Elder Law in Brevard County, Florida

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Estate Planning Tips for Florida Residents

Estate Planning Tips for Florida Residents

Estate planning is an important part of protecting your assets and wishes, but sometimes, it’s hard to sift through the details and know where to start. You may also need help from an expert to confirm you are addressing all the various aspects of the estate planning process. At The Law Office of Amy B. Van Fossen, we have been in practice since 2004, specializing in many aspects of elder care law, including estate planning tips for Florida residents. Read more about our estate planning tips for Florida residents.

5 Tips for a Comprehensive Estate Plan

  1. Hire an Expert: Preparing an estate plan is not a DIY project. It is important to ensure certain processes and procedures are followed, so your documents are legal and valid. Hiring an attorney with expertise in estate planning success is an important first step.
  2. Express Your Wishes: Every person and every family is different. It is essential that you share your goals with your estate attorney, so your legal documents are drawn up to express your personal wishes. Some things you may decide upon are your personal representative (executor/executrix), beneficiaries, power of attorney, guardianship of minor children, and wishes for long-term care.
  3. Consider Trust Options: Wills, revocable trusts, and irrevocable trusts are just three of the most common choices for documenting the plan for your estate. Depending on your age and goals for your estate, your attorney can help you choose the best option for your situation.
  4. Maximize Asset Protection: One of the most important reasons for estate planning is to maximize the protection of your estate assets by avoiding the probate process and ensuring that you have accounted for federal government and/or state estate taxes. This includes physical assets such as real estate, bank accounts, retirement accounts, insurance policies, online accounts, and digital assets you may own.

Follow Up: Many attorneys recommend a yearly review of your trust to update changes that may need to be made due to the beneficiary designations, additional accumulated or lost assets, changes in real estate, retirement plans, and your goals based on your health and preferences.

FAQ: What Is a Personal Representative and What Do They Do?

  • What is a personal representative (also known as an executor or executrix)? A personal representative is the person chosen by the deceased person or court to administer a person’s estate upon their death.
  • What does a personal representative do? The job of a personal representative is to see that the wishes of the deceased person are carried out according to their will or trust.
  • How necessary is a personal representative? A personal representative is an important advocate for your wishes. A good choice is someone whom you trust and who has the time and personal investment to make sure that your estate is properly administered, including managing death certificates, collecting assets, reviewing and signing Court documents, verifying outstanding debts, distributing assets to beneficiaries, etc.

The choice of an estate planning attorney for legal matters is an important and personal one. Please contact our office today to discuss your estate planning needs in Florida.

 

Does My Loved One Need a Case Manager or Guardian?

Does My Loved One Need a Case Manager or Guardian?

Establishing elder care planning can be confusing for families. Finding the right information about the options for care management will help your loved one remain as independent as possible. With the guidance of the team at The Law Office of Amy B. Van Fossen, P.A., your family will also protect your loved one’s assets and plan for quality of life when respite care is needed while you determine whether you need case management or guardianship.

What is a Case Manager?

Case managers act as points of contact in the care team that may include medical professionals, service providers, or assistants in someone’s plan of care. The relevant professionals may include a wide variety of social services, medical care, or legal care. The case manager plays a vital role in communicating new developments and critical information so that each member of the care management team can make informed decisions.

Why would an adult have a case manager?

There are many situations where it may be helpful for an adult to have a case manager. Particularly with elder care, this may be necessary when a loved one does not have the energy, health, or mental capacity to keep up with their daily care. A case manager plays a crucial role in a variety of tasks, planning, meeting with professionals, and coordinating everyday life for your loved one without removing their final decision-making authority.

How do case managers help families?

Case managers help families by serving as your extended arm when a loved one needs a care team but none of the primary family caregivers have the time or ability to serve in that role. A case manager can operate as a care manager for your loved one’s practical needs as well as serve as the primary contact for critical information that is needed by each member of the care team. 

How does an elder care attorney help with case management?

An elder care attorney is a valuable advocate for your loved one as the case manager is making decisions for their care plan. Partnering with an elder care attorney with a case manager can help your family consider a plan of care for a variety of concerns, expenses, and recommendations for care that may develop.

What is Guardianship?

Guardianship is a quality of care above a case manager intended to serve someone who has less ability to manage their day-to-day lives or important health care and financial decisions. A guardian can be a family caregiver, a close friend, or a fiduciary with several wards who answers to the court on the person’s behalf.

Why would an adult need a guardian?

The most frequent scenario where an adult needs a guardian is when they have a limited or complete inability to manage their own life decisions. There are two types of guardianship in Florida, limited and plenary (full). Under limited guardianship, the adult in care (referred to as a ward) can still make some independent decisions. If the adult is under plenary guardianship all decisions about the ward’s person and property are made by the guardian.

