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Estate Planning

Special Needs Trust Fairness Act

By Asset Protection Planning, Government Benefits

Yesterday a historic bill was signed into law by President Obama.  It allocates over $1 billion to fund Alzheimer’s research to find a cause and a cure, and methods of prevention.  Since so many of our elderly we serve and their families are devastated by this terrible disease, we have been given hope that the necessary amount of attention has been given by this bipartisan legislation to address this issue which left unchecked, could overwhelm our institutional care programs and service delivery infrastructure.

In addition it immediately gives a disabled individual, who is legally competent, the right to establish their own self- funded d4A Special Needs Trust.  This is a trust which exempts assets from being considered by Medicaid.  However all self- settled special needs trust are subject to a Medicaid payback on the death of the beneficiary.  This will end the foolish waste of time getting an elderly parent or a court to establish an individual SNT for a person who could do so himself or herself, but for the mistake made in the original OBRA ’93 act that left out the word “individual.”

If you have further questions on this topic please contact our office at (941) 906-1231 to schedule an appointment with one of our attorneys.

December 14, 2016
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Death with Dignity: How do I withhold life-prolonging treatment in my end-of-life documents?

By Estate Planning, Long-Term Care

With the technological and medical advancements of the 21st century, life-sustaining treatment in end-of-life care has become more widespread and affordable. However, many individuals are against the idea of being kept alive by artificial means, especially when suffering from a terminal ailment. For those who are against such treatment, there are ways to withhold life-prolonging treatment in end-of-life planning documents.

Living Will

Crafting a living will allows you to communicate your wishes for end-of-life care. In this document, it is important to specify whether you plan on using life-prolonging treatment when you are incapacitated or denying the treatment.  Your doctors and family are required to honor the document.

Health Care Surrogate

Also sometimes referred to as a healthcare proxy, healthcare agent, and attorney-in-fact, your healthcare surrogate is responsible for making medical decisions for you when you are unable to do so yourself. By appointing a trusted health care surrogate, you can ensure that if you are temporarily or permanently incapacitated and unable to give informed consent, you will not be given life-prolonging treatment. The health care surrogate is only authorized to make medical decisions and does not have the capacity to access and use your funds unless you provide for that in another kind of document. It is important that you meet with your surrogate and clearly communicate your wishes and values so he or she can make the best decisions for you if need be.

It is wise to both draft a living will and appoint a health care surrogate. Your health care surrogate can use the living will as a guide in making decisions, including large decisions such as continuing or ending medical treatment. Also, if for some reason your health care surrogate is unavailable to advocate for you, your living will can help guide other caregivers.

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 13, 2016
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Death with Dignity: Using Advance Directives

By Elder Law, Estate Planning

While the debate about proposed death with dignity laws continues in Florida, it is important to know that current Florida law prohibits assisted suicide, which is allowed in several other states. However, there are still ways that you can have autonomy in directing your own medical care within the parameters of Florida law. In a living will document or advance directive, you can specify your refusal of life-sustaining treatments such as feeding tubes, chemotherapy, and artificial nutrition. Doctors, caregivers, and other health care providers are required to honor these documents.

If you have further questions about this topic or setting up your end-of-life documents, contact one of our experienced estate planning attorneys at (941) 906-1231.

December 9, 2016
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Death with Dignity in Florida

By Elder Law, Estate Planning

A movement that is spreading throughout this country is the death with dignity initiative, or laws that allow terminally ill patients to use prescribed medications to end their lives on their own terms. Also known as the right to die, death with dignity is only legal in Washington, Oregon, California, and Vermont. Although Florida and several other states have not adopted such laws, there are still ways to direct your own end-of-life medical care.

The death with dignity movement is a controversial one. Advocates posit that the laws minimize suffering for terminally ill patients, grant individuals authority, and lessen the burden on family, friends, and caregivers. Opponents of death with dignity believe that some patients could be pressured into making the decision, the regulatory authority over who can administer the pills is too lax, and the cheap cost of the assisted suicide could improperly affect the decision-making of doctors and patients.

This week, we’ll be blogging about what options you have as a Florida resident with regard to end-of-life planning.

December 6, 2016
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How to Use Advance Directives to Stop Financial Abuse of Seniors

By Asset Protection Planning, Elder Law, Estate Planning

Advance directives are documents that allow individuals to express their preferences and instructions regarding their healthcare and finances. Some advance directives include living wills, appointment of health care surrogates, and durable power of attorney documents. These documents are helpful in specifying your wishes for when you are unable to make decisions for yourself. By creating advance directives you can help prevent others from taking advantage of you and your assets in the event of incapacity.

When designating someone to fill these roles, it is recommended that you appoint someone trusted like a spouse, child, or a long-term friend. This person will make medical decisions for you, have access to records and finances, and will be given powers to act on behalf of you.

