Elder Law Article
Kevin Albaum

Guardianships

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By: Kevin R. Albaum
Clark, Campbell, Lancaster & Munson, P.A.

Q: My father has difficulty living on his own. Does he need a guardian?

A: A common misconception exists that a guardianship is necessary whenever an aging adult experiences some level of incapacity or difficulty making personal, financial, or healthcare decisions. Subjecting a person to guardianship should be the last option, and it is often the most costly option. When you contemplate a guardianship for a friend or family member, ask yourself how you can help and protect the person in the least restrictive manner possible.

A meeting between concerned friends and family members can uncover support mechanisms already in place for safety and care and can expose any deficiencies. Alternatives to guardianship are available, including durable powers of attorney, revocable trusts, friends or family serving as representative payees for government benefits, hiring of a geriatric care manager, joint bank accounts, health care surrogates, and simple family and friend supervision and involvement. After exploring whether these options offset the incapacities of the aging adult, consult with an attorney to discuss initiating guardianship proceedings, wherein the court will determine the nature and extent of incapacity and appoint a guardian if appropriate. The scope of the guardian’s powers, if any, will depend on the extent of incapacity, which is determined primarily a court-appointed medical examining committee. The court and committee will explore and consider the least restrictive alternatives to guardianship, because guardianship may result in the aging adult losing rights to make his or her own decisions about travel, expenses, and other every day choices.

 

The May 21st edition of “The Law” will continue our coverage of National Elder Law Month with a discussion about the “probate” process that occurs when an individual dies without having specified beneficiaries for all assets.

 Kevin Albaum is an estate planning and elder law attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. and a proud member of the National Academy of Elder Law Attorneys (NAELA). NAELA has designated May as National Elder Law Month to focus on educating seniors about legal options. NAELA and its member attorneys provide legal advocacy, guidance, and services to enhance the lives of seniors and people with disabilities. Questions can be submitted online to thelaw@clarkcampbell-law.com.

Elder Law Article
Kevin Albaum

Adding Durability to Your Estate Plan

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By: Kevin R. Albaum
Clark, Campbell, Lancaster & Munson, P.A.

Q: How do I delegate authority in the event I become incapacitated?

A: A Power of Attorney is a legal document allowing a person (the “principal”) to delegate authority to an “agent” to act on the principal’s behalf. The document can be very specific and “limited” to allow the agent to complete a specific act such as selling the principal’s car, or it can be “general” to allow the agent to take most legal actions that the principal could also do on her own. Some such powers include creating trusts, making gifts of assets, selling property, accessing bank accounts, or signing contracts and other legal documents.

Generally, a Power of Attorney loses effectiveness when the principal becomes legally incapacitated unless the document specifically indicates otherwise, in which case the document becomes “durable”. A Durable Power of Attorney affords a principal planned protection should a health-related emergency or other unfortunate event causing temporary or permanent loss of capacity occur. Durable Powers of Attorney allow the agent to pay the principal’s monthly bills and make healthcare decisions during the incapacity.

Powers of Attorney drafted in Florida on or after October 1, 2011 are immediately effective from the date of execution. As a best practice, the principal should advise the agent of the Power of Attorney but not provide a copy of the document until the principal would like the agent to use it. The principal could let a family member or attorney hold the document or know of the document’s secure location and instruct the family member or attorney not to give the document to the agent until a certain time or event.

With boilerplate forms at your fingertips on the internet, you may be tempted to go at this venture without an attorney. However, legal help is wise to ensure the Power of Attorney document meets your specific circumstances and ensure that you have adequate protections in place, including protection from abuse of the powers by the agent.

The March 26th edition of “The Law” will address animal cruelty in the recent news and the legislature.

[Kevin Albaum is an estate planning and elder law associate attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@clarkcampbell-law.com.]

Elder Law Article
CCLM Law

Will Must Be Equivocal As to Intentions

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By: Clark, Campbell, Lancaster & Munson, P.A.

Q: Must I revise my will when I acquire new assets?

A: A well-crafted will need not be revised for each new asset, but, as at least one surviving brother learned, the intentions for such future-acquired property must be clear in the will.

On March 27, the Florida Supreme Court resolved the dispute over property that Ann Aldrich acquired after writing her will but before her death. Without an attorney, Aldrich used a universal legal form to draft her will. She listed out each of her known assets and indicated that all were to go to her sister or, if the sister died first, to her brother. The sister then died and left assets to Aldrich, who never revised her will but did later write and sign a note that indicated that all of her possessions (including the inheritance from her sister) would go to the brother.

Upon Aldrich’s death, her brother claimed Aldrich’s intent to give everything to the brother was clear: she had intended to list all of her assets in her will, she listed only one beneficiary (the brother), and she later signed a note to clarify that the brother would also get the assets acquired after the will was executed. But Aldrich’s nieces from her other, deceased brother claimed otherwise, noting that the will itself simply listed assets to go to the brother and did not clarify any intention of what might happen to other assets not listed.

The Court agreed with the nieces and limited itself to the four corners of the will, which was vague at best as to Aldrich’s intention. Aldrich should have included a general “residuary clause” to act as a catchall provision for the intentions as to all assets not specifically listed. Without such a clause, the law handles such assets using strict bloodline inheritance rules regardless of the will.

Planning your estate does not have to be difficult and can be effectively done in a single step without worrying about making changes with each asset. An attorney can help ensure that your intentions are clear in all of your estate planning documents.