How does an elder care attorney help establish guardianship?

Our elder care attorney team can help file legal documents such as a petition for guardianship to assess the physical, mental, and functional health of your loved one to determine the types of care needed. 

Then, after the level of need is established, a personal contact from our law offices can help you locate a guardian or help your family establish the best guardian for your loved one.

If you believe your loved one may need a case manager or guardian in Central Florida contact The Law Offices of Amy B. Van Fossen, P.A. Our attorneys will take care to listen to your loved one’s wishes and ensure your family has a clear plan in place. Contact us today to learn more about how Florida case management and guardianship work.

Trust Funding: Real Estate and Financial Accounts

Trust Funding: Real Estate and Financial Accounts

After you have created a revocable trust, it is necessary to fund your trust with your assets. Funding a trust is the transfer of assets to the trust name. When you transfer assets to your trust, or when the trustee buys and sells various assets owned by the trust, the third parties with whom you will be dealing will need verification that your trust exists and that the trustee has the authority to act on behalf of the trust. If you prefer not to provide an entire copy of the trust agreement, as you may not want other people to be able to read the provisions of your private trust document, you may instead provide a copy of the Certificate of Trust.

The Certificate of Trust is an abbreviated version of your trust that includes the specific information about your trust that the third parties will want to see. The Certificate of Trust enables you to avoid disclosing the particulars of your estate plan by disclosing only the necessary information. You may find that you will be using your Certificate of Trust repeatedly over time as trust assets are bought and sold.

Note, however, some financial institutions may not accept the Certificate of Trust; rather, they will want to see a copy of the entire trust agreement. In this case, you can ask if they will accept only the relevant parts of the trust to transfer the asset to the trust.

Real Estate

A deed is required to convey interests in real estate to your revocable trust. In the future, should you acquire any additional real estate, you should purchase and title such real estate in the name of your revocable trust. You should obtain the assistance of an out-of-state attorney to transfer any non-Florida real estate into your revocable trust.

All non-homestead and homestead real estate can be placed in the revocable trust. Importantly, if you transfer your homestead to your revocable trust, you must reapply for the homestead tax exemption after your property has been transferred to your trust. The property appraiser’s office in the county where your homestead is located will need a copy of your trust or your Certificate of Trust to prove that you are entitled to the homestead tax exemption.

Bank, Savings and Other Financial Accounts

It is important to change the name on each bank, brokerage, and money market account that you wish to be owned by the revocable trust. Each financial institution holding an account should be contacted to change the current owner of the account to the trust. If the bank allows, you will be able to keep the same account numbers on your accounts.

The financial institution will want to see a copy of your trust or the Certificate of Trust to verify the trust exists. It is recommended that after the name change takes place, you check your account statements to ensure they reflect the name of the trust as the account owner.

If you have a safe deposit box, you may want to change the registration to your revocable trust. This can avoid a probate proceeding following death which may otherwise be required to open the box if the deceased is the only authorized name on the box.

Trust Funding: General

Trust Funding: General

When creating a revocable trust, it is important to understand how to transfer assets to your trust. We call this process “trust funding”. To obtain the benefits of probate avoidance and the other benefits of having a trust, it is very important that the trust be properly funded during your lifetime. You should transfer your property to the trust as soon as possible. It is recommended that you begin the trust funding process as soon as your trust has been signed. If you unexpectedly pass away and assets have not been transferred to your trust, you may be required to initiate the probate process.

Note, however, before transferring ownership or changing beneficiary designations of any retirement accounts or annuities to your trust, please contact a tax professional regarding tax consequences that might result. Even though your retirement accounts and annuities may not be owned by the trust, probate can still be avoided as long as there are designated beneficiaries on these accounts. These beneficiaries typically coordinate with your trust.

All transfers of ownership must be accomplished by executing appropriate instruments of transfer to be effective for state law purposes. For example, real estate should be transferred to the trust by a deed, bank accounts should be transferred to the trust by changing the name on the accounts, and stock certificates not in “street name” should be transferred to the trust by issuing a new certificate in the name of the trust. It is important to ask your attorney if you have questions on the appropriate way to retitle your assets.

When funding your trust, assets that are intended to be owned by a trust can be styled in several different ways. When possible, choose a styling that contains as much information as possible to include the trustee of the trust, the name of the trust, and the date of the trust. You don’t want there to be any confusion as to the intended owner of the asset.

While you are living, your revocable trust is designed to be a pass-through entity for tax purposes. Therefore, all income and expenses will be taxed to you. As such, you can use your social security number as the tax identification number of the revocable trust while you are alive. You can report trust income on your individual or joint income tax return, and no trust tax return will need to be filed while you are living.

