Estate planning involves a number of strategies for protecting yourself and your loved ones. Have you taken advantage of these asset protection opportunities?

• Medicaid Planning: America is facing an enormous demographic shift. As baby boomers continue to age, an increasing percentage of the population will need long-term care – a prohibitively expensive proposition. One strategy for dealing with this is to make sure you carry a combination of adequate health and long-term care insurance. Another strategy is to build provisions into your trust, called “Medicaid triggers”, that let your successor trustee engage in Medicaid planning on your behalf in case you become disabled.
• Special Needs Planning:  When you have a child, grandchild, or other beneficiary with special needs who depends on government benefits, a direct inheritance can deprive that beneficiary of those government benefits. A special needs trust protects your loved one’s benefits while at the same time maintaining their quality of life.
• Asset Protection for Beneficiaries: It is all too easy to fail to protect the inheritances of children and grandchildren. When an inheritance is left outright to a child or grandchild, instead of being shielded in a trust, that inheritance is vulnerable to a laundry list of threats. It is susceptible to creditors, to divorce settlements, to lawsuits, and even to simple poor decision-making on the part of the beneficiary. Leaving an inheritance in a properly established trust can keep it shielded from unwanted threats.

Asset protection is an important, but sometimes overlooked, aspect of estate planning. Your estate planning attorney can help to ensure that you and your loved ones are protected.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

Choosing someone to serve as your attorney-in-fact (also called your agent) pursuant to your Power of Attorney can be a daunting task. This is especially true if you’re a parent who has to choose between children. It may seem like the simplest solution is to name two people to serve simultaneously as attorney-in-fact. While you can do this, it’s usually not a great idea.

Although naming two agents can help to avoid putting the entire burden of managing your finances on a single person, it can also stall the management of your affairs, and land your loved ones in court.

What happens if the co-agents you’ve appointed have a disagreement they can’t resolve? Not only does such a disagreement cause stress for your co-agents, as well as a potential division in your family, it also means that their attention becomes focused on the disagreement, and it can lead to important responsibilities falling through the cracks.  Plus, the final resolution to these kinds of disagreements often happens in court, and avoiding court is one of the reasons for making a Power of Attorney in the first place.

If you are considering appointing two loved ones to serve simultaneously as your attorneys-in-fact, talk to your estate planning attorney. He or she can help you explore all of your options, and settle on the approach that’s right for you and your family.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

An estate planning attorney’s office is the last place you’ll find most college kids, but when your child turns 18, this is one meeting you need to schedule. Why? Because once your child reaches age 18, you no longer have the legal authority to make medical decisions on her behalf, nor are you automatically authorized to manage her finances.

While your child is likely grateful for this independence, what would happen if she were in a car accident and suffered a debilitating injury? Before you could communicate with her doctors, make decisions concerning medical procedures, or access her bank account to make sure that her bills were paid, you’d have to go to court and be appointed her guardian or conservator.

A visit to an estate planning attorney can help prevent this unpleasant scenario, and make sure you have the power to step in and make decisions on your college student’s behalf if she ever faces a situation where she can’t make decisions for herself. This is done through an incapacity plan, a set of documents that pre-authorizes you to take certain actions on behalf of your child. An incapacity plan generally includes the following documents:

• A Medical Power of Attorney: This is a document with which your child names you as her agent for purposes of making health care decisions. With a Medical Power of Attorney in place, you have the power to direct your child’s care in the event of a debilitating injury or illness.
• A HIPAA Authorization: This is a document that permits your child’s doctors to communicate with you concerning her medical records and medical care. Absent a HIPAA Authorization, you can be faced with a number of hoops to jump through before you can talk to your child’s doctors.
• A Financial Power of Attorney: This is a document that pre-authorizes you to access your child’s bank accounts, pay bills on her behalf, and even apply for government benefits on your child’s behalf, if the need arises.

Your estate planning attorney can help your child prepare for an emergency, and ensure that you have the power to be there for her if she needs you.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

A Living Will is an indispensable estate planning tool, but it covers limited circumstances. In Florida, a Living Will is used to direct your health care provider concerning what life-prolonging medical treatments or procedures should be used or withdrawn if you are in a persistent vegetative state or death is imminent and you’re not capable of directing your own health care.

