Archive for October, 2010
THE GUARDIAN ADVOCATE
When children with developmental disabilities reach age 18, they become “adults” in the eyes of the law. Parents no longer may legally make financial and health care decisions for their adult children. If the developmental disability is severe enough to prevent the adult child from caring for him or herself, the parents must apply to become their child’s legal guardian in order to continue making important decisions for their developmentally disabled child – such as consenting to medical, dental, and surgical procedures; managing money or property; applying for governmental benefits and entitlements; and deciding on residential choices.
Fortunately, Chapter 393 of the Florida Statutes is specifically designed to meet the unique needs of persons with developmental disabilities. The person who would be appointed to care for an adult with developmental disabilities is called a “guardian advocate.” Even though the term is different from the term “guardian” as used in Chapter 744 of the Florida Statutes, the authority given by the court to each is the same. However, Chapter 393 is less restrictive, less costly and much preferred in order to care for persons with developmental disabilities.
Because of the streamlined process, guardian advocacy proceedings are consuming less court time and thereby reducing attorney’s fees. For example, there is no need to pay for an examining committee of three professionals, as is required in Chapter 744. The statute does not require a separate hearing to determine incapacity and there is no adjudication of incapacity. Existing professional evaluations and plans identifying needs may be used to identify rights which the developmentally disabled individual cannot handle. The judge will review the reports, evaluations and support plans and then appoint a guardian advocate to perform only those functions that the person is unable to perform. All of those rights that the developmentally disabled person cannot manage will be given to the guardian advocate to handle.
We are fortunate to have this streamlined guardian advocate procedure available in Florida. Parents with developmentally disabled children should be aware of this statute and plan ahead for when a child with developmental disability reaches 18 and becomes an “adult.” Cramer Law Center has helped many persons through the guardian advocate process and is available to help others through the process.
ZERO TAX PLANNING
I returned from Orlando last month where I attended the 46th Semi-Annual Estate Planning Collegium sponsored by the National Network of Estate Planning Attorneys. It was a great week seeing colleagues from across the country and getting back into the classroom for some in depth training on estate planning issues. This newsletter will highlight the discussions.
The estate tax is scheduled to return with a vengeance on January 1, 2011. But, I remind you that the estate tax remains the only voluntary tax in the United States. With zero tax planning, the estate tax can be eliminated by way of lifetime and/or testamentary charitable strategies. The discussion of zero tax planning also reminded me that there are so many opportunities for those of you who are charitably inclined to benefit both the charities of your choice and to accomplish your family wealth transfer goals by making lifetime and/or testamentary gifts. If any of you are interesting in learning more about charitable strategies for estate tax planning, please feel free to contact me.
Other highlights of the conference included detailed courses on asset protection planning, irrevocable life insurance trusts, integrating qualified retirement plans into the estate planning process, and strategies to utilize the generation skipping transfer tax. I also attended a discussion on special needs disability planning. Creating a safe legal haven for families with special needs is a particular challenge and we welcomed the opportunity to learn of the most recent social security changes which impact that planning.
My legal assistants, Valentina and Michelle, joined me for the last day of the conference and participated in several breakout sessions, so that we could learn about as many topics as possible. All in all, we have returned from the conference energized and full of new ideas to assist you with your estate planning needs.