Family Guardian vs. Professional Guardian

Family Guardian vs. Professional Guardian

As the names indicate, a family guardian is usually a member of the family or a close friend of the person with incapacity. A professional guardian is a fiduciary who cares for 3 or more wards and is subjected to a Federal Bureau of Investigation (FBI) fingerprint background check, Florida Department of Law Enforcement (FDLE) background check, credit check, and an extensive 40-hour training course.

The court will first look to the possibility of a family guardian. A professional guardian is very useful when the ward has no family available or willing to become a guardian. Likewise, a professional guardian can step in when guardianship is contested, and family members cannot agree who should be a guardian.

How is the level of Guardianship determined? 

In general, there are 2 types of adult guardianship in Florida: limited and plenary. Limited guardianships permit the guardian to make only certain decisions on behalf of the ward. For example, a person who has the capacity, but failing eyesight, may need assistance writing checks and managing their money. In addition, you can be a limited guardian of the person, or a limited guardian of the property, depending on the individual circumstances.

Plenary (or full) guardians have complete personal and fiduciary control of the ward’s life decisions. The guardian has fiduciary and other important responsibilities to the ward, which means he or she is responsible for diligently and responsibly making decisions about the ward’s person, property, or both. Part of this responsibility involves inventorying the ward’s property and drafting reports for the court on at least an annual basis (more often if requested by an interested person or the court itself).

Once the petition for guardianship is filed, the court appoints an examination committee to perform a physical examination, a mental health examination, and a functional assessment. If the majority of the examining committee members conclude that the alleged incapacitated person is not incapacitated in any respect, the judge is required to dismiss the petition. If the examining committee finds the person is unable to exercise certain rights, however, the court schedules a hearing to determine whether the person is totally or partially incapacitated. If a person is found to be incapacitated in any respect, a guardian is appointed at the end of the incapacity hearing unless there are less restrictive alternatives to guardianship that adequately address the person’s incapacity.

When is it necessary to file for a Guardianship?

That is a question best answered on a case-by-case basis. Most commonly, guardianship is a consideration for a person suffering from dementia or injury. But, a minor could also need a guardian, if the parents die or become incapacitated, or if the child receives money in excess of $15,000.

The Courts view guardianship as the last resort, as it is so restrictive. But, it can be necessary to file for guardianship if a person does not have documents in place nominating someone to help exercise some or all of the legal rights of an incapacitated person. Those documents, known as advanced directives, include a durable power of attorney, health care surrogate and living will, and a preneed naming of a guardian.

Sometimes, though, even with those documents in place, guardianship may be necessary if the person is a threat to their own safety or perhaps financial loss is an issue. For example, if you are concerned that your parent, who has dementia, may execute another durable power of attorney naming someone your parent just met, you may need guardianship.

UNDERSTANDING KEY TERMS: The difference between Guardianship, Power of Attorney, and Case Manager

Before you can understand these important differences, you need to know what they mean. A Guardianship is a legal proceeding in which one person, called a guardian, is court-appointed to exercise some or all of the legal rights of an incapacitated person, known as a Ward, per Chapter 744, Florida Statutes. The guardian then has full decision-making authority in the areas deemed appropriate by the court (person, property, or both), relinquishing decision-making authority from the ward.

A Durable Power of Attorney is a very powerful legal document in which you give legal authority to a person of your choosing to help with your legal and financial affairs. In the document, the maker of the power of attorney (the “principal”) grants the right to act on the maker’s behalf as that person’s agent. This document does not relinquish decision-making of the principal, rather adds someone to be able to make decisions on their behalf, in addition to themselves, unless the principal is later deemed incapacitated. While the powers granted can be similar to that of a Guardian, this document must be executed by someone with the capacity to make decisions, whereas a Guardianship is deemed appropriate by a court if and when the person no longer has the ability to make appropriate decisions for themselves. 

The important difference is, with the Durable Power of Attorney you are making the choice of who you want to help you when you need that help. A guardianship is when the Court orders someone, who may not necessarily be someone of your choice, to manage your legal, financial, and medical affairs. 

Case Management can provide assistance in the way of assessing daily needs, planning and coordinating services for those needs, and monitoring service delivery. A case manager can be your extended arm in matters affecting your daily life, connecting you to professionals for healthcare, legal and financial assistance, housing, transportation, meals, and more. Their purpose is to assist in managing everyday life without being a decision-making authority. 

A case manager can be hired by the individual, their power of attorney, or their guardian to assist. In many cases, the power of attorney or guardian is at a geographical distance and needs someone to provide hands and eyes-on assistance.

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