Why Estate Planning matters during the Coronavirus (COVID-19) and what you can do to prepare.

On March 17th, the outbreak of Coronavirus has grown to at least 4,226 cases, and numbers are still growing. According to the CDC, Florida alone is ranging from 101-200 reported cases, and the elderly is a suspectable target. The elderly and those with any underlying medical problems such as high blood pressure, heart problem, and diabetes are more like to see an increase in this serious illness. As Coronavirus continues to sweep through the nation, this leaves many individuals with the feeling of uncertainty. Many advisors are continuing to tell individuals to “stay the course” and ride this rollercoaster out. This advice leaves people uneasy when looking back from the lessons that were learned in 2008. Time is valuable right now to take action for this pandemic. We have an obligation to prepare and protect our loved ones in this infectious crisis. While this topic is always a hard conversation to have, estate planning is now more than ever a critical tool that can be used to assure that your wishes are carried out in the event of death or incapacity. There are four essential estate planning documents that can help ease the uncertainty of this pandemic and provide a plan for the Coronavirus.

A Healthcare Durable Power of Attorney:  A Power of Attorney is a legal document that gives someone you choose the ability to have the power to act on your behalf and make decisions. This can be done through a Healthcare Durable Power of Attorney, which is essential during an outbreak like Coronavirus. This will ensure that you receive the healthcare needed if you become ill.   Until May 1, we are offering a free Healthcare power of attorney with COVID-19 specific provisions.  See this article.

In Florida, an estate plan provides you a plan for what happens to your assets at your death. Another crucial part of your estate plan, specifically your will, is where one nominates who will be the guardian of any minor children. Although the court will decide what’s in the best interest of the child(ren), having an estate planning document that details your preference in place will hold considerable weight. Estate planning is important for anyone who has legal capacity, whether it may just entail power of attorney or medical care or extend to a full-featured plan, which would include trust and a will.  Today with the current situation with COVID-19, it is more important than ever to have a Medical Power of Attorney that permits the use of experimental, non-FDA approved, medications for the treatment of COVID-19.

While preparing a will or a trust is essential, it is also important to consider coordinating beneficiary designations on life IRAs, insurance, retirement plans, and so forth. A will should also includes planning during your lifetime and in case of your incapacity. Often the creation of an estate plan involves an array of topics such as asset protection and qualification for public benefits for the client, or the client’s loved one. Many times, spouses will take it upon themselves to devise a plan online without the proper instruction; let’s go through a scenario.

Here we have Tyler and Debra, who have created a plan with an online package. In this package, they prepare a trust and retitle the brokerage account and house into the name of the trust.  The couple also prepares wills. While preparing, each document language states that it will include everything be left to one another at the death of the survivor and divided assets among their three children. Tyler and Debra felt as if they had a great plan in place and that they would have no concerns involving probate. One thing they did not consider is that they could not change the ownership of Debra’s IRA during her lifetime. The first mistake that was made was not checking the beneficiary designations on the IRA. Before Debra married Tyler, she had a boyfriend as a known beneficiary for her IRA. This caused Debra’s previous boyfriend to obtain a bulk of the IRA asset and not her current husband, Tyler. This situation happened even though Debra named Tyler as the primary beneficiary of all her assets in her will and trust. Situations like these happen all the time and demonstrate why it is vital to revisit your plan and make changes to previous beneficiaries.

A medical power of attorney or Health Care Surrogate is an essential document.  With the current situation in Florida, we feel that everyone should be able to designate who they would like to make medical decisions if they are unable.

We have modified our Designation of Health Care Surrogate so that it can be signed at your home, and no office visit is required. This document will permit a spouse, kids, or whomever you designate to make medical decisions when you are unable.  Along with the Medical Power of Attorney, we include a HIPAA release. A HIPAA release permits your agent to speak with the medical professionals who are treating you as well as look at your medical records.

The laws have changed recently in Florida and your current document may not provide the specific authorizations needed for the latest changes dealing with the use of experimental treatments.  If your agent does not have the authority, they may not be able to provide you off label, or experimental treatments that are using medications which may help, but have not been FDA approved at the time you need them.

Florida Guardian Advocacy: How do I remain the Guardian of my special needs child?

In Florida, remaining the Guardian of my special needs child upon reaching the age of majority, 18 years, requires the parent to become the legal Guardian of the child through the Court system. Becoming a guardian is a legal proceeding. Typically a family member, petitions a court to determine that the individual cannot manage his or her affairs because of a disability (a lack of capacity). A guardian is the person appointed by a court to manage the affairs of the person with the disability. The Guardian’s role is to step into the shoes of the person with the disability and make decisions for them. There are two types of guardianships for an adult defined by the Florida Statutes: Guardianship of an Adult and Guardian Advocacy.