Living Will

A living will allows you to specify your wishes for life-prolonging procedures and end-of-life medical care.

Appointment of Health Care Surrogate

In this document, your health care surrogate has the authority to make medical decisions for you when you become incapacitated.

Durable Power of Attorney

A DPOA is used for making financial and legal decisions. While you are competent, you should designate an “attorney-in-fact” who will be given powers to act on your behalf.

Creating these documents is an important step in protecting you and your estate, and for ensuring safety and stability during times of incapacitation.

November 29, 2016
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What are alternatives to joint bank accounts?

By Asset Protection Planning, Estate Planning

While joint bank accounts can be a convenient and appropriate way for some individuals to title their bank accounts, joint ownership is not the best option for others. There are alternatives to joint accounts that can allow a trusted individual to have access to and properly manage your assets while you are alive.

One alternative to joint accounts is a durable power of attorney (DPOA). By signing a DPOA and filing it with the institutions where your accounts are held, your agent that you appoint in the DPOA can manage your finances for you, within the scope of your DPOA document. Your agent can still write checks and make withdrawals without your permission but they are legally obligated to make decisions in your best interest.

If your goal is to transfer the account to someone after your death without going through the probate process, then you can designate beneficiaries. The money from your accounts will pass directly to the individuals you designated without involving them in ownership while you are alive.

To review the title of your assets and whether it is consistent with your estate planning, contact our office at (941) 906-1231 to schedule an appointment with one of our attorneys.

November 25, 2016
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Changes in Estate Tax Law Alter Use of Bypass Trusts

By Asset Protection Planning, Elder Law, Estate Planning, Tax Law

In 2013, changes were made to estate taxes and now few people are subject to federal estate taxes. For those who die in 2016, the first $5.45 million of an individual’s estate is exempt from federal estate taxes, which means that up to $10.90 million is exempt for a married couple’s estates.

With these changes it now may be that a bypass trust is unnecessary for someone’s estate. Due to the restrictions put in place on the bypass trust, the surviving spouse has less control over the assets.

However, a bypass trust is still useful for estates larger than the current estate tax exemption. Additionally, even married couples who have less than the exempt amount of assets may still choose to use a bypass-style trust in order to provide for a surviving spouse’s income needs during their remaining life while still protecting an inheritance for children from a prior marriage.

To see a bypass trust would be appropriate for your family and financial situation, call our office at (941) 906-1231 to schedule an appointment with one of our attorneys.

November 15, 2016
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What is a Bypass Trust?

By Asset Protection Planning, Estate Planning, Tax Law

An estate planning tool that couples have utilized for years is the bypass trust. The trust is a long-term planning device that allows a spouse to leave property that will not be subject to estate taxes when he or she passes away.

For couples that plan their estates together, they can make sure that the property will be taxed only once between the two of them by leaving it in a bypass trust. In order to keep the trust from being taxed when your spouse dies, you must ensure two provisions in your documents—you must limit your spouse’s power to access the trust during his or her lifetime and you must restrict your spouse’s power to distribute assets upon his or her death.

These conditions must be in place to satisfy the rules set up by the IRS. However, you may give your spouse the right the withdraw principle for his or her health, education, and support. You can also appoint him or her as trustee of the bypass trust. While your spouse is not allowed to give the assets to himself, his estate, or his estate’s creditors, you can grant him the right to name specific individuals in his will who will succeed to the trust upon his death.

November 11, 2016
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What is an Incentive Trust?

By Asset Protection Planning, Estate Planning

An Incentive Trust is a tool used to encourage certain positive behavior in beneficiaries. Some of this behavior may include earning a college degree, maintaining employment, or abstaining from drug or alcohol use. Typically, the beneficiary would be paid a certain amount from the trust upon completing those obligations, or the trust would match a dollar of income for every dollar the beneficiary earns.

Oftentimes, the incentives included in the trust can include specifications such as maintaining a certain grade point average or passing a drug test. Also, you can encourage beneficiaries to participate in charitable activities so money could be distributed for working for a foundation.

While incentive trusts can encourage good behavior, they can also impose rigid rules that could end up working to the detriment of your beneficiaries.

November 4, 2016
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Can conveyance of property by Lady Bird deed avoid subjecting the property to probate?

By Asset Protection Planning, Estate Planning, Probate

A big advantage of signing a Lady Bird deed is that it avoids probate of the property after you pass away. In many states, including Florida, there is a Medicaid estate recovery program that seeks reimbursement from probate assets if you received benefits during your lifetime. But with a Lady Bird deed, the property is considered a nonprobate estate and the beneficiaries can inherit the property without having to reimburse the government for Medicaid benefits that you might have received.

November 1, 2016
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