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Archive for January, 2010

THE STATE STEPS IN!

Thursday, January 28th, 2010 by

This is the final newsletter in our series on the six common mistakes parents make when naming guardians for their children.  MISTAKE #6.  YOU MAY NOT HAVE NAMED ENOUGH ALTERNATES TO SERVE IF YOUR FIRST CHOICE CANNOT SERVE.

 

            Deciding on who should be a guardian for your children is a difficult question.  Often you will struggle just to find one person who you feel might do an adequate job.  Unfortunately, if that ideal person should die before you, then the State will name a successor guardian, if you have not done so.  We recommend naming at least a second and even a third alternate guardian, to avoid this problem.  Of course, an ideal solution is to have an ongoing relationship with your estate planning attorney, including an annual estate planning “check up”, so that your plan may be revised in a timely manner in the event of an unforeseen occurrence such as the death of the person you have named as primary guardian for your children. 

 

            This concludes our series on the Six Common Mistakes Parents Make When They Are Naming Guardians For Their Children.  Avoiding these mistakes is easy.  When you work with us – we specifically focus on the needs of parents – like you!

 

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            We are pleased to announce that we will offer a series of “Lunch and Learn” workshops on a quarterly basis in 2010.  The first “Lunch and Learn” will be from noon to 1:00 p.m. on Thursday, February 25, 2010 in the Learning Center in our office.  We will discuss Advance Healthcare Directives, Healthcare Surrogates and Living Wills.  These sessions are designed to discuss a topic of general interest in an informal setting.  Clients in the annual maintenance program will be given first opportunity to attend and if there are remaining seats, we will open the workshop up to other newsletter subscribers.

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ADVANCE HEALTHCARE DIRECTIVES

Monday, January 25th, 2010 by

Florida law recognizes the fundamental right of every competent adult to determine and decide all aspects of his or her health, including the right to choose or refuse medical treatment.  This right is not to be frustrated even in the event of subsequent incapacity of the principal.  To further this right, the Florida legislature passed the “Life-Prolonging Procedures Act” in 1992.  The Act is now contained in Part III of Chapter 765, Florida Statutes.  Chapter 765 authorizes a competent adult individual to create a Living Will in order to direct the procedures that he or she would wish to be sustained or withdrawn in the event of a terminal condition, an end-stage condition, or a persistent vegetative state. 

 

            The importance of expressing your wishes is that Florida has adopted the concept of “substituted judgment.”   In Re:  Guardianship of Browning, 568 So.2d 4 (Fla. 1990).  The concept of substituted judgment means that if a now incompetent patient has left instructions regarding life sustaining treatment, the patient’s surrogate must make the medical choice that the patient, if competent, would have made.  The surrogate is not to make a choice that he or she might make for himself or herself, or that the surrogate might think is in the patient’s best interest. 

 

            As the Florida Supreme Court has noted:  “It is important for the surrogate decision-maker to fully appreciate that he or she makes the decision which the patient would personally choose.  One does not exercise another’s right of self-determination or fulfill that person’s right of privacy by making a decision which the state, family, or public opinion would prefer.  The surrogate decision maker must be confident that he or she can and is voicing the patient’s decision.”  (Id.)

 

            Both a Healthcare Surrogate and a Healthcare Proxy must look to any evidence of the patient’s wishes and then substitute the patient’s judgment for their own.  If there is evidence as to what the patient would have wanted, that evidence prevails.  Only if there is no evidence may the Healthcare Surrogate or Healthcare Proxy consider the patient’s best interest.  If you feel comfortable leaving decisions about life-prolonging decisions to your healthcare surrogate, then the law will not second guess the surrogate’s determination of your “best interest”.  If you neither complete a Living Will nor Designation of Healthcare Surrogate, a Healthcare Proxy may be appointed for you by the court.  In those circumstances; however, there must be clear and convincing evidence that the proxy’s decision would be in your best interest.

 

            The Cramer Law Center regularly advises clients on healthcare directives and end of life decision making issues and prepares designations of healthcare surrogate and living wills for its clients.

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YOUR EIGHTEEN YEAR OLD SON’S PORSCHE

Thursday, January 14th, 2010 by

This newsletter continues our series on the six common mistakes parents make when naming guardians for their children.  MISTAKE #5.  YOU MAY NOT HAVE PROVIDED FOR SOMEONE TO TAKE CARE OF THE MONEY YOU ARE LEAVING BEHIND.