A Living Will can’t be used for other purposes, like directing your healthcare provider to use or withdraw medication or procedures to alleviate pain or provide you with comfort care. This is why, in addition to a Living Will, you should have a Durable Power of Attorney for Healthcare. This is an equally indispensable planning tool, and it lets you name a trusted loved one or friend to communicate with your doctors and direct your health care in situations where you’re unable to communicate for yourself.

As with any other legal document, Florida law is quite specific when it comes to the requirements for establishing a valid Living Will or Durable Power of Attorney for Healthcare. This is why you’ll want to get the help of an experienced estate planning attorney in creating these documents.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

A Power of Attorney, like a Trust, does not need to be registered or recorded in the public records in order to be effective. It does have to be in writing, signed, witnessed and notarized. However, once your agent is appointed via a valid Power of Attorney, he or she simply has to present the document at the institution where business is to be transacted on your behalf.

For instance, if your agent needs access to your bank account in order to pay bills on your behalf, he or she will take the Power of Attorney to the appropriate bank to prove that you have authorized such access.

In many situations, a Financial Power of Attorney will authorize an agent to sell property on behalf of the principal (the person who made the Power of Attorney). In this situation, the agent will sign the property deed on behalf of the principal, and the Power of Attorney will be recorded in the appropriate real estate records, along with the deed. However, this is done to show that the agent did, in fact, have authority to sign the deed. Recording the Power of Attorney in this manner does not affect the validity of the document.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

Sometimes it seems like you need to learn a whole new vocabulary in order to understand your estate plan. One term you hear frequently in the context of estate planning is “fiduciary.” Do you know exactly what it means?

A fiduciary is a person or an entity (like a business or an association) that manages assets or holds power on behalf of and for the benefit of another person. A fiduciary has the legal authority to act on behalf of another person, and with that authority comes a duty to act with loyalty and in good faith in representing that person’s interests. 

When it comes to making an estate plan, you’ll need to appoint several different fiduciaries, including:

•  Executor/Personal Representative: This person is responsible for administering your estate in accordance with the terms of your Will and in compliance with state law. Florida law has specific provisions limiting who can serve as your Personal Representative/Executor.
• Trustee: If your estate plan includes a Living Trust, you’ll serve as initial Trustee. However, you’ll appoint a Successor Trustee to manage the trust in the event of your disability and to administer it upon your death. Your Trustee must follow your instructions in managing the assets of your Trust.
• Guardian of Minor Children: If you’re the parent of young children, you’ll appoint a Guardian to care for them in the event that your children are orphaned before they reach adulthood.
• Attorney In Fact: You’ll use a Durable Financial Power of Attorney to name an Attorney in Fact, or agent, to manage your finances in the event of your disability.
• Health Care Agent: You’ll use a Durable Power of Attorney for Healthcare to name a Health Care Agent to make medical decisions on your behalf in case of your disability.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

If you sign a Durable Financial Power of Attorney naming someone as your agent, at what point does that person’s authority to make financial decisions on your behalf end? 

1. Revocation.  Assuming you are mentally competent, you have the power to revoke your Power of Attorney at any time. Once you do this, your agent no longer has the authority to act under the powers granted in the document, and can be held liable if he or she knowingly attempts to do so.
2. Termination by a Court. Very occasionally, a court will revoke an agent’s authority to act under a Power of Attorney. Generally, this only happens in situations where the agent is proven to have seriously abused his or her authority.
3. When No Agent is Available to Serve.  If you name an agent who passes away before you, or who chooses not to accept his or her role under your Power of Attorney, and no alternate agent is named, then your Power of Attorney is not a valid document. Naming an alternate can help avoid this situation.
4. Death.  When you pass away, your Power of Attorney is automatically revoked. The power to pay your bills, manage your property, and take other such important actions passes to the personal representative of your estate or to the successor trustee of your Revocable Living Trust. 

Under Florida law, divorce does not automatically revoke a Power of Attorney. So if you’ve named your spouse as your agent, and the two of you subsequently divorce, you’ll want to meet with your estate planning attorney to revoke your existing Power of Attorney and designate a new agent. Otherwise, your former spouse could retain broad access to your financial affairs.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

If you’re a partner in a same-sex couple here in Florida, you know that if one partner becomes ill or passes away, the life you’ve worked to build together could be in jeopardy. Florida law doesn’t contain any default provisions that let unmarried partners inherit from each other. Similarly, Florida law does not contain any default provisions that allow one unmarried partner to make medical or financial decisions for an incapacitated partner.

