The time may come when a parent or spouse is no longer able to make decisions or care for themselves. Most parents and spouses will not alert family members of their diminished capacity. What happens when a parent or spouse is lacking capacity, but does not want help or refuses to accept that assistance is necessary?
Here is an example of how a family can get a Florida guardianship of an incapacitated loved one: Ruth was 76 years old and had recently lost her husband to prostate cancer. Ruth’s son and daughter were worried about their mother, as she had been acting a bit different after their father’s passing. Ruth’s children thought that their mother was simply grieving and needed their love and patience. As time passed Ruth’s behavior did not improve and her children started to worry. Ruth began roaming the neighborhood at odd hours and needed assistance from community members to find her way back home. When Ruth’s children inquired with their mother as to her health and state of mind Ruth would simply say, “I am just fine.” A short time later Ruth started a small fire in her kitchen and her house alarm system sent the fire department over to her home. On another occasion Ruth visited the bank and made a very large withdrawal from her savings account. Ruth’s son asked his mother what she had done with the money in her savings account. Ruth could not recall what she had done with the funds. In fact, Ruth did not even remember visiting the bank. Ruth’s children were now aware that their mother was not getting better and that they were going to have to do something to help. Ruth continued to refuse assistance and maintained that she did not need any help.
Ruth’s children will unfortunately need to sue their mother so that a legal determination can be made as to her capacity. Any adult in Florida can file a petition with a court to determine another’s incapacity in what is known as a guardianship proceeding. A court would appoint a 3-member examining committee that would review and report on the alleged incapacity. The court would also appoint an attorney to represent the alleged incapacitated person if that person had not engaged their own attorney. The court supervised guardianship proceeding would continue from this point so that the court may determine whether the alleged incapacitated person is in fact totally or partially incapacitated under Florida law. Should the court find a person to be incapacitated and a guardianship warranted, the court would next need to appoint the appropriate guardian(s).
Prior to her decline, Ruth had options that could have lessened or even avoided many of the above-described headaches; She certainly would have preferred to avoid the stress, time, expense, and public nature of a court-supervised guardianship proceeding. Effective planning tools like a durable power of attorney, living trust, and pre-need guardianship designation could have saved Ruth and her family from a great deal of stress during an already difficult and emotional time in their lives.
A Florida durable power of attorney allows a person to act on another person’s behalf regardless of the latter’s capacity. The power of attorney is effective immediately upon signing, so it is extremely important to choose a trusted individual to act under such power. A living or revocable trust allows a person to name a successor manager of their assets should they become incapacitated. A designation of pre-need guardian allows a person to elect who will serve as their guardian(s) should a court ever determine that a guardianship is necessary.
There is no such thing as too early when it comes to planning for the unexpected. Simple and effective estate planning allows a person to answer the question of what will happen if I am unable to care for myself. A thoughtful plan can also provide direction and simplicity to loved-ones, ultimately working to prevent the unsavory lawsuit against Mom. If you are interested in learning more about Florida durable power of attorney or a Florida guardianship, please contact our estate planning or guardianship teams.
Florida estate plans today are highly detailed regarding what happens when one passes-away or becomes incapacitated. However, most Florida residents who take the time to do this type of detailed planning still fail to address what will happen to a very important family member. Pets are valued family members who are routinely left out of one’s estate plan.
Prior to 2002, Florida law only allowed honorary pet trusts, which sounded nice but did nothing to protect the deceased’s wishes for their furry (or feathered) friends. These honorary trusts were essentially unenforceable by Florida courts. Florida changed this law in 2002; as such, Florida residents are now free to create an enforceable trust for the care and maintenance of their beloved pet(s).
Florida’s pet trust law has three main provisions (F.S. §736.0408):
The trust must benefit a pet that is alive during the lifetime of the one creating the trust, and the trust only operates until the death of the last surviving pet beneficiary.
The terms of the trust may be enforced by:
A person appointed by the creator of the trust;
If no person was appointed, then by a person appointed by the court.
Any person that has an interest in the welfare of the pet(s) may request the court to appoint a person to enforce the trust or to remove a person already appointed.
If the value of the trust exceeds the amount needed to care for the pet(s), except as otherwise provided in the terms of the trust itself, the excess must be distributed to the creator of the trust, if living, otherwise as part of the trust creator’s estate.
