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Archive for May, 2012

GUARDIAN ADVOCATES – WHO CAN AND SHOULD SERVE

Thursday, May 31st, 2012 by

(Guardian Advocacy Series – Part Two)    

      Guardian advocacy is a special form of guardianship for individuals with developmental disabilities.  Like other forms of guardianship, guardian advocacy involves the court appointing one or more individuals to help take care of the person with a developmental disability (the “ward”).  These individuals are called guardian advocates.

     Florida Statutes specify the types of individuals who may serve as guardian advocates in Florida.  Generally, any Florida resident who is mentally competent and 18 years of age or older may be a guardian advocate.  Non-residents may also serve as guardian advocates, but they must be:

  • -   a blood relative of the ward;
  • -   married to the ward;
  • -   married to one of the ward’s blood relatives;
  • -   an adopted child or adoptive parent of the ward; or
  • -   a blood relative of the ward’s spouse.

      Of course, someone who falls into one of the above categories may not be fit to serve as guardian advocate. The law states that a person will be disqualified from acting as a guardian advocate if he or she has been convicted of a felony, is physically or mentally incapable of performing the duties of a guardian advocate, or is unsuitable for any of a number of other reasons.

     In most of the guardian advocacies our firm handles, one (or sometimes both) of the natural parents of the ward chooses to serve as guardian advocate.  This choice usually makes sense because, in most cases, the parent has been taking care of the ward since birth.  Siblings or other relatives can also be great guardian advocates if they are familiar with (or willing to learn about) the ward’s needs and desires.  Finally, there are neutral individuals who are available to serve as professional guardian advocates when there is no willing family member.    

      This blog is the second part of a series on Guardian Advocacy.  Additional parts will follow over the next few months.  If you have individual questions about guardian advocacy, please feel free to call and make an appointment.

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LEAVING ASSETS UNEQUALLY, BUT FAIRLY

Thursday, May 24th, 2012 by

Our clients sometimes feel that dividing their assets unequally between their children is the “fair” thing to do.  There are many reasons that a parent might want to leave more money to one child than another.  One child might have a greater need for financial assistance based on mental or physical disability.  Or the parent may have made unequal gifts between his children during his lifetime and want to even things out.  Another possibility is that the parent has received significantly more caregiving or other assistance from one child.

Regardless of the underlying facts, we advise clients who choose an unequal distribution to explain this decision to their children.  This can be done in your estate planning documents themselves, through lifetime conversations, or via written or recorded messages kept with your estate plan.  We believe, and experts agree, that communication is an amazingly powerful tool to avoid family feuds.

We at Cramer Law Center are looking forward to spending time with our families as we head into the Memorial Day weekend.  If you will be with your children (or parents) for the holiday, we urge you to consider talking to them about how you (or they) intend to leave assets and why.

For more information, see “Leaving a Fair Will” by Jane Bryant Quinn: http://www.aarp.org/work/retirement-planning/info-05-2012/how-to-leave-a-fair-will.html, or call us to set up a free estate planning consultation.

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WHAT IS GUARDIAN ADVOCACY?

Friday, May 18th, 2012 by

(Guardian Advocacy Series – Part One)

     Guardian advocacy is a special form of guardianship for individuals with developmental disabilities.  Like other forms of guardianship, guardian advocacy involves the court appointing one or more individuals to help take care of the person under guardianship, called the ward.

     While they are minors, the parents of developmentally disabled persons are their natural guardians and may make any decisions necessary in caring for them.  However, like all children, developmentally disabled individuals become adults in the eyes of the law on their eighteenth birthdays.  This means that parents no longer have the legal right to make decisions on such matters as medical treatment, social environment, or even where their child will live. The developmentally disabled person will also automatically have the right to marry, to sign contracts, and to sell or give away his or her property.

      Guardian advocacy allows the parents of a developmentally disabled person (or other appropriate individuals) to continue to assist that person in his or her life decisions.  A guardian advocate can help his or her ward by choosing where the ward will live, applying for government benefits such as Social Security income, making medical decisions, and managing money and other assets of the ward. 

     Like other guardians, the guardian advocate is held responsible by the court for his or her care of the ward.  However, the process for guardian advocacy is simpler than for other forms of guardianship and is intended to be less restrictive on the ward.

     This blog is the first part of a series on Guardian Advocacy.  Several additional parts will follow over the next few months.  If you have individual questions about guardian advocacy, please feel free to call and make an appointment.

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“THE PLAYERS” OF ESTATE PLANNING

Thursday, May 10th, 2012 by

The beginning of May always brings national attention to the Jacksonville area when the Players Championship comes to town.  For one week each year, the Players is the hot ticket in town and for good reason; the tournament, which is part of the PGA tour, brings international golf superstars to town and raises millions of dollars for local charities.  As Jacksonville estate planning attorneys, we find two different meanings in the words “the players”: we are reminded of all the positive energy that flows through the city at the time of the tournament, but also think about the players of estate planning.

Your estate planning “players” are the people you choose to protect your assets during your lifetime and distribute or manage them after your death.  This would include the trustee(s) of your trust, the executor(s) of your will, and anyone to whom you have given a durable power of attorney.  Other important players are those individuals to whom you have granted access your health care information or the power to make health care decisions for you, such as your designated health care surrogate.

The players you choose for your estate plan should be people that you trust completely and who know you well enough to make the decisions you would have made.  They must also be willing and able to perform their duties.  If it has been more than a couple years since you designated your estate planning players, you should review them to ensure that your choices are still appropriate and relevant today.

 

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GEORGE WASHINGTON: ESTATE PLANNER

Friday, May 4th, 2012 by

I have just returned from Indianapolis where I attended the 49th Collegium of the National Network of Estate Planning Attorneys.  I wanted to share the highlights of my trip, including continuing my technical education, benefitting from the experience of preeminent colleagues, and a reminder of estate planning done right by one of the founding fathers.

I first took an intensive two day course concerning irrevocable life insurance trusts. An “ILIT” is a technique that can be used to allow life insurance proceeds to escape the estate tax.  Although this has not been that much of a concern in recent years with the individual estate tax exemption ranging from $3.5 million to $5 million, if that exemption is lowered to $1 million on January 1, 2013, as is currently the law, then we expect many more people will inquire about setting up ILITs.  Besides the technical component of the education, we also learned from life insurance professionals about concerns that life insurance policies previously placed inside ILITs run the risk of “blowing up” (becoming far more expensive then anticipated) and sabotaging the purpose for which the ILIT was constructed. This highlights the importance of monitoring the performance of your ILIT on a regular basis.

Besides having the time to focus on legal technical subjects, what I most enjoy about these gatherings is learning best practices from leaders in the estate planning field.  We heard from Susan Bradley, author of the book “Sudden Money,” and from John A. Warnick, chairman of the Purposeful Planning Institute, concerning ways to go above and beyond the norm to assist our estate planning clients to “leave their wisdom along with their wealth.”

Passing on wisdom along with property is one of our core planning philosophies, and I was reminded that it goes back to the time of the founding fathers. In George Washington’s Last Will and Testament, he left his collection of swords to his nephews and, in addition to personal observations directed to each nephew, he said the following:

“These swords are accompanied with an injunction not to unsheathe them for the purpose of shedding blood, except it be for self-defense or in the defense of their country and its rights, and in the latter case, to keep them unsheathed, and prefer falling with them in their hands to the  relinquishment thereof.”

Estate planning really can provide the setting for bringing out the very best in people.  We would be happy to help you hand down your life experiences as well as your assets.

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