Fortunately, with a comprehensive and effective estate plan, you and your partner can leave your property to each other(or to anyone you choose), and designate each other to take over financial and medical decision making in case of debilitating illness or injury. Here’s an overview:

1. Inheritance. Your estate planning attorney can help you establish a plan to make sure your property goes to the people and organizations of your choosing, and in the manner you choose. You have a variety of options for accomplishing your estate planning goals, including:

• A Will
• A Revocable Living Trust
• Joint Tenancy With Rights of Survivorship
• Pay on Death designations
• Beneficiary Designations for Life Insurance and Retirement/Investment Accounts

2. Control of Finances In Case of Disability. If you’re incapacitated to the point that you can no longer manage your own property or finances, who do you want to take charge of these things for you? If it’s your partner, then you’ll need a Durable Financial Power of Attorney. With this document, you can designate an agent to take over your financial affairs for you if you’re ever unable to handle this part of your life on your own. And this is true even if you have a Revocable Living Trust; your estate planning attorney can explain why.

3. Hospital Visitation and Healthcare Decision Making. With a Health Care Surrogate Designation, you can appoint your partner to make medical decisions on your behalf if you lose the capacity to make informed decisions on your own. So, if you’re terminally ill and in the hospital, your partner can have access to you and your doctors, and he or she can speak on your behalf.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

As you get ready to make a Revocable Living Trust, there are certain things you’ll want to consider. Here are a few of the things you and your estate planning attorney will discuss:

1. Will you use individual trusts or shared trusts? Obviously, if you’re single, you’ll need an individual trust. And, most married couples opt for a shared trust. But, what about domestic partners or cohabiting couples? Your estate planning attorney can help you decide which option is best for you.
2. Who will serve as your successor trustee? You will be initial trustee of your own revocable living trust. But, who will be trustee when you pass away? Especially if you have an individual trust, this is an incredibly important decision. You’ll want to choose someone who’s trustworthy, capable, financially savvy and willing to take on the job. Make sure you check with your successor trustee before you put your trust in writing.
3. Who will serve as your disability trustee? Your revocable living trust can be an invaluable part of your disability plan. If you ever suffer an injury or illness that leaves you unable to take care of yourself, your disability trustee can step in and take over the management of your trust property. He or she will likely be the same person as your successor trustee. If they’re not the same person, they’ll need to have the same qualities.
4. Consider what property you’ll transfer into your trust. You’ll need to think about what property you want to transfer into your trust. This is the property you’ll want to keep out of probate when you pass away, and it’s the property you’ll want your disability trustee to have access to if you’re ever incapacitated. Your estate planning attorney will help you figure out which property needs to go into your trust, and will let you know how to transfer it.
5. Who are the ultimate beneficiaries of the trust? You’ll want to have an idea of where you want your property to go after you pass away. Who should get what, and in what shares? Do you want your property to go to your children, your grandchildren, your favorite charities? Do you want your property to be distributed immediately upon your death, or held in trust for all or part of your beneficiaries’ lifetimes?

Your estate planning attorney can help you with all of this and more.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

One of the main goals in having a Power of Attorney is to allow your agent (also called your attorney-in-fact) to fully manage your finances in the event that you develop Alzheimer’s disease, have a stroke, or otherwise become mentally incapacitated. If this happens, you want your agent to be able to step in and take over your financial accounts and your investments. For most people, this includes the management of a 401(k) or other retirement account.

But, did you know that there’s special language that has to be contained in a Power of Attorney before your agent can access and manage your retirement account? And, if your Power of Attorney does not contain the appropriate language, your family might have to go to court to get access to your retirement account if you become mentally incapacitated.

So, if you have a Power of Attorney, you’ll want to take a look at it to make sure it allows your agent to manage your retirement account. If you’re not sure about this, you can have your estate planning attorney check for you.

If you don’t yet have a Power of Attorney, you’ll want to make sure your estate planning attorney includes the appropriate language. And, you can check with your retirement plan manager. Many plans have their own Power of Attorney forms. If your plan is one of them, you can sign this form and keep it with the rest of your estate planning documents, just to be on the safe side.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.