Video Summary

Special needs planning for people with disabilities. Did you know that ten percent of the families in America have a family member who is disabled as defined by federal regulations? This can be a minor child who suffered malpractice at birth. It can also be an adult who has been injured in a traffic accident or an industrial accident. It can even be a senior citizen who has suffered neglect in a nursing home and incurred serious injuries as a result of the neglect.

If this describes anyone in your family, we at Waller & Mitchell can help you. There are federal and state programs designed to assist individuals with these kinds of injuries and require special care and assistance. These programs are all means tested. That means that you cannot have more than a certain amount of money in order to qualify for assistance through these programs.

When these types of injuries happen to someone, typically there is a lawsuit filed on behalf of the injured party, and this lawsuit can result in hundreds of thousands, or even in some cases millions of dollars, that are made available to that person.

Now, at first glance this may seem good. But, the problem really can be two-fold. First, that money has to last for the entire lifetime of the individual. Second, if they receive that money in their individual names, they will be disqualified from public assistance benefits because of this specifically mentioned means test.

There is, however, a special kind of trust authorized under federal law that is called a Special Needs Trust. In a Special Needs Trust, the money from the lawsuit settlement can be deposited into the trust and a trustee can be named and then the trustee can pay the special needs of the individual. The public benefits are still qualified for the individual, and they will pick up the basic nursing care and medical care of the individual.

Governmental and social assistance programs should be preserved not only for the funds that they provide, but also because they allow essential strong and ongoing social services, counseling, housing, support mechanisms, and other help to the disabled individual.

What this allows for is that the special needs of the individual can be met with such things as:  advanced medical care, special caregiver services, education, and even entertainment. Any of these things would qualify under a properly drafted Special Needs Trust. In addition, with a Special Needs Trust, you can have a trust that is set up by a third party; for example, a grandparent who has a disabled grandchild. In that circumstance, the grandparent sets up the trust, puts the money into the trust, and then the trustee administers the trust for the benefit of the disabled grandchild. The disabled individual continues to receive their public benefits, so there is no problem with the money being diverted or expended unnecessarily.

The good thing about the third-party trust is that after the death of the beneficiary – the disabled grandchild – the original person who set up the trust can designate in the trust where the money is to go if there is anything that remains in the trust.

If you are interested in any of these concepts, please give me a call here at Waller & Mitchell. Our phone number is 727-847-2288, and we would love to assist you with all of your needs.

Video Summary

How is estate planning I do while I live in Florida impacted when I move to another state?

Well, that’s a question that you’re gonna have to ask the out-of-state lawyer, whenever you move. It’s my recommendation that if you move to another state, that you consult with a lawyer in whatever state you become a resident, and ask him to review your estate planning documents. That’s something that I do routinely.

And then I get asked, the other question is, “Are my estate planning documents from Illinois, or some other state, valid in the state of Florida?” Most of the time, I look at those and say, “Well, the will would probably be effective. However, for me to review it and confirm that the aspects of the self-proving aspects, and also the personal representative, would be sufficient and Florida would have it admitted to probate, it would be easier in most circumstances just to do a new Florida will, particularly if there are any circumstances that have changed.”

Usually, a will that has been properly executed in another state is effective in Florida. However, you may want to modify it to Florida law, in order for the ease of administration when you pass away, and if it has to be admitted to probate. It is a good idea, though, to talk to an attorney in whatever state you reside, to have him review your estate planning documents.

Florida is peculiar in that we require the personal representative to either be a relative or a resident of the state of Florida, to serve as a personal representative, which may not be the case in your old document. There may be other laws that are peculiar to whatever state you move to, so that lawyer could tell you about that.

Also, we have different powers of attorney and how they must be executed, in Florida. Under a Florida power of attorney, we like to have two witnesses, so that we can use it to convey real property. Also, living wills and healthcare surrogates.

So, the short answer to the question is, consult with whatever attorney about estate planning documents, wherever you become a resident. And take with you your estate planning documents that you previously executed.

If you have any questions about this, please give me a call at 727-847-2288.

