Estate planning is inextricably intertwined with the stages of life that will be preceding your passing. For this reason it is best to develop a comprehensive plan for aging that includes retirement planning, incapacity planning, and estate planning. You never know what the future is going to hold, and nobody has a crystal ball. However, what you can do is educate yourself and understand some of the challenges that you may be facing later in your life and plan appropriately for your own well-being as well as that of your family members.

With this in mind elder law attorneys are going to emphasize the importance of the execution of a living will and a durable medical power of attorney. With a living will you express your wishes regarding medical procedures that you would be willing to accept and those that you would prefer to deny should you become unable to communicate your decisions for yourself in real time. The matter of being kept alive via the use of artificial life support techniques is at the root of most living wills. To understand the importance of living wills for people of all ages, simply think back to the case of Terri Schiavo that was so prominently covered in the news a number of years back.

With a durable medical power of attorney you empower a representative of your own choosing to make medical decisions in your behalf should the time come when you cannot make them for yourself. The reason why you would execute this document as well as a living will is because there could be scenarios that arise that were not specifically addressed in the living will.

These documents, called advanced health care directives, should be a part of any holistic plan for the future. If you do not have your advanced directives in place, take action right now and arrange for a consultation with an experienced elder law attorney.

Ryan, Hicks, Cumpton & Cumpton LLP is a member of the American Academy of Estate Planning Attorneys.

When you get to thinking about estate planning you would do well to consider the period of time that will be preceding your death as well as planning for the distribution of your assets after you pass away. When you reach an advanced age you may well go through a period of gradual decline, and though this is not the most pleasant thing in the world to consider it is a reality all the same.

If you are aware of all of the eventualities that you may face as time goes on, you can make the appropriate preparations so that you and your family are not faced with any completely unexpected surprises.

With the above in mind it is wise to understand just how common Alzheimer’s disease has become in the United States today. According to the Alzheimer’s Association, one out of every eight Americans who have reached the age of 65 is suffering from Alzheimer’s disease. This equates to 13%, which is a very significant portion of the senior citizen population.

As you might expect, the possibility of contracting Alzheimer’s disease increases as you get older. Studies conducted by the Alzheimer’s Association indicate that approximately 43% of people age 85 and up are suffering from Alzheimer’s disease. It should be noted that this segment of the population, termed the “oldest old” in geriatric circles, is the fastest-growing age demographic subset in the United States.

Alzheimer’s disease causes dementia, which can make it impossible for its victims to render sound personal, financial, and health care decisions. And of course Alzheimer’s disease is not the only cause of dementia. Considering these facts, it is important to execute durable powers of attorney designating decision-makers to act in your behalf should you become unable to make sound decisions for yourself at some point in time.

If you have not yet considered incapacity planning, in light of the ubiquity of Alzheimer’s disease you may want to take action and arrange for a consultation with an experienced elder law attorney as soon as possible.

Ryan, Hicks, Cumpton & Cumpton LLP is a member of the American Academy of Estate Planning Attorneys.

Though it is important to have an estate plan in place as soon as you become a responsible adult people are logically going to take the matter more seriously as they get older. When you do this the totality of the legal matters that you may be facing as reach your twilight years will inevitably enter your consciousness. The stark reality is that some of these things are not especially pleasant to consider, but if you stick your head in the sand you can make a challenging situation much worse for you and your family members.

One of the issues of which we speak is loss of mental capacity due to Alzheimer’s disease. Of course everyone is aware of the existence of this disease but few people are cognizant of just how far-reaching it has become. According to the Alzheimer’s Association some 13% of people who reach the age of 65 are Alzheimer’s sufferers. The Alzheimer’s Association’s 2010 study indicates that no less than 43% of people who are at least 85 years of age have Alzheimer’s disease. It is relevant to note that this age group, termed the “oldest old” in geriatric circles, is the fastest-growing age group in the United States.

