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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When should I consider getting guardianship over my elderly parent?
Most people who come to us 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.
We understand that seeking a guardianship is a hard decision—and while we cannot change the past, the attorneys at DeLoach, Hofstra & Cavonis can take it from here. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.
What is voluntary guardianship in Florida?
Most people who come to us 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.
We Can Help
The attorneys at DeLoach, Hofstra & Cavonis can meet with you, listen to your concerns and help discuss options to make sure you or your loved one is protected. We can help establish voluntary guardianship if necessary, and ensure that your wishes will be followed. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.
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
What does a designation of Health Care Surrogate do for a Minor?
A Designation of Health Care Surrogate for a Minor (HCS) provides authorization to a nominated person, other than a natural parent or legal guardian, to give consent to medical treatment on behalf of a minor child. The nominated HCS may complete any consent forms and access medical records. Without the HCS, it can be stressful for a stepparent, grandparent, godparent, or supervising adult. Some examples of when this document is helpful are:
Jill and her stepson, Jack, are involved in a car accident on the way to school. Jack is rushed to the hospital, but Jill cannot get any information regarding Jack’s condition or his treatment. This is because Jill, as a stepmother, has no legal authority until all persons who have priority under Florida law are reached.
Parent or Child is Traveling
A HCS can also be helpful when parents go out of town, leaving their child in the care of a third party, or a child travels without his/her parents, such as for summer camp or extracurricular activities. When completing a HCS, a legal professional can help ensure everything is done in a correct and legally effective manner. For more information, please call me.
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:
Why use an attorney to change your estate planning documents?
You should use an attorney to change or amend your estate planning documents (last will and testament, power of attorney, revocable living trust) because you want to be able to rely upon these documents upon your death or incapacity.
First, you should go to an attorney to create your estate plan because only an experienced estate planning attorney can apply your specific situation to the facts. No on-line form can give you advice based upon your own situation. We generally think that estate planning is much more than just "document preparation." While some familial situations may be simple, we want to make sure the documentation, goals and assets all align, and an estate planning attorney is the best person to make this happen.
Next, changes to the documents must all be done with care and should be done with an attorney as well. Any changes to your documents must be made in the same way your original documents were created. This typically means witnessing and notarizing the changes, among other matters. You do not know what you do not know.
True Story: We created a last will and testament for a client who left money to his girlfriend. Before he died, he crossed his girlfriend off the will and initialed the change. When he died, the change he made had no legal effect - his ex-girlfriend inherited the money from the will.
Another True Story: I received a frantic phone call from a daughter. Her father just had a stroke. The father created a living trust through an on-line company only months before, but he did not even create a last will and testament, durable power of attorney or other incapacity documents. Dad died shortly after our conversation and we are probating his assets, among other matters, while dad could have just gone to see an attorney and saved his family a lot of grief, heartache and money with going to a good attorney for his estate plan.
This is the point - your life, your family, your wishes are all too important to leave to chance, so you should see an attorney to help make sure your wishes are followed. Estate planning is difficult enough as there are many things that can go wrong, but leaving things to chance and not seeking professional advice in order to save money just should not be a priority. Your end-of-life wishes, and your family, are just too important to take the cheap way out to avoid attorneys.
Want to learn more about creating a good estate plan?
Come to one of my free monthly seminars to learn more! Follow this link to learn more and register to attend our no-obligation seminar.
Download my Free Book!
Besides my free monthly seminar, I also wrote a book, the Top 20 Ways to Protect Your Florida Estate. Download your free copy today!
Are my out-of-state estate planning documents good in Florida?
If you just moved to Florida and have estate planning documents done in another state, the documents themselves may be valid, but you would want to have a Florida attorney review the documents to make sure.
Florida law says that if your estate planning document was valid in your original state, it will be valid in Florida. This is due to the full faith and credit clause of the United States Constitution. So your existing document is "valid", but will it be as "good" as it should be? Mileage will vary, but your out-of-state estate planning documents could likely be updated to make sure:
- Applicable Homestead laws are correct - these rules are very Florida specific
- Durable powers of attorney are very state specific, so it should likely be updated. If you became incapacitated, you would not want to rely upon an out-of-state power of attorney, under most circumstances
- Advance directives (your health care surrogate and living will) are fairly state specific, so they would likely need updating
- Revocable living trusts are generally interpreted according to their state of origin, so it would likely need to be changed to correspond with Florida law
One of the first things we think about is that most of the time, most of us procrastinate making changes to estate planning documents, so it is likely that your estate planning documents are old and need to be updated, regardless.
