The son has even taken mom to see an attorney to try and become her power of attorney. While mom is competent, placing her assets under a voluntary guardianship may be the best way to make sure mom cannot take her own money and just give it to her son.
Alternatives to a Voluntary Guardianship
While every situation is different, it is possible that a good estate plan can prevent a guardianship, such as through creating a revocable living trust and naming a trusted person as the trustee. But this has limitations if, for instance, the elder is subject to bad influences from close family members, as an example.
The attorneys at DeLoach, Hofstra & Cavonis, P.A. can meet with you, listen to your concerns and help discuss options to make sure you or your loved one is protected.
If I have a good estate plan, can I avoid a guardianship proceeding altogether?
For the most part, yes. But as is always the case, the answer is “it depends.” As in cases where an estate plan is not updated to adjust to changing life circumstances. An estate plan is never a “set it and forget it” type of thing. Here is one example:
A married couple in their sixties, nearing retirement, with one adult daughter makes an estate plan. As part of the estate plan, the couple appoint each other the agent on their respective Powers of Attorney, and their adult daughter as the only successor agent.
In the ensuing years, their daughter predeceases each of them. Many years later, now in their 80s, the husband becomes incapacitated, and while serving as the husband’s agent under the Power of Attorney, the wife (the “caretaker spouse”) dies. In this tragic, but not uncommon example, the last to survive is incapacitated, with nobody authorized to manage his affairs through the Power of Attorney. A guardianship will need to be created to manage the health and finances of the surviving husband.
Importantly, it should be noted that even this example could have been avoided if the couple simply updated their Power of Attorney at the death of their daughter by adding one (or two) successors (i.e. grandchildren, nieces, nephews, etc.). The takeaway being that an estate plan needs to be revisited by everyone in order to account for the various changes in circumstances life brings.
Further, one of the key ways to avoid a guardianship is by creating a durable power of attorney. This document allows the person of your choice the ability to make your legal and financial decisisons. Here, you can read about how a good durable power of attorney has its own limitations in preventing a guardianship.
Another key aspect of estate planning involves elder exploitation. Here, you can learn about how a good estate plan can help prevent elder exploitation.
If you need help updating your estate plan or avoiding elder exploitation for your loved one, please do not hesitate to contact us.
Why Is It Important to Fill out the Questionnaire Prior to Your Meeting?
Why Is It Important to Fill out the Questionnaire Prior to Your Meeting? (Transcript)
D. "Rep" DeLoach III, Estate Planning and Board Certified Elder Law AttorneyThank you for choosing our law firm to help with your estate planning. As part of your initial consultation, we're going to send you a questionnaire for completion for you to bring in with you to your initial appointment. This questionnaire is very important to us and it's very important that you take your time to fill out completely and accurately.The questionnaire will set out your age, address, occupation, but also gives the names of potential beneficiaries. So it'll spell out things (or names) that we may need, or other important aspects to your estate plan. We'll also need a list of your assets in the questionnaire and those assets will provide us a basic understanding of your estate plan. And this is a very, very important piece of the plan.We need to know your assets because we need to know how to best plan your estate based upon where your assets are, what are the potential values of the assets, how these assets should be distributed. And it's important that you do this and take your time. It's going to help make sure we have a great first meeting, and we don't have to go back and get basic information. We can jump right in and start helping you out.Again, we look forward to meeting you and thank you so much.
What is a fiduciary? Who should act as my fiduciary?
When you are planning for your death and incapacity, one of the first questions is who would be your fiduciary? Your fiduciary is one of the key decision-makers in any estate plan, and the potential roles include your successor trustee, personal representative (i.e. your executor), your attorney-in-fact (your power of attorney), and your designation of health care surrogate.
What is a Fiduciary?
A fiduciary is a trusted person or institution that can act for you upon your death or incapacity. A fiduciary is held to the highest standard of trust in the legal world. For estate planning purposes, your fiduciary roles can be separated out in different ways:
- Successor Trustee: While not everyone needs a living trust, your successor successor trustee can manage your financial affairs during your lifetime and also upon your death.
