According to Florida law, nursing homes, hospices, hospitals and some insurance organizations are legally required to provide consumers with a written summary of their legal rights to create advance health care directives.

A living will is an instrument you create while you are still alive and well enough to make those decisions. You may want to create one in addition to drafting a document appointing your health care surrogate.

Once you create a living will, you should give a copy of it to the person that you appoint as your health care surrogate if you appointed one. The surrogate has the legal ability to make decisions on your behalf regarding any medical treatments if you become incapable of making them. If you want to designate a health care surrogate, you should do that in writing. Like a living will, you must sign your surrogate document in front of two witnesses, one of which is not a spouse or a relative. Your surrogate is not able to serve as a witness to your document.

It is your legal responsibility to notify your physicians of your living will. Once you give your physician a copy of it, he must place it in your medical file for future reference.

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

A Living Will is a written document that allows you to make advance decisions regarding life-sustaining or prolonging medical treatments. A valid living will must contain certain information as outlined in Section 765.303 of the Florida Statutes. Also known as Health Care Advance Directives, Living Wills are completely different from legal wills.

A legal will allows a person to decide who inherits his personal and real property. A living will or health care advance directive, on the other hand, is a written document that allows a person to make decisions regarding his own health upon physical or mental incapacity.

A valid living will must be in writing and signed by the person creating it in front of at least two witnesses. At least one of the witnesses must be unrelated to the person creating it and must not be a spouse. If the person creating a living will is physically unable to sign his document, he may direct another individual to sign it on his behalf. The third party signing a living will on the drafter’s behalf must sign it for the drafter in his physical presence. Finally, to create a living will, an individual must be mentally competent at the time he signs it.

Note that a living will created in another state is valid in Florida if it was valid in the other state. In other words, similar to a legal will, a living will created outside of Florida is enforceable in Florida if it complies with the other state’s laws.

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

In most states, including Florida, individuals can appoint third parties to make decisions for them if they become mentally incapacitated or otherwise too ill to make decisions regarding their medical care.

In Florida, residents can use several different types of forms or documents that allow others to help them make decisions for them. Before using any of these forms, you should contact our office or another experienced estate planning attorney to help you determine whether or not they would be suitable for your individual needs.

You may use a Health Care Surrogate Designation form to appoint a mentally competent adult to make decisions on your behalf regarding medical treatments and health care decisions if you become mentally unable to make them. If you become well, your designation form is no longer valid, since you can make your own medical decisions. A Health Care Surrogate Designation document is similar to a living will but serves different purposes. In the next two blogs, we will cover the definitions of both and the differences between them.

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

If you’re the parent of a child with autism, you’re not alone. It’s estimated that one out of every  110 children, and one out of every 70 boys, has some form of autism. You’re familiar with the day-to-day challenges and rewards of bringing up a child with this condition, but what would happen to your child if you were no longer in the picture?

It’s something no parent wants to think about, but for parents of kids with autism or other special needs, planning for the unthinkable is incredibly important. First, there’s your child’s emotional well-being to consider; if you pass away without nominating a guardian for your child, that decision could be left up to a judge.  This is not the ideal scenario for any child, but it can be especially detrimental to pair an autistic child with a guardian who is not familiar with the condition and who does not know the child. This is why you should hand-pick a guardian who knows your child and who you’re convinced would do the best possible job of providing care in the event of your death.

Aside from the emotional concerns, there are significant financial concerns when it comes to children with special needs. For instance, it’s important to ensure that your child’s medical and therapeutic needs will be provided for even after you’re gone. However, the manner in which you leave your child an inheritance can have a huge impact on his or her quality of life. If your child receives SSI, Medicaid, or other government-funded benefits, leaving more than just a minimal amount of money or assets directly to your child can disqualify him or her from those benefits until the inheritance is used up. This can wreak havoc on your child’s lifestyle at an already difficult and stressful time. One solution to this problem is to establish a special needs trust for your child, rather than simply leaving a direct inheritance.

Making sure your autistic child is protected and provided for, even in the face of unexpected circumstances, can seem like an overwhelming task. Fortunately, you don’t have to figure it out on your own.  An experienced estate planning attorney can explain all your options and help you put together an estate plan that will work when it’s needed.

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

Imagine you have a loved one – your daughter, for instance – who has special needs. And, imagine your loved one gets government benefits, like Medicaid, to help cover the cost of her care. These benefits don’t generally put money in your daughter’s pocket. Instead, in most instances, they are paid directly to the professionals who provide services to your daughter. You, as your daughter’s parent, provide all the additional support (financial and otherwise) that enhances your daughter’s quality of life and ensures that she does not live in poverty, with only her basic needs met.

Now, imagine what would happen if you passed away and left an inheritance directly to your daughter. Even a modest inheritance would disqualify her for the government benefits that pay for her basic care. She would need to exhaust her inheritance before she could once again qualify for benefits. But with you gone, there would be no inheritance left and no one to provide all the extra support that you provided during your lifetime. Your daughter could very well face a life where only her basic needs were taken care of.

This is why, instead of leaving an inheritance directly to a loved one with special needs, it’s a good idea to establish a special needs trust for that person. Once a special needs trust is set up, you put your loved one’s inheritance in the trust, which is irrevocable. Instead of being paid directly to your loved one, the inheritance is managed by a trustee, who follows strict rules in using trust funds to supplement your loved one’s income and lifestyle. This way, your loved one continues to have access to government benefits, but can enjoy the same quality of life after your death as he or she did during your lifetime.

In order to be effective, a special needs trust has to be established and managed in compliance with some very stringent rules. If you’re considering a special needs trust, you’ll want to enlist the help of an experienced estate planning attorney to make sure that you don’t run afoul of these rules.

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

The trustee of a Special Needs Trust occupies an extremely important role. He or she is in charge of all the ordinary duties carried out by any other trustee, including:

• Managing and investing the trust assets on behalf of the beneficiaries of the trust;
• Keeping the books and records for the trust;
• Reporting to the IRS as appropriate; and
• Maintaining communication with the beneficiaries of the trust and distributing the trust income and/or principal for their benefit.

But, because a Special Needs Trust is established for the purpose of preserving a beneficiary’s public benefits, the trustee has the added responsibilities of:

• Understanding the rules for the SSI and Medicaid programs, and ensuring that the distributions made by the trust do not jeopardize any public benefits;
• Reporting to and cooperating with the agencies that administer the beneficiary’s public benefits;
• Paying close attention to the special needs of the beneficiary, and looking after the beneficiary’s welfare; and
• Working closely with the others involved in the beneficiary’s life, such as family members, social workers, caregivers, and teachers, to ensure that the beneficiary’s needs are met.

The trustee of a Special Needs Trust has to develop a level of expertise, both about the rules for what kinds of trust distributions are and aren’t allowed, and about the details of the beneficiary’s life.

For example, the trustee needs to know what counts as a “food and shelter” distribution, and avoid making this type of distribution, since these affect SSI benefits. And, the trustee needs to know the limits for making direct distributions to a beneficiary – otherwise, benefits can be reduced.

The rules surrounding public benefits programs can create a minefield for a trustee to navigate. Because of this, many trustees seek guidance from a professional, such as an attorney with Special Needs Trust experience, in administering the trust.

Recognizing the challenges that come with this type of trust, many families choose to select a professional trustee, like a bank, trust company, attorney, or an appropriate nonprofit organization.

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