The point to all of this is that your documents are likely valid, but a good estate planning/elder law attorney should review them to make sure you and your family should rely upon them.
If you want to learn more about your Florida estate plan, you are welcome to download our free book on Florida estate planning.
If you live in the area, we invite you to attend one of our free monthly seminars on estate planning.
What is a Health Care Proxy and how is it Different from a Health Care Surrogate?
A health care proxy is used in Florida when someone is incapacitated and has not created a designation of health care surrogate or the designated surrogate is unable or unwilling to act. The health care proxy statute provides the legal ability for the family and others to take over someone's health decisions if the incapacitated person is unable to make health care decisions themselves. When an estate planning attorney (like us) helps with incapacity planning, we always do the appropriate advance directives, which includes the living will and health care surrogate designation. If someone fails to correctly plan ahead for their incapacity, the Florida proxy law provides an orderly determination for who will make the incapacitated person's health care decisions.
The Florida Health Care Proxy statute provides the order of people who can make decisions for the incapacitated person who does not have a capable health care surrogate as follows:
(a) The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability as defined in s. 393.063, who has been authorized to consent to medical treatment, if such guardian has previously been appointed; however, this paragraph shall not be construed to require such appointment before a treatment decision can be made under this subsection;
(b) The patient’s spouse;
(c) An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation;
(d) A parent of the patient;
(e) The adult sibling of the patient or, if the patient has more than one sibling, a majority of the adult siblings who are reasonably available for consultation;
(f) An adult relative of the patient who has exhibited special care and concern for the patient and who has maintained regular contact with the patient and who is familiar with the patient’s activities, health, and religious or moral beliefs; or
(g) A close friend of the patient.
Example: Mom has not done correct planning with her advance directives and she has a stroke and cannot make her own healthcare decisions. She is not married and has 3 children. Florida law provides that her three (3) children are her health care proxy, and that the majority decision on mom's health care will rule.
The Florida Department of Children and Families (DCF) has a health care proxy acceptance affidavit (download the form for free here - note that this is a direct download and your web browser may block it), which can be very helpful for those seeking to help take over the health decisions (defined below) of their incapacitated loved ones. Of course, good estate and incapacity planning tries to avoid the health care proxy but if your loved one becomes incapacitated and a health care surrogate was not created, you can follow this statute and download the DCF affidavit (above) to help your family member.
In the day and age of the coronavirus and COVID-19, many more people may become incapacitated without advance preparation, so this form may be useful.
How is it determined that someone is incapacitated?
You are incapacitated/incompetent to make your own health care decisions when you lack the ability to provide informed consent. Informed consent means consent voluntarily given by a person after a sufficient explanation and disclosure of the subject matter involved to enable that person to have a general understanding of the treatment or procedure and the medically acceptable alternatives, including the substantial risks and hazards inherent in the proposed treatment or procedures, and to make a knowing health care decision without coercion or undue influence.
What powers does a health care proxy have?
Florida Statutes gives the proxy the power to make the incapacitated person's health care decisions, listed as follows, which includes the power to provide:
- Informed consent, refusal of consent, or withdrawal of consent to any and all health care, including life-prolonging procedures and mental health treatment, unless otherwise stated in the advance directives.
- The decision to apply for private, public, government, or veterans’ benefits to defray the cost of health care [such as Medicaid].
- The right of access to health information of the principal reasonably necessary for a health care surrogate or proxy to make decisions involving health care and to apply for benefits.
- The decision to make an anatomical gift pursuant to Florida Statutes.
Please note that while the proxy can apply for Medicaid benefits on the incapacitated person's behalf, the proxy does not give someone the ability to access someone's bank accounts or make other financial or legal decisions.
What about financial decisions?
A health care proxy (or designation of healthcare surrogate) does not give the ability for the family to make financial decisions, which includes banking, bill paying, legal matters and more. If the person needing help is competent, then he or she should do a durable power of attorney with a good elder law attorney. If the person is incapacitated and family member needs to assist them with bill paying, financial matters and other legal aspects, then someone may need to petition for a guardianship in order to help make the legal and financial decisions. The guardianship process can also take away the incapacitated person's rights, which may be necessary when someone has dementia and does not recognize their own incapacity.