Alzheimer’s disease causes dementia which robs its victims the ability to make sound medical and financial decisions. A Catch-22 exists here because those who are suffering from dementia may not recognize it. Therefore, it is important to plan for possible incapacity early on, and this can be done through the execution of a durable medical power of attorney and a durable financial power of attorney. With these documents you name representatives that you empower to make decisions in your behalf should you become unable to do so due to incapacitation.

If you were to fail to make such preparations and be deemed incompetent by the court a guardian would be appointed to handle your affairs and you would become a ward of the state. Most people would prefer to choose their own representatives, so if you do not have an incapacity plan in place you may want to arrange for a consultation with an experienced estate planning attorney and execute these important documents.

Ryan, Hicks, Cumpton & Cumpton LLP is a member of the American Academy of Estate Planning Attorneys.

Everyone, age 18 or older, needs powers of attorney to take care of matters if they become incapacitated.  If you don’t have powers of attorney and you become disabled, your loved ones will have to pay to go to court.

This is called “guardianship” (or “conservatorship,” in some states).  You may also have heard it called “living probate.”  The process is heartbreaking, stressful, time consuming, expensive, and public.  Most people want to avoid guardianship.

There are three main kinds of powers of attorney

If you have minor children, you need a child care power of attorney.  And, everyone needs both financial and medical powers of attorney.

Child care power of attorney

A child care power of attorney authorizes those you name as guardians in your will to care for your children during your lifetime if you are incapacitated.  This means that your chosen guardians will make welfare, medical, educational, and life-style choices for your children.

Remember, your will is not effective until you die.  If you don’t have a child care power of attorney in place, the courts will decide who will care for your children and it may not be who you would choose.

Financial power of attorney

The financial power of attorney appoints an agent (and successor agents) to act on your behalf if you are unable to manage your finances and your day to day business affairs.

The documents contains a laundry list of all kinds of authority that your agent has such as paying bills, managing investments, entering into contracts, selling real estate, making gifts, and the like.

Health care power of attorney

The health care power of attorney combined with a HIPAA release allows your chosen agent (or successor agent) to make health care decisions on your behalf if you are not able to make those decisions yourself.

To get these powers of attorney in place, consult with a qualified estate planning attorney.

Ryan, Hicks, Cumpton & Cumpton LLP is a member of the American Academy of Estate Planning Attorneys.

As your parents continue to age, it’s important to know that they are prepared for the future and that they have an estate plan in place.  Not planning could result in serious problems down the road.

Take the time to discuss future planning with your parents.  Look at the tips below for pointers.  If you have any questions about helping your parents create an estate plan, consult with an estate planning attorney.

• Ask your parents what legal documents that they have in place.  Your parents should have an entire estate plan created.  This includes having medical and financial powers of attorney so that your parents are able to have a love one represent them during their time of need.
• Discuss medical wishes with your parents. It’s important that your parents express their wishes for certain medical procedures and treatments.  Do your parents want to remain on life support?  If they have not thought about this planning yet, they should consider a living will.  It can be comforting to know that your parents’ wishes will be followed.
• Ask your parents about their long term care wishes. Would they prefer to live in a care facility or stay at home and receive in-home care?  You should ask your parents to discuss the certain activities that are important to them so that if long term care is needed, you can pick a program that meets their needs.
• Discuss finances with your parents. You want to make sure that you are parents are still able to handle their finances.  Make sure that they aren’t falling behind on bills or having trouble handling financial affairs.  It’s also a good idea to have a general idea of what assets your parents have.

Take the time to sit down and discuss the need for planning and an estate plan.  Make your parents feel more comfortable about the future by helping them put a plan in place.  If you have any questions about helping your parents create an estate plan, consult with a qualified estate planning attorney.

Ryan, Hicks, Cumpton & Cumpton LLP is a member of the American Academy of Estate Planning Attorneys.

Many elderly Americans need in home extra assistance with daily activities.  If you have an elderly loved one, you probably often worry about his or her safety and level of care.  It can be hard to know whether your loved one is receiving the proper care that is needed.

