ESTATE PLANNING FOR GUARDIANSHIP AND CONSERVATORSHIPS

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1 ESTATE PLANNING FOR GUARDIANSHIP AND CONSERVATORSHIPS First Run Broadcast: August 25, :00 p.m. E.T./12:00 p.m. C.T./11:00 a.m. M.T./10:00 a.m. P.T. (60 minutes) Use of conservatorships and guardianships in estate and trust planning is often crucial to achieving a client s goals. They may be used to preserve the assets and manage the affairs of an elderly client with dementia or young children with special needs or whose parents have died. Planning for the use of guardianships or conservatorships or adapting to their sudden necessity in the case of tragedy is complex and involves choosing the right type of trust, choosing the right fiduciary and guardian, and coordinating planning documents to provide for the financial needs of the client involved. Failure to coordinate the two can result in unintended and adverse practical and financial consequences for clients and beneficiaries. This program will provide you with a practical guide to estate and trust planning when you anticipate using a guardianship or conservatorship or when one becomes suddenly necessary. Estate and trust planning issues with guardianships and conservatorships How conservatorships, guardianships and similar trusteeships are used in planning for the elderly and children Counseling your clients about the appointment of guardians in certain circumstances Planning for elderly clients with early stage (or fears of) dementia before a guardian is appointed Planning for young or older children when appointment of a guardian is anticipated Common and costly planning mistakes when the possibility of guardianship or conservatorship is overlooked Speakers: William Kalish is a partner in the Tampa office of Akerman, LLP, where his practice focuses on advising individual clients and their families on their estate and trust plans, including wills, revocable trusts, irrevocable trusts, charitable trusts, private foundations, and limited partnerships. He also practices in probate administration, asset preservation, business succession planning for family-owned entities, and the division of business interests in the context of divorce. He is a Fellow of the American College of Tax Counsel, formerly served as chair of ABA Tax Section, and has served as an Adjunct Professor of Law at Stetson Law School teaching estate planning. Mr. Kalish received his B.A. from the University of Pittsburg and his J.D. with honors from George Washington University Law School.

2 VT Bar Association Continuing Legal Education Registration Form Please complete all of the requested information, print this application, and fax with credit info or mail it with payment to: Vermont Bar Association, PO Box 100, Montpelier, VT Fax: (802) PLEASE USE ONE REGISTRATION FORM PER PERSON. First Name Middle Initial Last Name Firm/Organization Address City State ZIP Code Phone # Fax # Address Estate Planning for Guardianship & Conservatorships Teleseminar August 25, :00PM 2:00PM 1.0 MCLE GENERAL CREDITS VBA Members $75 Non-VBA Members $115 NO REFUNDS AFTER August 18, 2015 PAYMENT METHOD: Check enclosed (made payable to Vermont Bar Association) Amount: Credit Card (American Express, Discover, Visa or Mastercard) Credit Card # Exp. Date Cardholder:

3 Vermont Bar Association CERTIFICATE OF ATTENDANCE Please note: This form is for your records in the event you are audited Sponsor: Vermont Bar Association Date: August 25, 2015 Seminar Title: Location: Credits: Program Minutes: Estate Planning for Guardianship & Conservatorships Teleseminar - LIVE 1.0 MCLE General Credit 60 General Luncheon addresses, business meetings, receptions are not to be included in the computation of credit. This form denotes full attendance. If you arrive late or leave prior to the program ending time, it is your responsibility to adjust CLE hours accordingly.

4 PROFESSIONAL EDUCATION BROADCAST NETWORK Speaker Contact Information ESTATE PLANNING FOR GUARDIANSHIP AND CONSERVATORSHIPS William Kalish Akerman, LLP Tampa, Florida (o) (813) Dale Noll Akerman LLP Miami (o) (305)

5 GUARDIANSHIPS & CONSERVATORSHIP S William Kalish Dale Noll

6 William Kalish William Kalish focuses his practice on representing individuals and businesses on a broad range of tax and business related issues. Bill assists individual clients and their families in accomplishing their short term and long term estate planning goals by planning for and creating wills, revocable trusts, irrevocable trusts, charitable trusts, private foundations, and limited partnerships. In addition, he practices in probate administration, asset preservation, business succession planning for family-owned entities, and the division of business interests in the context of divorce. He has extensive experience in representing individual, estate, and corporate clients in disputes with the Internal Revenue Service, The Florida Department of Revenue, and local government entities regarding audits, collections and other disputes, both civil and criminal. Bill assists businesses with choice-of-entity planning, the formation of business entities, corporate mergers, corporate acquisitions, and business separations. He also assists with business contracts, such as the preparation, review and negotiation of employment agreements, lease agreements, and shareholder agreements. Bill has served as an adjunct professor for estate planning at Stetson University College of Law since Dir: william.kalish@akerman.com 2

7 Dale Noll Dale Noll represents trustees, personal representatives, and beneficiaries in a wide variety of fiduciary issues and assists them in their roles as fiduciaries in administering estates and trusts. A particular focus of his practice is the representation of fiduciaries, beneficiaries, and other interested parties in high conflict, complex, and high-profile guardianship, trust, and probate matters. Dir: dale.noll@akerman.com 3

8 Planning Items Estate and trust planning issues with guardianships and conservatorships How conservatorships, guardianships and similar trusteeships are used in planning for the elderly and children Counseling your clients about the appointment of guardians in certain circumstances Planning for elderly clients with early stage (or fears of) dementia before a guardian is appointed Planning for young or older children when appointment of a guardian is anticipated Common and costly planning mistakes when the possibility of guardianship or conservatorship is overlooked 4