What if someone is incapacitated but not accepting their incapacity?
In this event, it is possible that a guardianship will be necessary to help manage the incapacitated person's affairs. A Florida guardianship means that a court takes away the incapacitated person's right to make their own decisions.
If you want to learn more about estate planning in Florida, please feel freed to download a copy of my book, The Top 20 Ways to Protect Your Florida Estate.
Further, you may also want to read:
- How Estate Planning can Prevent a Guardianship
- The Florida Elder Exploitation Injunction
- When would I need a guardianship in Florida for my elder?
How can I dispose of personal property in my estate plan?
Florida law permits the use of a “separate writing” to dispose of certain items of personal property part of your last will and testament. Here are some common questions and answers that may assist your family from arguing over certain items upon your death, all in a simple and efficient manner.
Why use a Separate Writing in my Estate Plan?
A separate writing is best used to make sure certain tangible items go to certain people who may otherwise argue over who receives what. This allows you to make small changes to your estate without going to your attorney for items of personal property.
How do I use a Separate Writing?
If your will or trust authorizes a separate writing, you can create a list of certain property to be distributed to named beneficiaries. The writing must be signed and dated but it is not witnessed or notarized. You should describe the item with specific clarity.
What is covered with a separate writing?
Your separate writing covers antiques, furniture, jewelry and more, but specifically excludes gifts of cash, stocks, and bonds. If you think your heirs may argue over the property, or if you promised a specific item to that person, you would write it down on a separate sheet, which is then legally binding.
Where should I keep the separate writing?
Keep it attached to your will or in your estate binder so that your heirs could easily find it upon your death.
Learn more about Florida Estate Planning
Good estate planning means more than just will, trusts and incapacity planning, but also trying to avoid arguments or hurt feelings with your loved ones. If you want to learn more about estate planning, join us for one of our free monthly seminars.
What Happens to the Power of Attorney When Someone Dies in Florida?
In Florida, like in all states, the power of attorney ends when the principal/grantor dies. A durable power of attorney is a useful document that gives your agent the power to help manage someone's legal and financial affairs during their lifetimes. When the principal/grantor dies, the power of attorney ends. This may mean that the decedent's estate/probate takes over or a number of other possibilities.
The next question: who is in charge upon death? This may mean that the decedent's personal representative/executor would then take over. This may mean that the probate process would then take over. If the decedent had a revocable living trust, the successor trustee takes over and manages the decedent's affairs. You may need legal help with this part of the process, or at least a consultation with a good probate attorney.
You can learn more about the probate process with our free handout: Navigating the Florida Probate Process
If you are concerned about the effects of probate upon your death, you may want to establish a revocable living trust for you and your family's benefit.
How can I make sure my estate wishes are followed after my death?
The thought of losing control over a home or business can be a great worry to most people, especially after they've invested so much of their time and effort into building their legacy. While it's possible to pass everything on to your loved ones, there are several precautions you'll need to take along the way—especially if your estate plan has been left open to technicalities that can rob your heirs of their inheritances.
Provisions for the Future
In order to make sure the correct beneficiaries inherit and that your property is divided according to your wishes, your attorney should make the proper additions to your estate plan during your lifetime. Depending on your goals, these provisions may include:
While most attorneys merely create the financial framework for their clients, the experts at DeLoach and Hofstra help clients fund their estate plans with IRAs, 401ks, and transferring assets into trusts. We also advise you on the best use of revocable and irrevocable trusts, IRA trusts and special needs trusts to make the transmission of your holdings as painless and accurate as possible.
The beneficiaries you choose to inherit your property will vary over the course of your lifetime, and the provisions you make for your relatives may change as you get older. Children who have come of age may no longer need the trusts that you established for them, while former spouses may still collect on your life insurance policies if their names haven't been removed. We can help you select the beneficiaries who are most likely to adhere to your wishes.
Notating Gifts and Loans
If one of your children, dependents, or beneficiaries has taken a loan from you, it may be worth notating it in your estate plan. An unpaid loan at the time of death may affect the amount each person inherits; while classifying the loan as a gift may carry tax implications.