Do you think that your loved one may need in home care?  It’s important to understand the warning signs so that you can get your loved one the help that is needed.  Take a look at the guide below to learn more.  If you have any questions about the need for in home care, consult with an elder law attorney.

• Does your loved one always fall or slip?
• Is your loved one unable to perform personal hygiene tasks?
• Is your loved one unable to handle tasks around the house?
• Does your loved one need help preparing meals?
• Does your loved one have serious health problems that require attention?
• Is your loved one having trouble remembering to take medications?
• Is your loved one afraid to ask for help?

If you answered yes to any of the above questions, your loved one may benefit from in home care.  This service can allow your loved one to get assistance with daily activities and be able to live a more comfortable and stress-free life.

Consider your loved ones specific needs.  Make sure that you research various in home care services to find the best program for your loved one.  It’s important to choose a trustworthy and reliable company.  You will also want to explore different financing options for your loved one’s care.

It’s important to get your loved one the help that he or she needs.  If you have any questions about in home care, consult with a qualified elder law attorney.

Ryan, Hicks, Cumpton & Cumpton LLP is a member of the American Academy of Estate Planning Attorneys.

What are powers of attorney?

Powers of attorney are legal documents that allow another person or entity (i.e. trust company) to act on your behalf in all kinds of day to day business matters, medical matters, child care, or for another particular purpose. 

What are the benefits of a power of attorney?

Powers of attorney keep you, your family, and your money out of court.  It avoids a court guardianship/conservatorship process.  Court processes are expensive, stressful, and public.

How do I get a power of attorney?

Powers of attorney are part of the estate planning process.  An estate planning attorney will ensure that you have the powers of attorney appropriate for your particular needs.

How would you describe the different kinds of powers of attorney?

A medical power of attorney authorizes a health care agent to make medical decisions on your behalf if you are not able to make those decisions yourself.

A financial power of attorney authorizes an agent to manage your assets and day to day business affairs.  It is usually effective immediately.  If you don’t want it effective until it’s needed, you can execute a “springing” power of attorney.  It “springs” to life upon your disability.

A child care power of attorney authorizes an agent to make medical, school, and other decisions for your child and have custody of your child.  It is effective if you are alive but disabled and unable to care for your children.

Other powers of attorney for a particular purpose would be for a real estate closing, business deal, or funding your revocable living trust.

Who should as I choose as my power of attorney agent?

Your agent under your medical power of attorney should care about you and be able to effectively communicate with medical professionals.

Your financial agent would be the same person you name as your disability and death trustees.  This person cares about you, is a good record keeper, and can communicate effectively.

The child care power of attorney agents would be the same people you name as guardians of your children in your will.  They should love your kids and be able to raise them as closely to how you would raise them as possible.

If you have additional questions about powers of attorney, consult with a qualified estate planning attorney.

Ryan, Hicks, Cumpton & Cumpton LLP is a member of the American Academy of Estate Planning Attorneys.

If you think, “My Mom Needs Help,” it is time for incapacity planning.   It’s a scary thing when you see your parents declining and realize that they need help managing their day to day affairs.  If you’re like most people, you are unsure how to proceed, how to offer help, and what legal action should be taken.  Estate planning attorneys, doing incapacity planning, often hear the statement, “My Mom Needs Help.” 

Immediately, call a qualified estate planning attorney to get an estate plan (with incapacity planning)  in place (or to update your mom’s current plan) so that you or another trusted helper is legally able to manage your mom’s personal business affairs and medical decisions if she is not able to make those decisions on her own.  The estate planning attorney can also refer you to services for the elderly to ease your burden and stress.

A financial power of attorney and trust can authorize trusted helpers to pay bills, manage assets, and make household decisions such as hiring in-home medical care, a housekeeper, or dog walker.  A medical power of attorney authorizes a trusted helper to make medical decisions on your mom’s behalf if she can’t make those decisions herself. 

If proper estate planning is not in place and your mom does indeed become “disabled,” meaning that she is unable to manage her day to day affairs and business matters, she is unlikely to have the legal capacity to execute estate planning documents.  Therefore, a court guardianship proceeding will be necessary to appoint someone to act on her behalf. 

Guardianships are a loss of control because the court will take over your mom’s assets and decides who is in charge of the assets.  Instead of appointing a family member, the court may appoint a guardianship attorney to act on your mom’s behalf.  These proceedings are expensive, time consuming, and public. 

If your mom’s bank and investment companies allow a trusted helper to have signature authority on an account, it would be wise to do so.  However, never put your name on an account or asset as a joint owner without consultation with a qualified estate planning attorney.  There are many perils of joint ownership.

Lastly, it would be prudent to ensure that your mom’s institutions will honor her power of attorney.  Some financial institutions want your mom to use their power of attorney document so they don’t have to analyze the validity and provisions of each power of attorney that comes their way. 

If your mom needs help, it is time for incapacity planning.  Consult with a qualified estate planning attorney immediately.

Ryan, Hicks, Cumpton & Cumpton LLP is a member of the American Academy of Estate Planning Attorneys.

The guardian over a person or ward in Florida has specific responsibilities to the ward and the state. The guardian who has authority over the ward’s property must:

• Inventory the property
• Invest it wisely
• Provide for the support of the ward
• Make an annual report to the court and get court approval for certain financial transactions.

The guardian over the ward’s person exercises those rights of the ward involving decisions regarding

• Medical care, mental and personal care
• Decisions as to where the ward shall live
• Present to the court of a detailed plan as to the ward’s care annually.

Guardians may be required to complete a court approved training course. Their annual reports are filed with the clerk’s office and any guardian found not fulfilling their duty can be removed. In some circumstances, a guardian can be required to post a bond. Guardianships do not have to be permanent, they can be dismissed if the ward’s incapacity changes. A Guardian can also request that they be removed as guardian if they fill they are no longer capable of being a guardian.

In cases with minor children, the parents of the child are the natural guardians of minor children. In circumstances where the parents of minor children die are become incapacitated, the court will order a guardian over the children. Persons appointed as guardians in a person’s will are given preference by the Court. The Court also will appoint a guardian over the property of a minor who receives $15,000 or more in an inheritance, lawsuit, or insurance settlement.

Consult with a competent legal counsel experienced in matters related to guardianship if you need to file a guardianship or wish to name a guardian of your minor children in the event of your premature death or incapacity.

Ryan, Hicks, Cumpton & Cumpton LLP is a member of the American Academy of Estate Planning Attorneys.

A petition for Guardianship in Florida must be filed in the Circuit Court. The guardianship is the legal proceeding by which a person or entity is appointed guardian over an incapacitated adult also known as the ward.

• Any adult person can file a petition for guardianship over a person they allege to be incapacitated by setting forth in their petitions the grounds for why they believe a person may no longer be capable of handling their personal or financial affairs.
• In Florida, an entity such as a bank or other financial institution will only be allowed guardianship over a persons’ property.
• Once a petition if filed the Court appoints a committee of three persons, two of which are doctors and the third being a person who by knowledge, skill, education, or training can report its findings to the court
• The examination of the incapacitated person must include
  • a physical examination,
  • a mental health examination and
  • A functional assessment
• An attorney is also appointed to represent the alleged incapacitated person. If the person is found not to be incapacitated in any way then the petition is dismissed. If the person is found to have some type of incapacity an incapacitation hearing is held to determine the nature of the persons’ incapacity and a guardian will be appointed at the end of the hearing.
• Any adult resident of the state of Florida can act as guardian. Additionally the court will appoint a close relative of the ward even if they do not reside in Florida. The Court may not appoint a guardian in any circumstance in which a conflict of interest may occur.

Ryan, Hicks, Cumpton & Cumpton LLP is a member of the American Academy of Estate Planning Attorneys.