9 Guardianship A guardian is a surrogate decision-maker appointed by the court to make personal and/or financial decisions for a minor or for an adult with mental and/or physical disabilities. After adjudication, the subject of the guardianship is termed a ward. 5

10 Guardianship (cont.) Many states provide for the appointment of a guardian for a minor in circumstances such as where the parents die, are unable to care for a child, or if a child receives an inheritance or proceeds of a lawsuit or insurance policy exceeding the amount parents are allowed by statute to receive on behalf of their child. 6

11 Adult Guardianship Adult guardianship is the process by which the court finds an individual s ability to make decisions is impaired, therefore the court gives the right to make decisions to another person or entity. 7

12 Adult Guardianship (cont.) Often, guardianship is only warranted when no less restrictive alternatives, such as a durable power of attorney, a trust, a health care surrogate or proxy, or another form of pre-need directive, are found by the court to be appropriate and available. For example, in Florida, legislative intent establishes that the least restrictive form of guardianship is desirable, if it is in the best interest of the ward. 8

13 Types of Guardianship Emergency temporary guardian Conservatorship/guardian of the property Guardianship of an incapacitated person Guardian of a minor Plenary/full/unlimited vs. limited 9

14 Initiation of Guardianship Judicial appointment Filing of petition in court having jurisdiction Visitor/appointment of attorney for respondent (alleged incapacitated) Examination/investigation Reports Hearing Order and letters (least restrictive) Any Will or other writing 10

15 Duties of a Guardian Person Decisions regarding Ward's support, care, education, health and welfare Custody of the person Establish place of dwelling Property Manages, protects, expends, distributes assets of the protected person's estate Invests assets as though a trustee Deposits money of the estate in a financial institution acquires or disposes of assets of the estate, including real property in another state 11

16 Accountings & Reports Initial Report Requirements of annual reports for person Requirements of annual reports for property 12

17 Avoiding Guardianship Guardianship may be avoided depending on the estate planning documents in place, such as: Trusts Durable Power of Attorney Health Care Surrogate Living Will 13

18 Other Considerations Incorporating a business the guardian will only have a stock interest Buy/sell agreements can provide for management changes if a guardianship Employment agreement with a structure of how the business will continue and be funded 14

19 Sample Special Needs Trust Provisions The purpose of this separate trust is to meet the needs of the Beneficiary for supplemental services above and beyond those services provided by the government, particularly Social Security and Medicaid or other sources. My Trustees shall, in their sole discretion, determine what needs the Beneficiary has for supplemental services as my Trustees in their sole discretion believe to be necessary to maintain the Beneficiary in good health and reasonable comfort and happiness. The definition of supplemental services includes, but is not limited to, the following: 1. Provision for extraordinary medical expenses, including, but not limited to, dental expenses; 2. Provision for clothing; 3. Provision for special training; and 4. Provision for recreation and entertainment. 15

20 Sample Special Needs Trust Provisions My Trustees shall collect all income, gains, and profits from and upon the trust property, and, after deducting all taxes, fees, and expenses paid or incurred in the administration of the trust, shall use or expend the net income from the property for the benefit of the Beneficiary in accord with the purposes of the separate trust without having to make such payments through a guardian or committee. In meeting the Beneficiary s needs for supplemental services, my Trustees shall expend such income as my Trustees, in their sole discretion, determine shall best accomplish these purposes, with due regard for the Beneficiary s need for special care and training as a result of the Beneficiary s condition; provided, however, that no disbursements shall be made for any purpose which would invalidate the trust. My Trustees shall have unlimited discretion to make disbursements from principal, up to the full amount thereof, whenever in their judgment the income is insufficient for these purposes. Before expending income or principal to accomplish the purpose of the separate trust, my Trustees shall first seek to satisfy the Beneficiary s needs from any funds made available by the appropriate federal, state, and local government agencies or other services. Any undistributed income shall be added to principal. 16

21 Sample Preneed Guardian Declaration (for Adult) I,, residing in, Florida, make the following declaration naming a preneed guardian to serve in the event of my future incapacity: If I am at any time determined to be an incapacitated person, as that term is defined in the Florida Guardianship Law as it now exists or may hereafter be amended, I declare that is to serve as guardian of my person and property, to exercise all delegable legal rights and powers and to perform all the tasks necessary to care for my person and property. I further declare that it is my intent and desire that the above-named person be appointed by the Court having jurisdiction to serve without bond. IN WITNESS WHEREOF, I have hereunto this, my Declaration Naming Preneed Guardian, set my hand and seal on the of,

22 Florida Statute s Both parents, natural or adoptive, if living, or the surviving parent, may nominate a preneed guardian of the person or property or both of the parent s minor child by making a written declaration that names such guardian to serve if the minor s last surviving parent becomes incapacitated or dies. The declarant or declarants may also name an alternate to the guardian to act if the designated preneed guardian refuses to serve, renounces the appointment, dies, or becomes incapacitated after the death of the last surviving parent of the minor. The declarant must file the declaration with the clerk of the court. When a petition for incapacity of the last surviving parent or the appointment of a guardian upon the death of the last surviving parent is filed, the clerk shall produce the declaration. The preneed guardian shall assume the duties of guardian immediately upon an adjudication of incapacity of the last surviving parent or the death of the last surviving parent. Within 20 days after assumption of duties as guardian, a preneed guardian shall petition for confirmation of appointment. If the court finds the preneed guardian to be qualified to serve as guardian, appointment of the guardian must be confirmed. 18

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