- Personal Representative: Also known as your "executor," your Personal Representative is appointed to handle your probate estate upon your death as part of the Florida probate process.
- Attorney-in-Fact: The person named in your durable power of attorney, this person handles your financial and legal affairs. If you become incapacitated and you have not created a durable power of attorney in advance, you may need a guardianship for someone to manage your legal and financial decisions.
- Health Care Surrogate: You should name a decision-maker if you are unable to handle your medical decisions. In Florida, you nominate this person in a designation of health care surrogate. If you become incapacitated without naming a health care surrogate, your family can become your health care proxy.
Often, the same person can serve in all of these fiduciary roles - your successor trustee, personal representative, attorney-in-fact and your health care surrogate.
Who should act as my Fiduciary?
First, you must trust the person you name in any role. There is no better way to create problems in your estate plan than to name an untrustworthy person. After that, the person you name should be able to act if needed. Someone who lives out of state, for instance, may not be a great choice if you have a trusted local person. Finally, you must trust this person’s ability to run your affairs. The person you name should have the financial and emotional ability to handle difficult situations in being your advocate. We have a list of ways to choose your health care surrogate, for instance.
What if I do not have any children or family?
While most people look to family fiduciaries, this is not possible for everyone for a variety of reasons. If you do not have a trusted family member who is able and willing to assist you, some estate planning attorneys serve as fiduciaries. If your estate planning attorney will not do this for you, he or she may know professional guardians and banks who could help you in the event of your death or incapacity. As an elder law attorney, our law firm serves in this role for some clients.
Can a married couple create a joint revocable trust?
Yes. A married couple can typically create a joint trust agreement, naming themselves as co-trustees. Under this arrangement, the married couple will own the trust assets during their lifetimes. Upon the death of the first spouse, the surviving spouse will retain control of all of the trust assets during his or her life and also have the ability to change the trust’s final distribution. A joint marital trust is not advisable for every situation, such as for those in second marriages and those with separate assets, but it can be useful for many estate plans.
As a follow up question - if my spouse and myself own all of our assets jointly, why should we create a living trust?
While jointly held assets avoid probate upon the first spouse’s death, a trust would still be advisable upon the death of the second spouse. Potential problems then arise if the surviving spouse is incapacitated and could not establish a trust. Additionally, a joint trust eliminates the possibility of a probate upon a simultaneous death. This means that a joint trust can help avoid probate if both spouses die at or near the same time.
We generally create joint living trusts for many situations. Exceptions to this could be second marriage type situations, for instance, where one spouse did not want to leave all of his or her assets to the surviving spouse.
If you want to learn more about creating your estate plan:
- Please download a copy of my free book, the Top 20 Ways to Protect Your Florida Estate
How often should I update my Durable Power of Attorney?
You should update your durable power of attorney at least every 10 years, if not sooner. Why?
- The laws change over time;
- Banks and other financial institutions may decline an older document;
- The people you name may change, particularly with a couple that names each other;
- Legal trends change where you may want to have expanded powers to protect your assets;
- and more!
What about a married couple getting older?
One matter to concern ourselves is with a husband and wife. A husband and wife typically name each other as their attorney-in-fact and/or health care surrogate with a child/children as alternate. As the spouses get older, they may diminish in their capacity. If this is the case, they should likely not be each other's agents as they likely cannot act to help each other. Here, the husband and wife would likely want to bypass each other as agent and go directly to a child as their helper. As an example:
Mom and Dad are both 92 and are both failing mentally and physically. Their older estate planning documents only name each other as power of attorney. If Mom fell and went to the nursing home, who could act for Mom? Only Dad! But Dad has capacity issues himself and may not be able to take charge in this difficult situation. So it is likely Mom and Dad would have wanted to update their powers of attorney and advance directives at this time.
If you want to learn more about estate planning, please review the following: