A New Year's Resolution You Can Actually Follow Through With

We are now 4 days into 2016. You may or may not have already ditched your new years resolutions by now.  After all, just because the calendar presents a new year, it doesn't mean you are going to turn into a gym rat, run a marathon, or change your diet from regularly eating pizza and pasta to eating no carbs and drinking green smoothies.

There is one resolution you can make that does not require changing your daily routine; that is reviewing your estate plan! It is time to dust off your estate planning documents and make sure your plan accurately reflects your current wishes and goals.

If you live in South Florida and do not have any estate planning documents, it is time to prepare them! Estate planning documents, such as your will, trust, and power of attorney are living documents. They need to be reviewed and updated as the laws change and as your family and financial situations change.

“There is one resolution you can make that does not require changing your daily routine; that is reviewing your estate plan! ”

Have there been any life changing events since the last time you reviewed or prepared your estate plan? If you can answer 'yes' to any of the following questions, then your estate plan should be reviewed:

* Did you get married or divorced?

* Did your spouse pass away or become incapacitated?

* Did you have or adopt any children?

* Did any of your beneficiaries marry, divorce, have children, pass away or become incapacitated, or encounter creditors or other financial problems?

* Did any of your designated fiduciaries pass away or become unfit to serve in their designated roles?

* Did you retire?

* Did your financial situation change?

* Did you buy or sell a home?

* Did you sell your business?

* Did you acquire new assets?

If you live in Miami-Dade, Broward, or Palm Beach county contact an experienced estate-planning attorney at The Hershey Law Firm, in Fort Lauderdale, Florida, at (954) 303-9468 to discuss your estate planning needs.

You Can’t Predict The Future, But You Can Plan For It.

A Verbal Contract Isn't Worth The Paper It's Written On

Before smartphones and email, a phone call to speak with someone directly was the fastest form of communication. It was much faster then writing a letter, mailing the letter, and then impatiently waiting for the response. By the time you got a response, you might have forgotten the question asked or the question was no longer relevant.

Life moves so fast that our generation expects an immediate response to an email and text. If we don't respond immediately, we might cause a boyfriend/girlfriend to start 'wondering' why you didn't respond (which is grounds for a lot of pointless arguments).  You might lose a potential client if you don't respond immediately. They might assume you are not interested in their business or that you are too busy. The potential client will quickly move onto the next person hoping to gain the immediate attention they are seeking. 

Luckily, people still enjoy face-to-face communication. A lot of business takes place after hours over happy hour drinks and dinner.  If you verbally agree to working with someone over drinks, what are the chances one person might back out of the agreement the next day? With drinks flowing, people are more willing to enter into agreements.  Once they are sober, they might question that agreement and pretend it never existed. In the words of Jaime Foxx,  " blame it on the a a a a a alcohol"

“You should never leave your affairs up to chance. Leaving specific and detailed instructions in your will or trust can help solve complications down the line”

Well, the good thing is, it was only a verbal agreement. The bad thing is, it was only a verbal agreement.

When it comes to estate planning, many people make the common mistake of assuming their loved ones will honor their true wishes, as expressed verbally.  You should never leave your affairs up to chance. Leaving specific and detailed instructions in your will or trust can help solve complications down the line. There will be no question as to what your wishes are if they are clearly stated on paper.

In South Florida, there are a number of vehicles used with estate planning to protect both your assets and your wishes at your time of death. These documents will take away the possible 'he-said-she said' verbal agreements prior to your passing.

Revocable Trust(living trust): Allows you to control and manage assets in your trust while you are alive.

Living Will and Healthcare Surrogate- Will allow you to designate who will make medical decisions when you are unable to do so yourself.

Assignment of Property: Assign your property into your trust (real and personal property) to protect your assets.

Durable Power of Attorney: Designate and authorize someone to legally act on your behalf in the event you become incapacitated.

Last Will and Testament: Used upon death to distribute property to beneficiaries, specify last wishes, and name guardians for minor children.

If you live in Miami-Dade, Broward, or Palm Beach county contact an experienced estate-planning attorney at The Hershey Law Firm, in Fort Lauderdale, Florida, at (954) 303-9468 to discuss your estate planning needs.

You can’t predict the future, but you can plan for it.

Does a Durable Power of Attorney Last Forever?

Does a Durable Power of Attorney Last Forever?

Simply stated: Nothing Lasts Forever

What is a Durable Power of Attorney?

A Durable Power of Attorney is a document that grants a designated person to manage your financial affairs either immediately or in the future should you become unable to do so yourself. The designated person will have the power to buy and sell real estate, open and close bank accounts, file tax returns, etc. The word 'durable' allows the power to continue even after you become incapacitated.

Beware: A durable power of attorney is only effective while the principal is alive. Once that person dies, the durable power of attorney dies with them.  Therefore, you will not be able to use a Durable Power of Attorney to sell the home of a deceased person nor are you able to close financial accounts owned by the decedent.

What document is used once you die?

Once someone dies, it is important to have a Last Will & Testament. The Will names someone who can act as the personal representative/executor of the decedent's estate who will be responsible for administering the estate. After debts are paid, the personal representative is also responsible for distributing assets to the beneficiaries listed in the will.

“Therefore, you will not be able to use a Durable Power of Attorney to sell the home of a deceased person nor are you able to close financial accounts owned by the decedent.”

So if you are thinking of planning ahead and preparing your estate planning portfolio, make sure it includes documents that will be used while you are alive as well as when you are gone. Everyone should have a Durable Power of Attorney as well as a Last Will & Testament.

If you live in Miami-Dade, Broward, or Palm Beach contact an experienced estate-planning attorney at The Hershey Law Firm, in Fort Lauderdale, Florida, at (954) 303-9468 to discuss your estate planning needs. You can’t predict the future, but you can plan for it.

Warning: Do Not Draft Your Own Power of Attorney

So you decided it was important to have an estate plan. However, you decided to find forms online and fill in the blanks yourself.  One of the forms you filled in was a Power of Attorney. You wanted to make sure that when you were no longer able to make financial decisions for yourself (incapacitated), that you named a trusted person to make those decisions on your behalf.

            What happens if you become incapacitated and your family needs to take your Power of Attorney to the bank to gain access to your accounts and they are denied? Why would a bank deny a Power of Attorney?

Two reasons why banks sometimes reject a Power of Attorney (POA):

(1) It is not 'durable': If a Power of Attorney is not a 'durable' POA then it is only valid while the principal (the person who signed the document and is appointing someone else- their 'agent' to act on their behalf) is of sound mind.

‘Durable’ means the POA continues to be effective after the incapacitation of the principal.

BEWARE: People who find a POA form online do not realize the significance of it needing to be a 'durable' power of attorney. They tend to draft a POA that is not durable and end up with a useless document.

“Think twice about saving money by drafting your own estate planning documents. A short term saving can often turn into a greater expense in the long run.”

(2) It has not been activated: The POA may be 'springing'. This simply means that it only becomes effective upon the incapacitation of the principal. Typically it will require a physician to examine the principal and determine they are no longer capable of managing their affairs due to mental incapacity. If that is the case, the bank will want to see the physician's letter before accepting the POA.

BEWARE: As of October 1, 2011, in Florida  'springing' powers will only be effective for a POA drafted before October 1, 2011. If someone drafts his or her own POA online with a springing power it will be deemed ineffective.

How To Handle Power of Attorney Problems with Banks

Even with a properly prepared POA, you might run into problems with trying to get banks and other financial institutions to recognize the form's validity. Banks are sometimes nervous to allow access to a customer's accounts for fear of a lawsuit if they allow access to the wrong person or even the right person under the wrong circumstances.

Think twice about saving money by drafting your own estate planning documents. A short term saving can often turn into a greater expense in the long run.

If you live in Miami-Dade, Broward, or Palm Beach counties contact an experienced estate-planning attorney at The Hershey Law Firm, in Fort Lauderdale, Florida, at (954) 303-9468 to discuss your estate planning needs. You can’t predict the future, but you can plan for it.

Pass the Turkey, Pass The Gravy, Pass the Durable Power of Attorney

It is that time of year again to sit down with your loved ones, over eat, and go around the table and say what you are thankful for. The reality of the situation is that you sit down to eat an overabundance of food with extended family members you sometimes wish were strangers. You hope you don’t come across as rude when you would rather pay attention to the football game on the television as opposed to listening their mundane stories. After all, if you really wanted to hear their stories throughout the year, you could have called them, texted or even sent a Facebook message.  

It is the start of the holiday season in South Florida and the last thing on your mind is planning your estate for when you pass away or preparing documents in case you become incapacitated. But in reality, this time of year makes you realize that if you do not properly plan your estate, family members that you are not too fond of might fight over your estate (and win). Is that really something you want to happen when you pass away?  I think not!

Start thinking about who you would like to make medical and financial decisions for you in case you are unable to make those decisions for yourself. Remember, if you are married, your spouse is not legally given the right to make medical and financial decisions for you.  That right must be placed in writing. Also, if you have “children” in college, you will need their written permission to make decisions for them. “Because I said so”, is no longer a valid answer as a parent once your child reaches the age of eighteen! 

“But in reality, this time of year makes you realize that if you do not properly plan your estate, family members that you are not too fond of might fight over your estate (and win)”

It is the perfect time for South Florida residents to think about building (or updating) their estate-planning portfolio:

Will: State your final wishes regarding who will receive or who will not receive from your estate, name guardians for your minor children, state directions regarding organ donation and burial

 Revocable Trust(living trust): In depth document that will state your final wishes. You are able to place stipulations and retain control of your assets during your lifetime. 

Supplemental Documents 

Durable Power of Attorney: Name someone to manage your financial affairs either immediately or in the future should you become unable to do so yourself. 

Living Will: Document that will state how and if you want to prolong your life if you fall into a vegetative state.

 Healthcare Surrogate: Name someone to act on your behalf if you become unable to make medical decisions for yourself.

If you live in Miami-Dade, Broward, or Palm Beach counties it is time to start discussing with loved ones their estate planning needs. You can’t predict the future, but you can plan for it.

Contact an experienced estate-planning attorney at The Hershey Law Firm, in Fort Lauderdale, Florida, at (954) 303-9468 to discuss your estate planning needs.

Changing Roles of Parents and Children- Planning for Incapacity of Parents

As a child, you see your parents as superheroes. They are the most amazing people you will ever meet. They take care of you when you are sick, pack your lunch (sometimes not the best meal), or act as your personal chauffer from one after school activity to the next.

In a blink of an eye, you are an adult, acting as a superhero for your own children. You begin to realize that your parents, who did everything for you, now require your help. They might forget to pay their bills or may make decisions where you ask yourself, “Why in the world did they agree to that?” Roles have been reversed and you are now parenting your parents. 

When a parent is unable to make his or her own decisions (even if they aren’t deemed incapacitated), a power of attorney is necessary.

In Florida, a power of attorney is used by Florida estate planning attorneys to help their clients plan for incapacity. A power of attorney allows you to name the person who can act on your behalf so that the court does not have to.  The person who signs the power of attorney is the “principal”. The person authorized to act on behalf of the principal is known as the “agent”. Without proper planning, if actions need to be taken by a person who has lost mental capacity, there is a court procedure called a “guardianship”.  Guardianship proceedings require an attorney to represent you in court. In Florida, a guardianship can be financially costly and emotionally draining.

Preparing a power of attorney in Florida will allow you to name the person who can act on your behalf so that the court does not have to make that decision.  A power of attorney can save you thousands of dollars by avoiding guardianship proceedings.

“When a parent is unable to make his or her own decisions (even if they aren’t deemed incapacitated), a power of attorney is necessary.”

There are a number of power of attorney options available in Florida.

General Power of Attorney:  Given for all purposes and not limited in scope. The agent under a general power of attorney can take any act that the principal could take.

Specific Power of Attorney:  Granted for a specific purpose. For example, the principal might authorize the agent to buy/sell real estate.

Durable Power of Attorney:  Contains specific language stating that the agent’s ability to act on behalf of the principal is not affected by the principal’s subsequent incapacity.

Health Care Power of Attorney (Health Care Surrogate):  Allows someone to make end-of-life or other medical decisions on behalf of the principal.

Well planned estate planning includes a power of attorney. If you live in Miami-Dade, Broward, or Palm Beach counties and have elder parents, you may want to discuss preparing a power of attorney. You can’t predict the future, but you can plan for it.

Contact an experienced estate planning attorney at The Hershey Law Firm, in Fort Lauderdale, Florida, at (954) 303-9468 to discuss your estate planning needs.

Who Can Make Decisions For Me If I Become Incapacitated?

As a child, we are told to do this and do that. All children say “I can do it myself”

If all you wanted when you were a child was to be an adult to make your own decisions, why would you allow yourself to be placed in that same situation again as an adult?  Do you really want someone else to decide the most important decision you will ever be faced with? If you become incapacitated, do you want someone else to decide when to “pull the plug” or “take out the feeding tube”?

“The last thing families should deal with at such a difficult time is inner family fighting over your last wishes.”

A very famous Florida case lasting from 1990-2005 was the Terri Schiavo case. The issue was whether to carry out the decision of her husband, to terminate life support for his wife or follow the wishes of her parents.  Terri collapsed at home in full cardiac arrest and suffered massive brain damage due to lack of oxygen. After 2.5 months Terri was diagnosed by doctors as being in a “persistent vegetative state”. The case was highly publicized and prolonged by court appeals and multiple denials by the Supreme Court of the United States.  Terri’s life was prolonged for years due to the fact that her wishes were unknown. 

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Without proper planning your ultimate last wishes will be unknown. You can have conversations with your spouse, your children, family members and close friends. However, unless there is something written on paper, your wishes will go unheard. The last thing families should deal with at such a difficult time is inner family fighting over your last wishes.

There are a number of documents that will state exactly what a person wants when they become incapacitated.

Durable Power of Attorney: This document will state who will be in charge of financial decisions on your behalf.

Healthcare Surrogate: This document will direct who will make healthcare decisions (ie. If you get into a car accident and are not conscious to decide if you should get surgery)

HIPPA Release: This will allow the individual you choose to view your medical records. Even married couples cannot view their spouse’s medical records (MRI, Xray, etc) without a HIPPA release.

Living Will (Advanced Directive): This form of “will” is to be used while an individual is still alive (but no longer able to make decisions) hence the term “living will”.

This document will state how and if you want to prolong your life if you fall into a vegetative state.  You can state if you wish to be placed on life support, if so, for how long and at what point to “pull the plug”. You can also state if you wish to receive a feeding tube and when you wish to take it out.

Without the use of the (1) Durable Power of Attorney, (2) Healthcare Surrogate, (3) HIPPA Release, and (4) Living Will, your wishes will not be heard.  Do not let someone else direct your life when it matters most.

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Take charge of your last living decisions and plan ahead! For more information on successful Florida estate planning, please contact The Hershey Law Firm PA at (954) 303-9468 to schedule your free consultation.