 

            So, having learned how to avoid the first four mistakes, you have named short term and long term guardians for your children, specified what would happen if the couple you have named to act as guardians are no longer together, prepared a confidential document excluding anyone who might challenge your decision, and have provided necessary financial resources through life insurance or other means for the guardians to properly take care of your children.  However, in so doing you named your minor children as the beneficiaries of your life insurance policy.  Uh Oh!  Big Mistake!

 

            Minor children are not legally permitted to receive life insurance proceeds.  Naming them as your beneficiary guarantees that court involvement will be necessary in order for someone to be appointed to safeguard this money.  The court will supervise the money only until each individual child reaches the age of eighteen (18), at which time the child receives his share of the money outright, to be used as an eighteen (18) year old sees fit, including buying an expensive automobile.

 

            What you must do is not only name appropriate financial guardians for the children, but you should name either those guardians or a trust as the beneficiary on the life insurance policies themselves.  For example, if you have named your spouse as the primary beneficiary on your life insurance policy and your children as the contingent beneficiaries, the contingent beneficiaries likely would need to be changed to read, for example:  “Atticus Finch as guardian for Billy Sample” or as the “trustee of the Billy Sample Trust”.  By properly naming a guardian as the beneficiary of the life insurance proceeds, you will avoid the time and expense of a court proceeding to establish a guardianship.  You also will be able to make decisions to protect against your child receiving a substantial sum of money outright at age eighteen (18), by providing specific instructions to the financial guardians.

 

            Check with your estate planning attorney or life insurance agent to make sure the naming of your life insurance beneficiaries is done correctly.  Honestly, what 18 year old doesn’t want a Porsche!

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MOVIE REVIEW: SUMMER HOURS (L’heure d’été)(A Family Philanthropy Opportunity Missed)

Wednesday, January 6th, 2010 by

Summer Hours is a French film available with English sub-titles.  Although it is a very French film, the estate planning issues which play out are universal. 

 

            The family which is the subject of this film is comprised of Helene, the family matriarch, and her adult children, two sons and a daughter.  Juliette Binoche plays the daughter and is the most recognizable name in this fine ensemble cast.  Helene lives in a beautiful, large home in a small village outside Paris.  She has devoted her life to preserving the legacy of her uncle, a famous artist.  The home is filled with valuable paintings, antiques and other works of art.  The movie title refers to the times the family spends together on summer vacations at Helene’s villa.

 

            On the occasion of her 75th birthday, the children and grandchildren all gather at the estate to celebrate.  Helene has recently published a well-received book of her uncle’s work.  The family gets along in a genial, but superficial manner.  Helene takes a few minutes to talk with her eldest son about her testamentary wishes although she refuses to visit a lawyer to prepare a formal estate plan.  The other children are not involved in this discussion.

 

            After Helene’s death, the children meet to discuss disposition of the family wealth.  The eldest son wishes to preserve the ancestral home and its treasures for family visits and for future generations of the family to enjoy.  He lives in Paris and can look after the estate.  However, his brother is moving to China and his sister lives in New York.  Their goals are not the same and they vote (2-1) to sell everything.  At that point, a lawyer does become involved and advises about the heavy taxes which will be due.  Accordingly, some of the treasures are donated to the Musee d’Orsay.  The film ends on a wistful note as the children go their separate ways and the eldest son and his wife view their mother’s desk and chair in a sterile setting in the museum.  Although sad, the film is not depressing.  It is beautifully done, with fine acting, gorgeous scenery and a universal theme – the conflict between preserving the past, the cultural heritage and memories of a family, and the relentless pull of the present and future.

 

            What stands out for me is what wasn’t done.  And I am not just talking about Helene’s failure to consult a lawyer to do comprehensive estate planning.  As the film ends and the siblings go off in their different directions, the viewer senses that there will be no more “summer hours” for this family.  However, if the family had ever sat down together to talk about family values and philanthropy and to make philanthropy an important family business, they may have been able to continue to spend quality family time together into the foreseeable future.  The interaction in this family is the typical, surface interaction of many families today.  There is a reluctance to discuss deeply held values or to develop a common family mission, which leads to a lack of authentic trust among the family members. 

 

            If instead Helene had started a family foundation, perhaps requiring all heirs to participate in a family council which would decide foundation business, the family may have agreed upon a common mission that would keep them strong and together well into the future.  Perhaps a fund could have been established to pay for the family travel expenses to attend foundation meetings, so that every family member could attend regardless of their location or circumstances.  Then, no matter whether or not this particular home was sold, preserving the family’s legacy and developing a common philanthropic mission could have set the stage for this family to spend many more “summer hours” together.  This opportunity would not have been missed if the family had spent time with a legacy oriented estate planning attorney.

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