Video Summary

What can be done if my agent under my power of attorney is misusing my funds?  The first thing you need to do is contact your attorney or an attorney immediately and rescind and revoke your power of attorney.  Secondly, if you are over the age of 50 or 55 you should contact the Elder Abuse Line and ask the sheriff department to investigate this matter as far as crimes against the elderly as far as them misusing your funds.  So the immediate response or as soon as you find out about this you need to revoke the power of attorney so that they can no longer use it, notify your bank and that way they will no longer be able to use it.

If you put someone on your account as a joint tenant, that is going to be problematic.  I suggest that you remove all the money from the account and open up another account just in your name so that they do not have access to it.  That is of course problematic if you are getting your monthly social security checks and pension checks in this particular account, but that is a step in the right direction and then notify Social Security and these other agencies to send the money to the new account that the joint tenant does not have access to so that they cannot misuse your funds.

If you have any questions or need any assistance, give me a call at 727-847-2288.

Video Summary

Is a revocable trust, also known as a living trust, preferable to a will?  Well we need to look at why you’re setting up a trust.  Most people who are setting up trusts are setting up for the purpose of avoiding probate.  So in order to answer the question, first we need to see how your assets are titled.  If you have a husband and wife with a longstanding marriage and you own all your assets in your joint names, as husband and wife, well you do not need a trust and do not suggest you spend the money for it and a Will will do just fine because the assets will pass to the surviving spouse and therefore avoid probate which is the purpose of setting up the trust.  I then suggest you also have a will to cover any assets that might not be titled in the joint names.

Now, if you are a single person, we then look at the purpose of setting up the trust and if it’s to avoid probate, probate can be avoided by re-titling your assets such as if you have two children and you have a bank account and you wish the children receive the bank account, you have the account set up in your name payable on death, or called a POD account, to your two children so that when you pass away, the account will go automatically to your two children and avoid probate.  You also can even take care of your real estate such as your home by signing a life estate deed which allows you to retain control of your home and live there during your lifetime but provides that upon your death that it automatically vest in your two children.

Now, if you have a particular problem with one of your children, if you do not want them to receive your assets outright such as one that has say a drug addiction or if you have one that has financial problems or federal tax liens or any other basis that they cannot handle money and you want them to receive it over a period of time, then we may want to set up a trust to accomplish that.  Same thing if you have minor children.  If you say, “Well, I don’t want them to receive these assets because they’re under age,” or “I don’t want them to receive it at age 18,” those are all good reasons to set up a trust.  And if you are husband and wife, we can put in your will as a safeguard, a testamentary trust that says if your spouse predeceases you and you don’t get around to addressing it after your spouse dies, then you can set up a trust.

So that’s the long answer.  The short answer to this is, why are you setting up a trust?  And so once you define that question, well then we could answer that as to whether or not it’s preferable to a will or not and trusts are more complicated and cost more to prepare.  And most of the time we can re-title your assets to avoid probate and don’t suggest that you set up a revocable trust, a joint trust in any event.  So hopefully that gives you a lawyer answer to whether or not a trust is preferable to a will.  If you have some questions about it, give me a call at 727-847-2288.

Video Summary

Who should I appoint as my healthcare surrogate? First, what is a healthcare surrogate?  A healthcare surrogate is someone you appoint to make healthcare decisions for you and usually in the healthcare surrogate form, it’s whenever you’re unable to make healthcare decisions. That person should be someone who is close to you and understands your desires and wishes, certainly your spouse would be, I would think primary. If you don’t have a spouse or significant other, if you have a child that is particularly nurturing or helps you with your medical problems or appointments and is aware of it, I think that they would be a great candidate. Also if you have any one of your children or family or friends who are nurses who are involved in the healthcare profession.

I also put in, whenever I designate or fill out the healthcare surrogate form, what they call a HIPPA waiver, because this person will be the one that will be the point person for your relatives and friends who want to know how you’re doing, because the medical community cannot release information to anyone without a HIPPA waiver. We usually attach a HIPPA waiver to your healthcare surrogate form so that they will release medical information to your healthcare surrogate. Hopefully, that will give you some sort of guidelines. Certainly don’t name the healthcare surrogate as the same person as your Power of Attorney who will handle financial matters and that you would want to designate someone that has a little more business expertise and that may not be the same person.

If you would like to have a healthcare surrogate done or some estate planning, give me a call at 727-847-2288.  Thank you.