ESTATE PLANNING FOR GUARDIANSHIP AND CONSERVATORSHIPS

Similar documents
SETTLEMENT AGREEMENTS IN ESTATE & PROBATE DISPUTES

BUSINESS SUCCESSION PLANNING FOR ESTATE PLANNERS

"CRUMMEY POWERS": DRAFTING & USING THESE ESSENTIAL ESTATE PLANNING POWERS

LIQUIDITY PLANNING IN ESTATES AND TRUSTS

TRUST AND ESTATE PLANNING WITH LIFE INSURANCE

BUY-SELL AGREEMENTS, PART 1 & PART

PLANNING WITH GRATS First Run Broadcast: August 1, :00 p.m. E.T./12:00 p.m. C.T./11:00 a.m. M.T./10:00 a.m. P.T.

HOLDING BUSINESS INTERESTS IN TRUSTS First Run Broadcast: June 21, :00 p.m. E.T./12:00 p.m. C.T./11:00 a.m. M.T./10:00 a.m. P.T.

WARRANTS, OPTIONS & OTHER INCENTIVES IN BUSINESS TRANSACTIONS

Day 1 March 26, 2015:

INNOCENT SPOUSE DEFENSE

STRUCTURING FOR-PROFIT/NON-PROFIT JOINT VENTURES

ESTATE & TRUST PLANNING WITH THE NEW 3.8% TAX ON NET INVESTMENT INCOME

PLANNING WITH LIFE INSURANCE TRUSTS First Run Broadcast: July 2, :00 p.m. E.T./12:00 p.m. C.T./11:00 a.m. M.T./10:00 a.m. P.T.

SOPHISTICATED CHOICE OF ENTITY, PART 1 & PART

DRAFTING PREFERRED STOCK/PREFERRED RETURNS

INCOME AND FIDUCIARY TAX ISSUES FOR ESTATE PLANNERS, PART 1 & PART

REPS AND WARRANTIES IN BUSINESS TRANSACTIONS

2014 NONPROFIT LAW/EXEMPT ORGANIZATIONS UPDATE

DEFINED VALUE CLAUSES: DRAFTING & AVOIDING RED FLAGS

WHAT BUSINESS LAW PRACTITIONERS NEED TO KNOW ABOUT THE AFFORDABLE CARE ACT

Day 1 October 21, 2015:

FIXING TRUSTS: TECHNIQUES TO ALTER A TRUST WHEN CIRCUMSTANCES HAVE CHANGED

ESTATE PLANNING FOR ELDERLY, PART 1 & PART

ESTATE PLANNING AND IRAS First Run Broadcast: November 12, :00 p.m. E.T./12:00 p.m. C.T./11:00 a.m. M.T./10:00 a.m. P.T.

ESTATE PLANNING FOR PORTABILITY First Run Broadcast: January 21, :00 p.m. E.T./1:00 p.m. C.T./12:00 p.m. M.T./11:00 a.m. P.T.

Estate Planning Concepts

Guardianships and Special Needs Planning

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

The Consumer s Guide to Special Needs Planning

Bryan Health March 27, 2014 Wills, Trusts and Fiduciary Administration (and Other Life and Death Issues)

Capital Contributions, Capital Calls & Finance Provisions in Companies Teleseminar January 24, :00PM 2:00PM 1.0 MCLE GENERAL CREDITS

A WILL IS NOT ENOUGH by Kelly A. Thompson

Form 1-2, Estate Planning Questionnaire (for Married Clients Where Both Spouses Will Be Represented)

UNIFORM FEE SCHEDULE GUIDELINES FOR COMMISSIONERS OF ACCOUNTS APPROVED BY THE SUPREME COURT OF VIRGINIA Effective July 1, 2008

POWERLEGAL, P.A. (Formerly, The Klemow Law Firm, P.A.) PO Box West Palm Beach, FL FAX:

LLC OPERATING AGREEMENTS: DRAFTING MANAGEMENT, DISTRIBUTION & TAX PROVISIONS, PART 1 & PART

ESTATE & TRUST PLANNING FOR EDUCATIONAL EXPENSES

GUARDIANSHIP AND CONSERVATORSHIP

FIDUCIARY STANDARDS IN BUSINESS TRANSACTIONS: GOOD FAITH AND FAIR DEALING

Presented by: Christine Brown Murphy, Esquire. Zacharia & Brown P.C. Elder Law Attorneys Offices in McMurray, McKeesport and Greensburg

ASSET-BASED FINANCE, PART 1 & PART

2. What will happen to my property if I die without a will or trust?

The Importance of Comprehensive Estate Planning as Cognitive Challenges Become More Significant

Strategic Planning for Life and Death

University of Hawaii Center on Aging

STATE OF NEW JERSEY. SENATE, No SENATE JUDICIARY COMMITTEE STATEMENT TO. with committee amendments DATED: DECEMBER 17, 2015

PLANNING FOR INDIVIDUALS WITH SPECIAL NEEDS by Kelly A. Thompson Member, Special Needs Alliance

THE CLIENTS ROLE IN ESTATE PLANNING

Supplemental Needs Trusts & Related Estate Planning

HERMENZE & MARCANTONIO LLC ESTATE PLANNING PRIMER FOR MARRIED COUPLES 2019 (New York)