Anticipating and avoiding common sources of conflict during inheritance helps keep family members together as grief and tensions run high. Clearly outlining the manner of your funeral arrangements and interment in advance—and notifying affected parties while you are alive—can go a long way toward preventing disruptions later. We include funeral wishes as part of our estate planning binder.
Division of Personal Property
In addition to carefully choosing the people who will inherit your holdings, our estate planning binder contains separate lists to name who should inherit your cherished personal property. These items may be called into question if they're not signed and dated, or do not contain enough detail to fully describe each item.
Unlike other attorneys, the experts at DeLoach, Hofstra & Cavonis offer a review of your estate plan every five years to make sure your estate plan is current and your wishes will be followed. As part of this process, we can review the designations in your healthcare directives, decide who to designate as power of attorney, remove deceased inheritors, and add provisions for new inheritors, such as new spouses or children born after the previous estate plan was established.
The provisions enforced in an estate plan are final, and you won't be able to apologize or explain any of your choices to avoid hurt feelings after your passing. However, failing to make an estate plan in order to avoid potential negativity often creates more problems than it solves, and forces loved ones to deal with court battles and family arguments while they're trying to grieve. A thorough estate plan tells your loved ones they are special to you, and allows you to be remembered in the way that would please you most.
We Help You Maintain Control of Your Florida Estate Plan
The best way to avoid surprises and learn your best options is to prepare your plan with an experienced estate planning and elder law attorney. Use the convenient contact form on this page to schedule a consultation to speak to an attorney about the best way to protect your future wishes.
How Often Should You Revisit Your Florida Estate Plan?
It's important to review your existing estate plan regularly. A good rule of thumb is to go over all of your documents every three-to-five years, although residents who have a large number of assets may wish to review their estate plans more often. However, you shouldn't wait to make changes to your documents if you've experienced a life event that could significantly impact your future wishes.
Life Events That Can Affect Your Florida Estate Plan
A person’s needs, family members, and possessions change considerably over the years. Florida law allows for the protection of children, spouses, businesses, and even pet care planning, but these protections will only remain in place as long as you keep the designations on your estate plan current.
Major life events that can impact your estate plan include:
- Marriage or divorce. While the law allows some direct inheritance of shared property for spouses, your spouse will not automatically become your beneficiary. If you want your spouse to inherit your property; have access to your life insurance and brokerage accounts; and make end-of-life decisions for you, you must specifically name him or her in your estate plan. In addition, any former spouses whom you no longer wish to inherit assets or make decisions on your behalf should be removed from these documents as soon as possible.
- Birth and adoption. As your family grows, you may wish to expand your estate plan to accommodate new family members. Not only should you specifically name your children and grandchildren as heirs, but you should stipulate who will care for minor children if you die before the child turns 18. There are additional protections available if your child or grandchild has special needs; requires funds for education; or if you wish to provide for a child from a previous marriage.
- Buying a home. Any significant acquisition of property, real estate, or other assets should be included in an estate plan. For most people, a home is the largest life purchase they will ever make, and an estate planning attorney can advise them on how to pass on the property to a surviving spouse or children after their death. You should also update an existing plan if you move to another state; purchase real estate in another state; or wish to minimize the amount of estate taxes your beneficiaries will owe.
- Opening or closing a business. If you're a partner in a business concern, you can outline your wishes for succession; who should receive your holdings; and who should take over the day-to-day operations of the business. If the opening of the business involved borrowing a large amount of money, an attorney can prevent bill collectors from seeking debt repayment out of your personal holdings. If your business was sold or dissolved, an attorney can excise any professional beneficiaries from your will.
- Changes in your health. If you've been diagnosed with a degenerative condition or another health concern that can affect your decision-making ability, carefully consider who should care for you if you become incapacitated. Your estate plan should include powers of attorney for finances, designations of health care surrogate, and a living will—for both you and your spouse. Updating your documents may also allow your family to protect your assets in the event you need long-term care from Medicaid.
- Changing insurance policies. Update your estate plan any time you buy a new insurance policy or make a drastic change in your coverage. Beneficiaries designated in life insurance policies generally take precedence over those named in wills or trusts, but ensuring that all documents agree can save confusion and possible court costs later.
