Nov 23, 2018

Parents Should Designate Guardian For Minor Children

Despite the fact that we are “Elder Law Attorneys,” we are also traditional estate planners helping adults of all ages make plans for the future. Naturally, our clients include parents of young children who want to make sure their children are well cared for if anything happens to them, whether through death or incapacity. If you have youngsters, do not procrastinate when it comes to creating these important plans. 

Here are the basic components that should be included in your plan:

Designate a Guardian 
Designating a guardian for your minor child is essential. This protects your child and will relieve you of worrying about all the "what ifs" should something happen to you. Designating a guardian can even benefit your extended family: Numerous legal battles have ensued when grandparents from different sides of the family or other family members vie for custody of an orphaned youngster.

There is only one way to name a guardian for your minor child: through a Last Will and Testament. When the Will is admitted to probate, the court will customarily honor the parents’ wishes, unless the designated guardian is found to be grossly unfit.

Issues to Consider In Selecting a Guardian 
What should you consider when selecting a guardian? It may be an easy choice if your sister lives around the corner from you, has a child your child's age, adores your child, and everyone gets on famously. But the choice is often not so simple. Here are a few of the issues to consider when deciding on a guardian for your child: 
  • Grandparents often come to mind as the first choice. But take into consideration their temperament, their health, their age. Are they young enough to properly care for active toddlers? Will they be too advanced in age when your child is a teen? And if there are two sets of grandparents, which one is most likely the best choice?
  • What are the prospective guardian’s moral values, religious values, lifestyle? Are they in line with yours? Is he/she going to point your child on the path you have in mind?  
  • Does the person have a job that keeps them away from home much of the time?
  • Does the prospective guardian have children of his/her own? Will that be a plus or a negative? Have you observed how the person is raising his/her own children? 
  • Where does the person reside? If you pass away when your child is an infant, it won’t matter much where the guardian resides. But older children tend to do better if they can remain in their community, attend the same school, and maintain existing friendships.  
  • Don't lock yourself into considering only married couples. A single individual who loves your children and has the capacity to care for your them may be the best choice. If you are considering a married couple, does their marriage appear stable? If the couple splits up, who will get your child?  
  • Have you talked to the prospective guardian to make sure the person is willing to serve? However remote the possibility that the person will ever have to step up to the plate, this is not a responsibility to be taken lightly. 
  • Even if you are divorced, you will want to designate a guardian in the event that your ex-spouse can’t or won’t serve. You should also appoint a back-up guardian, in case your first choice cannot serve.

Designate a Guardian of the Child’s Property 
In addition to designating a personal guardian for your child, you will also need to name a Guardian of The Child’s Property. This is the person(s)  who will manage your child’s money. The child’s personal guardian could serve in this capacity, but you may prefer to assign the jobs to different individuals.
Also, consider setting up a trust for your child. You can include a provision directing your chosen trustee to release the moneys in a staggered fashion. Without a trust, your child will receive whatever you leave him as a lump sum when he/she attains the age of 18. At that age, your child may not be sufficiently mature to handle a large sum of money.   

Create a Designation of Health Care Surrogate 
You should execute a Designation of Health Care Surrogate For a Minor Child, particularly if you tend to be away for extended periods on business or vacation, or if you entrust your child to someone else for extended periods. This allows you to designate one or more persons to make your child’s health care decisions if you cannot be contacted. 

Nov 7, 2018

Film "What They Had" Focuses on Family Coping With Alzheimer's Disease

Update 11/29/18: This film is no longer playing locally.

With Alzheimer's Disease and related dementias on the rise, the new film "What They Had" will resonate with many American families coping with caregiving responsibilities. First-time writer-director Elizabeth Chomko has loosely based the film on her own family. Chomko's grandmother was diagnosed with Alzheimer's seventeen years ago and died just recently.

The film stars Blythe Danner as the family matriarch who has Alzheimer's. The family situation reaches a crisis point when she wanders out in the snow wearing only pajamas. Her daughter, portrayed by Hillary Swank, returns to her hometown to help out, at the urging of her brother, played by Michael Shannon. The siblings clash over caregiving responsibilities, and what is best for their mother and for themselves. Complicating the scenario is their father, played by Robert Forster, who refuses to consider placing his wife in a facility. 

For actors Danner and Swank, the film was particularly meaningful. Both have had personal experience caring for ill family members. Danner cared for her late husband Bruce Paltrow, and Swank, for her father.

This family dynamic will likely ring true for anyone who has faced the challenge of caring for a parent, spouse or other loved one with Alzheimer's. Among those challenges is how to pay for the extraordinary costs of long-term care that many Alzheimer's patients will eventually require. In Florida, the median cost of a private room in a long-term care facility is now over $100,000 (2018 Genworth Financial Cost of Care Survey). The attorneys of The Karp Law Firm counsel many families in this crisis, and can often help them tap into Medicaid benefits and/or Veterans Aid and Attendance benefits before losing everything to nursing home costs. 

Click below to listen to an interview with the actors discussing caregiving challenges, