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Estate Planning

How do I change my advance directive?

By Elder Law, Estate Planning

Advance directives are documents that spell out your medical wishes for end-of-life care. Advance directives include living wills and the appointment of healthcare surrogates. As you get older it is important to revisit and update your advance directives so they properly reflect your intentions.

According to the American Bar Association, there are five “D’s” after which you should revisit your advance directives:

  1. Decade — When you begin a new decade in your life
  2. Death — When a loved one passes away
  3. Divorce — When you get a divorce or experience a big family change
  4. Diagnosis — When you are diagnosed with a disease or other health condition
  5. Decline — When you decline in health and lose certain abilities

Under Florida law, you may change or revoke your advance directive in a number of ways. You may sign and date a document that communicates your plan to revoke the directive, you can physically destroy the original, you can orally express your plan to revoke, or you can establish a new advance directive that replaces the old one.

If you have further questions on this topic or wish to set up end-of-life documents, contact our office at (941) 906-1231 to schedule an appointment with one of our attorneys.

January 17, 2017
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What property does not go into a living trust?

By Asset Protection Planning, Estate Planning

While it is common for people to put valuable assets in their living trusts, there is a long list of property that is usually excluded from trusts.

 

Property of Little Value

Property of little value may not need to go through probate, so it typically does not need to be included in a trust.

 

Property You Frequently Buy or Sell

If you don’t expect to own the property at your death, do not put it in your trust.

 

Cars

If your car is of little value, as most cars are, it makes sense not to transfer ownership to your living trust. Some lenders and insurance companies are hesitant to insure a car owned by a trust. This could become a confusing and burdensome problem. However, if you consider the vehicle to be a valuable antique, or if it is a mobile home attached to land, you may want to include it in your trust and transfer the ownership to the trust.

 

Life Insurance

The proceeds of your life insurance are distributed according to your policy and do not go through probate. Thus, you do not need to name your trust as the beneficiary of your life insurance policy.

 

Personal Checking Accounts

Because money moves in and out of these accounts so frequently, they are typically left out of living trusts.

 

IRAs, 401(k)s

Retirement accounts cannot be owned by a trust. However, you can always name a trust as a beneficiary or designate a beneficiary in the account documents to receive the assets when you pass away.

 

Cash

While there’s no way to transfer tangible cash to a living trust, you can transfer ownership of a cash account to a living trust. By designating a beneficiary, that individual will receive the remainder of those accounts. Once you put money in a bank account, transfer it to yourself as trustee and name the individual in the trust document as the beneficiary.

January 13, 2017
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How Does Remarriage Affect Estate Planning?

By Estate Planning

As our society has increasingly high divorce and remarriage rates, more individuals are faced with the task of updating or revising their Estate Planning documents to account for their change in partner. However, remarriage can make Estate Planning quite complicated, especially if each or either spouse has children by a previous partner.

The first step in updating your estate plan if you plan on getting remarried is to review yours and have your current partner review theirs. If you both decide that you would like to continue to keep your assets separate and leave everything to your respective children, then you will need to contractually agree to this by entering into a prenuptial agreement or “prenup”. At this time you may want to amend your advance health care directives and medical release forms as well.

If you have further inquiries, the skilled attorneys at Bach & Jacobs can assist you with Estate Planning. Please call our office at 941-906-1231 to schedule an appointment.

January 12, 2017
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What property goes into a living trust?

By Asset Protection Planning, Estate Planning

Unlike a testamentary trust, which is set up in a will and takes effect after someone’s death, a living trust is established and funded during one’s lifetime. A revocable trust can also be utilized to avoid probate, if that is a priority for you.

Typically, a revocable living trust involves three parties: the grantor, the trustee(s), and the beneficiaries. It is a good idea to include your most valuable property in a living trust. Some of these assets may include your:

  • House
  • Stocks, bonds, and mutual funds
  • Jewelry
  • Antiques
  • Brokerage accounts
  • Business interests

For real estate that is jointly owned, it is important to remember that you do not need to transfer it into a trust to have the property pass outside of probate because the property will go directly to the co-owner if you die by operation of law.

January 10, 2017
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Planning with Your Sibling to Care for Elderly Parents

By Estate Planning, Guardianship, Long-Term Care

Instead of coming up with a strategy for caregiving arrangements right after an emergency room visit or life-threatening event, it is good for families to meet early during a time when everyone is relaxed and rational. By meeting early, families can make arrangements when they are clear-minded and collected.

Another effective step in planning for caregiving is matching the parents’ wishes and needs with the capabilities of the siblings. For example, many elderly parents need help in areas like transportation, managing finances, and healthcare. Depending on the situation, one sibling might be able to assist with transporting the parents while another may be greater help in paying bills.

Lastly, it is important for siblings to remember that asking for outside help is sometimes necessary. If you and your siblings are still struggling to meet the needs of your parents, it is good to contact volunteer, hospital, and senior care programs that can provide their abilities and time.

January 6, 2017
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What are Medicaid’s Asset Transfer Rules?

By Asset Protection Planning, Government Benefits, Medicaid Planning

Transferring one’s assets prior to applying for Medicaid can create several problems. The government does not want individuals transferring all of their assets to children and relatives in order to qualify for Medicaid. Thus, Congress has put in place rules and penalties for transferring assets.

Some transfers that are deemed inappropriate by Medicaid include refusing to take an inheritance that is left to you, adding a person’s name to an asset, selling an asset for less than its fair-market value, and purchasing non-Medicaid compliant annuities.

The penalty period is determined by dividing the amount transferred by the average private cost of a nursing home in your state, so determined by Medicaid.

When applying for Medicaid, individuals must disclose all transactions during a period of time called the “look-back period.” As of 2005, the Deficit Reduction Act increased this period from 3 to 5 years.

Recipients of financial transfers who are exempt from Medicaid penalties include a spouse, a disabled child, a trust for the benefit of a disabled child, and a trust for a disabled individual under 65. And exemptions also apply to the transfer of a home. You may transfer your home without the fear of penalties to your spouse, a child under the age of 21 who is disabled, a sibling who has lived in the home and holds an equity interest, and a “caretaker child.” A caretaker child is a child of the applicant who lived in the house for at least 2 years prior to the applicant’s nursing institutionalization and provided care for the applicant.

Please contact our office to schedule an initial consultation for any of your Medicaid Planning, Estate Planning, or Veterans Benefits needs.

December 30, 2016
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Digital assets act grants personal representatives access to digital data

By Asset Protection Planning, Elder Law, Estate Planning

Senate Bill 494, also known as the Florida Fiduciary Access to Digital Assets Act, took effect July 1, 2016. The act allows fiduciaries to manage digital assets and communications in the same way one would with tangible assets.

Digital data includes emails, photos, social media content, and online account information.

The four types of fiduciaries that this bill applies to are personal representatives; guardians of minors or incapacitated persons; agents under the authority of a power of attorney; and trustees. Fiduciaries must provide evidence of their authority under Florida law.

The bill does not extend access to digital data to family members or loved ones who aren’t fiduciaries. Also, the act does not grant the fiduciaries the right to own the asset; it only allows them to access it.

By granting fiduciaries access to digital assets while you are competent, you can properly protect and plan for your assets.

December 27, 2016
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Preventing financial institutions from refusing to honor POA’s

By Asset Protection Planning, Elder Law, Estate Planning

In the last blog, we discussed the issue of financial institutions refusing to honor powers of attorney and making clients sign their own institutions’ legal forms.

In order to prevent this from occurring, here are some suggested steps to take:

  • Draft your durable power of attorney with a trusted and experienced Florida elder law attorney who will prepare comprehensive documents for you.
  • Show your DPOA to your financial institution to ensure that it will accept the document in the future. Make sure to have this agreement signed and in writing. If the institution does not approve of the DPOA, go back to your attorney for assistance.
  • If the institution is difficult to work with, ask your elder law attorney to speak with them or move your assets to a new financial institution.

While it is important to have a durable power of attorney, it is also critical to take the extra steps to ensure that it will be honored at other institutions. If you have more questions on this topic or wish to prepare end-of-life documents, contact our office at (941) 906-1231 to schedule an appointment with one of our attorneys.

December 23, 2016
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Financial institutions refusing to honor POA’s

By Asset Protection Planning, Elder Law, Estate Planning

In a recent New York Times article titled “Finding Out Your Power of Attorney Is Powerless,” the author discusses an issue that frustrates families and elder law attorneys alike —financial institutions refusing to honor powers of attorney. Some banks and brokerage firms have reportedly failed to accept powers of attorney out of fear of elder exploitation or concerns over liability.

Due to these reasons, the financial institutions have required their clients sign new forms with their institution. The banks have reportedly argued that some power of attorney documents were signed too long ago (“stale”) or even that it lacks the proper language.

Florida’s Durable Power of Attorney Act includes provisions aimed at preventing banks and financial institutions from refusing to honor a power of attorney, although they may legally require an opinion of counsel from a Florida lawyer that the document is valid.

The attorneys at Bach & Jacobs, P.A. can assist you in both the creation and enhancement of a durable power of attorney to ensure that it complies with Florida law.

December 20, 2016
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Death with Dignity: Appointing a Health Care Surrogate

By Estate Planning

For individuals who believe they have a right to die on their own terms, there are certain ways to set up end-of-life documents to reflect your wishes and values. Despite being a resident in states like Florida, which do not have laws legalizing assisted suicide for terminally ill patients, residents can create living wills and appoint health care surrogates to act in their interests if they wish to have life-prolonging treatment withheld in certain situations. If you believe in the right to die, there are a few things you should discuss with your appointed surrogate.

You and your health care surrogate should have a conversation about your values. Because your surrogate has the authority to make decisions for you when you are incapacitated, it is imperative that he or she knows how to act in your interest. You should also discuss life-sustaining treatments, and when and how you wish to use or withhold them. Lastly, your surrogate should have a copy of your living will in order to guide decision-making.

Your surrogate should be comfortable answering several medical questions. Make sure to discuss hypothetical medical situations such as the occurrence of a stroke, head injury, or progressive debilitating disease. Also, the surrogate should know whether you want to receive artificial nutrition and fluids, resuscitation attempts, or other life-sustaining treatment.

If you have further questions on this topic or wish to set up end-of-life documents, contact our office at (941) 906-1231 to schedule an appointment with one of our attorneys.

December 16, 2016
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