The trusted individual(s) or organization(s) that one may choose to be responsible for the health, maintenance, and financial needs of their loyal companion(s) when they are gone is of utmost importance and should be carefully considered. To avoid any conflicts, the person or legal entity that is chosen as a pet care-giver should be a different party than the one who is acting as trustee and administering assets from the trust to the pet caregiver.
Many planners may question their need for a pet trust as they think that their pet will simply be cared for by a friend or relative. However, the main purpose behind estate planning is to account for the unexpected or unknown. Hopes and assumptions never make good replacements for estate plans and can leave beloved pets without a home or proper care.
Florida residents who would like to plan for the care of their pet(s) should decide whether they want to create and fund their pet trust while they are living or if they would like the trust to begin upon their death by way of direction through their own last will and testament or grantor trust.
Florida law at long last provides residents with enforceable means to care for their pet(s) when they are either gone or incapacitated. While the law is unique, it is a great tool to ensure that pets are respected in the manner that their families desire.
Florida is home to several residents who have either permanently relocated from another state or have become seasonal “snowbirds.” A common question asked to a Florida estate planning attorney is, “how will our out-of-state will and other estate documents be treated in Florida?” Each state has its own laws regarding death and estate planning and it is important to consider how one jurisdiction respects the plans made in another jurisdiction.
Tom and Rita were residents of Washington, D.C. when they had their wills prepared; they have since relocated to sunny Florida where they enjoy retirement and their days on the golf course. Tom and Rita inquired with a Florida attorney if the wills that their attorney had prepared in Washington, D.C. will be valid here in Florida. The couple has two adult children who are both successful in business, but not so much in love; both children have strained marriages. Tom and Rita have already established a long-term trust for their adult children to protect each child’s inheritance against any potential divorcing spousal claims. Tom and Rita would like to leave their Florida home to their niece after they have both passed; they have asked if their Washington, D.C. documents accomplish this goal. Although the Florida attorney is also licensed in Washington, D.C. and Florida, the attorney knows that the estate planning documents need to be reviewed solely under Florida law to answer the couples’ question.
Tom and Rita currently reside in a beautiful home in Central Florida. Rita owned the home prior to her marriage to Tom and the property was titled in only Rita’s name. Rita provided her Florida attorney with a copy of her will from Washington, D.C. which stated, in part: “I currently own residential real estate located in Florida, specifically, 123 New York St., DeLand, FL 32724 (the “Florida Residence”). If I own this home at my death, the ownership thereof, together with all personal assets located therein, shall be distributed to my niece, Hillary, if she survives me.” The first problem, other than the lack of legal description for the real property, is the will does not account for Tom; or does it? Pursuant to Florida law, Tom gets a life estate in the Florida home and Rita’s children have a vested remainder interest. Rita’s plan has failed under Florida law; niece Hillary will not receive the home despite the D.C. will.
The D.C. wills had other problems in Florida, e.g., Tom and Rita both named their long-time, trusted family lawyer in Washington, D.C. to be Personal Representative in their wills. A Personal Representative in Florida is an individual who is named by the deceased and confirmed by the court to handle the administration of the last will and testament through a probate proceeding. Unfortunately, many out-of-state practitioners mistakenly believe that they can be named, and act, as a Personal Representative for clients who have relocated to Florida. The law in Florida provides very specific direction on who can and cannot serve as a Personal Representative. Out-of-state attorneys or financial advisors who are not related to the deceased cannot serve. Tom and Rita have failed to name a valid personal representative under Florida law.
Tom and Rita still had other problems with their D.C. wills and ancillary planning documents (living wills, durable powers of attorney, preneed guardianship designations, etc.). The couple is well advised to update their planning documents to be compliant and effective in the Sunshine State. Estate planning should be done early and often; relocating to a new state is a perfect reason and opportunity to have your planning documents reviewed. If you have relocated from another jurisdiction or if you are interested in learning more about what relocation could mean for your estate planning documents, please contact our estate planning team.
A common misconception about Medicaid is that an individual must lose their assets in order to become eligible for benefits. At ShuffieldLowman, we can provide you with planning strategies and options to help you preserve your assets while gaining Medicaid eligibility. Watch as elder law attorney, Alyse Verner, discusses misconceptions about Medicaid and how an attorney can help your family maximize the government benefits available to you.