Changes to the Law
Many estate plans do not age very will due to changes in the law, so we generally say that you should review your estate plan with your attorney every 5 years. For instance, Florida drastically changed their durable power of attorney statute in 2011 and also changed the Designation of Healthcare Surrogate in 2015. While the Federal estate tax exemption is now very high (i.e., $5.49 million per person in 2017), your older estate planning documents may need drastic changes as well.
Legal Trends May Change
While most estate planning tries to save your family time and money by avoiding probate, other trends have recently emerged in estate planning. For instance, your estate plan can help protect your children's inheritance from their creditors, ex-spouses or even the high cost of long-term care. If you want to protect your assets from the high cost of nursing home care, you may want to consider an irrevocable asset protection trust as well.
We Can Help With Important Decisions
Failure to update wills and trust documents can cause confusion and financial problems for your family members down the road. For example, if you've named a guardian to your children who has predeceased you, your surviving family members may be forced to choose a guardian amongst themselves.
Reviewing your estate plan at regular intervals helps ensure that your wishes are followed and that your beneficiaries receive proper care after your passing. We can review the designations in your will, trusts, and healthcare directives, and advise you of changes in state or federal inheritance laws to minimize your tax liability. Contact us today to discuss your future wishes with a member of our legal team.
Can I name multiple people as my power of attorney?
Yes, you can name more than one person on your durable power of attorney, but our law firm generally advise against it under most circumstances.
First, there is no legal reason why you cannot name more than one person as your power of attorney - you can name 10 people if you want. The real question is should you name more than one person? The answer is generally no, unless you have a specific reason and considered the potential problems. The reason why we do advise more than one is in the event of a conflict. With multiple named attorneys-in-fact, there is always the ability for people to conflict on decisions. Conflicts may mean paralysis as each decisionmaker can overrule the other and the only way out would typically be a guardianship proceeding. Who is in charge with multiple powers of attorney if a conflict occurs? Answer: no one (or everyone)! We prefer to name one person at a time in descending order - i.e., start at your spouse and move to children in order of priority or what have you.
There is, however, a great exception to this rule: when you have an aging couple, it may be best to name your spouse and a responsible child as attorneys-in-fact. This will help in the event either parent is incapacitated and needs help through the durable power of attorney. An example is as follows:
Mom and dad are age 90 and having a few health issues and memory problems. They are both acting independently and are in charge of all decisionmaking. Due to their advanced age, however, they name their trusted and responsible son/daughter as co-power of attorney so he/she can step in and help when or if they have a problem at the same time. We also granted independent signature powers so they can act alone. Our planning in this situation is far preferable to the parents just naming each other because of a possible downturn at or around the same time. This can help prevent crisis situations and stress for the family, to say the least
Consultation with a good attorney may help you figure the right way for your own situation, of course. If your children travel and are all trustworthy, for instance, then naming children and co-attorneys-in-fact with independent signature power can be just fine. If you do not do things the right way, the power of attorney may not be able to prevent a guardianship, so think about things thoroughly!
What about Co-Health Care Surrogates?
Also, while you are here, you may want to think about your advance directives (health care surrogate and/or living will). Remember, your power of attorney is for financial and legal decision making while your health care decisions are subject to your advance directives. Now, we do not want you to name co-health care surrogates - that is generally a bad idea. You do not want co-surrogates to make decisions on your end-of-life decision making.
Making it Easier on your Children?
Sometimes people think about spreading the potential burden around been family members, and that can be helpful in the right situation. For instance, you name your financially savvy daughter as your power of attorney but your son who is in the medical field as your designation of health care surrogate. This way, one can pay the bills while the other can do all the doctor/care management work. A lot of factors go into the decisionmaking of who to choose as your health care surrogate.
How does a Living Trust Work?
Planning with a revocable living trust is very common in Florida. A trust is an excellent way to avoid probate and prepare for your incapacity and can be recommended under a variety of situations. Learn more about how durable powers of attorney interact with revocable living trusts here.
Why use an attorney to help with your incapacity planning?
Your incapacity planning may be the most important estate plannind decision you make and you should not use on-line forms to assist you. Simply put, the training a good elder law attorney receives, plus the experience of working with elders on a daily basis, cannot be replaced by forms. Do not put your faith in on-line forms!
We hope this post has been helpful! Please let us know if you have any further questions or want to attend one of our free estate planning or elder law seminars. You may also want to download my free book, the Top 20 ways to Protect Your Florida Estate.