DRAFTING IN LLCS - THE PROMISE & PERILS OF "UNITS"

the Private Trust Company gain peace of mind Simplified Trust Solutions

Express Estate Plan SM Workbook

CLIENT INFORMATION ORGANIZER

Patricia A. Leong Attorney at Law

FREQUENTLY ASKED QUESTIONS

Appendices Senior Law Day Sponsors

ESTATE PLANNING FOR THE ELDERLY, PART 1 & PART

MICHIGAN REVOCABLE LIVING TRUST OF

SETTLEMENT AGREEMENTS IN EMPLOYMENT DISPUTES & LITIGATION

Did you ever leave baby-sitting instructions? What type of instructions would you leave if you were going away forever?

Title 18-B: TRUSTS. Chapter 8: DUTIES AND POWERS OF TRUSTEE. Table of Contents Part 1. MAINE UNIFORM TRUST CODE...

FINANCIAL DECISION MAKING

Special Needs Planning Information Guide

Estate Planning & Administration

Charitable giving issues and how to integrate with larger estate plans

If you would like you can also add a picture of the church or church activity of your choice.

SECTION 2503(C) MINOR'S TRUST

SAMPLE DECLARATION OF TRUST. The John Doe Living Trust (the Trust )

Wealth Preservation and Estate Planning for 21 st Century Families One Size Does Not Fit All

STATUTORY DURABLE POWER OF ATTORNEY

ADVANTAGES OF A LIVING TRUST

Procrastinators Programs SM

Spiegel & Utrera, P.A. Counselors & Attorneys at Law

ESTATE PLANNING DOCUMENTS RIGHT TO LIFE OF MICHIGAN

REAL ESTATE JOINT VENTURES, PART 1 AND PART

***** THE FAMILY TRUST AGREEMENT. THIS trust agreement is hereby entered between of, as Grantor and as Trustee for the Family Trust.

HERMENZE & MARCANTONIO LLC ESTATE PLANNING PRIMER FOR SINGLE, DIVORCED, AND WIDOWED PEOPLE (New York)

Estate And Legacy Planning

Medicaid Planning Client Information Summary

PLANNING WITH CONFIDENCE. Simplified Trust Solutions

Trusts and Other Planning Tools

AUTISM AND ESTATE PLANNING

WILLS. a. If you die without a will you forfeit your right to determine the distribution of your probate estate.

Glen S. Bagby Partner

JOHNSTON LEGAL GROUP PC

Life Cycle of Estate Planning

The importance of assistance

County of Ocean, New Jersey. Jeffrey W. Moran, Surrogate 118 Washington Street, P. O. Box 2191 Toms River, NJ Phone:

WILL WITH TESTAMENTARY TRUST

BEYOND ONE DAY AT A TIME PLANNING FOR YOUR FUTURE AND THE LIFETIME OF A PERSON WITH SPECIAL NEEDS

ABCs of Estate Planning. THE LEDBETTER LAW FIRM, APC 111 N. Sepulveda Blvd., Suite 330 Manhattan Beach, CA (877)

PLANNING AND SPECIAL NEEDS TRUST

Revocable Living Trust

For Preview Only - Please Do Not Copy 3. The letter also discusses the consequences of dying without a will in Texas.

ESTATE PLANNING 101. What You Need to Know About Estate Planning in Kansas and Missouri. University of Kansas Human Resources & Equal Opportunity

HERMENZE & MARCANTONIO LLC ESTATE PLANNING PRIMER FOR SINGLE, DIVORCED, AND WIDOWED PEOPLE (Connecticut)

FAMILY DATA. Name (First, Middle Initial, Last) Street Address City State Zip. Home Phone # Cell Phone # Sex Date of Birth

MASTER TRUST I THE ARC OF NEW MEXICO Pooled Trust (A Trust for Persons with Disabilities)

Transcription:

ESTATE PLANNING FOR GUARDIANSHIP AND CONSERVATORSHIPS First Run Broadcast: August 25, 2015 1:00 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.

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 05601-0100. Fax: (802) 223-1573 PLEASE USE ONE REGISTRATION FORM PER PERSON. First Name Middle Initial Last Name Firm/Organization Address City State ZIP Code Phone # Fax # E-Mail Address Estate Planning for Guardianship & Conservatorships Teleseminar August 25, 2015 1:00PM 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:

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.

PROFESSIONAL EDUCATION BROADCAST NETWORK Speaker Contact Information ESTATE PLANNING FOR GUARDIANSHIP AND CONSERVATORSHIPS William Kalish Akerman, LLP Tampa, Florida (o) (813) 223-7333 william.kalish@akerman.com Dale Noll Akerman LLP Miami (o) (305) 374-5600 dale.noll@akerman.com

GUARDIANSHIPS & CONSERVATORSHIP S William Kalish Dale Noll

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 2011. Dir: 813.209.5035 william.kalish@akerman.com 2

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: 305.982.5544 dale.noll@akerman.com 3

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

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

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

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

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

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

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

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

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

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

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

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

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

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, 2015. 17

Florida Statute s. 744.3046 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