In Florida, a court appointed guardian is held accountable by the court system in multiple ways, thus safe guards have been put in place to protect a ward’s assets and health. Each year the guardian must file an annual accounting with the court, which is first reviewed by the clerk and then sent to the judge for approval. The purpose behind this system is to make sure the guardian is using the ward’s assets solely for the benefit of the ward and for things that are only necessary or reasonable for the ward. An attorney must also represent each guardian. If the clerk or judge finds something is amiss in the annual accounting, then the court will take action. The guardian can then be removed and/or criminally charged. The annual accounting is governed by Florida Statute 744.367 and is required to be filed with the court each year on or before April 1; however, the court can authorize it to be filed by the fiscal year. Continue reading
Guardianship of an Adult
Obtaining the guardianship of an adult is not a long drawn out process as one might think. If everything goes smoothly and it is not contested by anyone, a guardian is generally appointed in roughly 30 days. Once you have obtained an attorney and a Petition to Determine Incapacity and Petition for Appointment of Guardian have been filed with the court, three things are done by the court:
- Three (3) doctors are appointed to examine the potential ward and they must file their reports within 30 days of receiving their appointments.
- An attorney is appointed to represent the ward; and
- A hearing is set on the Petition to Determine Incapacity for roughly 30 days out, depending on the court’s calendar. At the end of this hearing, if the ward is deemed incapacitated, a guardian is appointed.
Many women in today’s world stay single by choice, and for those women who are married, we know divorce rates are very high. Studies also show that women are far more likely to survive their husbands. Therefore, we advise all women to create estate plans as if they are a single person.
The first step to making an estate plan is to identify a means to pay for future long term care. A 70 year old woman is likely to live another 15-20 years, which means that estate plans must now last longer than before. We encourage all of our clients to consider long term care policies and other hybrid policies, which have retained benefit features in case a policy is dropped.
The next step a single person should take is to select an executor of a will and a power of attorney agent. A failure to name these persons means a judge will one day be in charge of selecting who will serve these pivotal roles in managing the estate. It is best to name these people ahead of time so a person can ensure his or her health and estate are managed by competent people. These roles do not have to be filled by friend or relatives, so we recommend starting a “recruiting process” to find someone qualified to fill these roles. While more expensive, there are many professionals and or financial institutions that can handle these matters.
Avoiding probate is one of the main goals of estate planning because it saves money and time, so the beneficiaries can enjoy their inheritances sooner. However, avoiding probate has no effect on the taxes to be paid or the debts owed to creditors.
One common misconception is that a person’s debt will pass to their spouses, family, or friends after he or she dies. This is untrue, as while heirs can inherit the decedent’s assets they cannot inherit the debt. However, there is an exception if someone was jointly liable on the debt.
Where does the debt go? The obligation to pay the debt stays with the estate of the decedent. When someone dies, their estate is born and is the sum of all of that person’s assets. The estate will have an executor that is designated by the will or the court to handle the estate’s affairs. This means transferring assets to the beneficiaries, paying the gift and estate taxes, and settling debts owed to creditors. Continue reading
A special needs trust is a great tool to support a loved one with special needs, because if someone leaves money directly to the person it may keep the person with special needs from qualifying for government benefits.
A Special Needs Trust is important because otherwise a beneficiary would most likely burn through his or her inheritance to pay for medical help. A beneficiary who receives a large inheritance will no longer receive government benefits like Medicaid because they will technically have too much money to qualify. A Special Needs Trust allows this money not be wasted because it is created with the specific intent of supplementing government assistance to help support someone with special needs. The money is thus used in a way that does not disqualify the beneficiary from receiving government assistance.
Long-term care is extraordinarily expensive, and the reality is that the majority of America’s senior care providers are in-home family members who provide those services out of the goodness of their hearts. These are usually family members that also have their own lives to live with careers and families of their own, so the additional daily schedule can be a big challenge
However, a life without fun is not worth living, and we recommend that every person spend time to get away and rejuvenate from the daily grind of everyday life. So our message to anyone currently caring for a senior is to take time for vacations. “But how?” you might ask; here are a few tips on how to take a vacation with an elder.
One of the most forgotten assets, or even a beneficiary, in estate planning is a person’s pet. Many clients have dogs and cats that are close members of the family and need a way to be taken care of after the owner passes. With a pet trust, a person may leave money to be used for the care and support of the pet.
Florida, along with most other states, currently allows individuals to create a trust with no human beneficiary. These trusts are usually drafted to take effect when the owner dies. A pet trust can be created to care for one of more animals that are living during the testator’s lifetime. The trust will end when the last surviving animal dies and usually cannot include animal offspring under most trust codes.
The short and quick answer is yes, it is a possibility, but you should first be familiar with applicable Florida Statutes and some definitions before proceeding. A Nomination of Successor Guardian is a document drafted and notarized by a current guardian of an incapacitated person. It names who the guardian would want to take their place upon their death or incapacity. It is not approved by a court and isn’t necessarily filed with the court either.
Has your loved one been deemed incapacitated by a court order and had a court appointed guardian over their person and property? Do you believe the court appointed guardian is improperly taking care of your loved one and managing their assets in their best interest? Are you concerned for your loved one’s safety and health? Are you afraid their assets are being wasted? If you answered yes to one or more of these questions, you might be considering trying to remove the court appointed guardian and becoming the guardian of your loved one.
Florida Statute 744.474 allows a court appointed guardian to be removed for any of the following twenty-one (21) reasons: Continue reading
In Florida, a voluntary guardianship over a person’s property is available for a competent person who is unable to manage his or her own financial affairs. To begin the process, the person seeking a voluntary guardianship files a petition with the court and is referred to as the petitioner. Once the petition is granted and a voluntary guardian is appointed by the court, the voluntary guardian has the authority to control and manage the financial affairs of the petitioner. A voluntary guardianship remains in effect until the petitioner’s death, incapacity or revocation of guardianship.
The petition filed with the court seeking a voluntary guardianship must: Continue reading