What is the difference between Guardianship of an Adult and Guardian Advocacy?

Guardianship of an Adult is intended for any adult with a disability. Obtaining guardianship of an adult can be expensive and is a more complicated process. Someone must petition a court to become a guardian and must also petition the court to determine whether the person with the disability lacks the capacity to make his or her own decisions. Determining whether an adult lacks the capacity to make his or her own decisions requires the court to appoint an examining committee to evaluate the person with the disability and file reports with the Court. Each of 3 medical professionals on the examining committee will prepare a report to inform the Court whether the person with the disability needs a guardian.

The most important job of a Florida Guardian

The most important job of a Florida Guardian is to ALWAYS act in the Best Interests of the Ward. A Florida Guardian is a person appointed by a court to take care of someone who cannot care for himself or herself. The individual who is determined to need help by the court is called the Ward.  This term is the same regardless of age  (Guardians of adult or Guardian of a minor). A Florida Guardian can be appointed by a court to make the Ward’s health care decisions, to manage the Ward’s assets, or both. A Florida Guardian should always make decisions based on the best interests of the Ward.

Acting in the Best interests of a Ward’s Person

Florida Guardianship Examining Committee: What must the reports include?

In a Florida Guardianship, what must be included in the Florida Guardianship Examining Committee Members’ reports? This September, the District Court of Appeal for the Fourth District of Florida examined the requirements of Examining Committee Members’ reports in Cook v. Cook. The Florida Guardianship Process is a legal proceeding in which the Court determines whether an individual, a potential Ward, has the required mental capacity to manage his or her own affairs. The three-person examining committee must examine the potential Ward and advise the Court if a guardianship is needed. A Guardianship is established after a court decides a potential Ward does not have the requisite mental ability. In a Guardianship, an adult is given the authority to manage the affairs of the Ward.

When a Court determines an individual does not have the requisite mental capacity to manage their affairs, certain rights are taken away. In most instances, more rights are taken away than when convicted of a felony. Due to the significance of taking away an individual’s rights, the Florida legislature has laid out specific requirements that must be strictly followed.

Florida Guardianship Abuse: Palm Beach Guardian under Fire

Florida Guardianship Abuse is unfortunately far too common as many retirees flock to Florida for retirement. Retirees move to Florida to enjoy the beaches, sunshine and tax advantages. At any given time, there are 30,000 to 40,000 open guardianships cases being overseen by the Florida Court System. Regrettably, many of these retirees are not legally prepared for when they can no longer care for themselves. Being legally prepared for not being able to care for oneself means having advanced directives in place; a Durable Power of Attorney and Designation of Healthcare Surrogate. Not having these documents results in a guardianship being necessary.

A Florida Durable Power of Attorney allows an individual when they can still care for themselves, to choose who will oversee their financial assets when they cannot.

Can a Durable Power of Attorney be signed if a Guardianship is needed in Florida? A Durable Power of Attorney is a legal document that allows a competent adult to decide whom can make financial and healthcare decisions for them when they cannot. A competent adult can make his or her own financial and healthcare decisions, also referred to as having capacity. A Guardianship is established when an adult no longer has capacity and is set up through the Florida Court System. Through the Florida Court System, a Court decides who will make financial and healthcare decisions for an individual who no longer has capacity. The person appointed to make financial and healthcare decisions for the individual is a guardian.

Let’s take the following for example: Your mother’s doctor just informed you she is no longer has capacity. You need to become your mother’s guardian because she does not have a Durable Power of Attorney. However, can a Durable Power of Attorney be signed if a Guardianship is needed?

In Florida, the Guardianship Process begins when a Petition for Appointment of Guardianship and a Petition to Determine Incapacity are filed with a court. At the time the petitions are filed, an allegation is made that an individual no longer has capacity. Whether or not someone has capacity remains an allegation until after a court rules on the Petition to Determine Incapacity. A Judge is the only person who can determine if someone has the capacity to make their own financial and healthcare decisions. Additionally, a guardianship cannot be established until after a court makes a ruling on the Petition to Determine Incapacity.

For several years the VA has been working on changes to the rules for qualification of certain benefits dealing with transfers, a look back period, assets in trust,  and income.  Tomorrow the following rule change will be published, watch for some analysis on this and how it has changed in the next few days.

You can download a copy of the new rule here  2018-VA Rule Changes

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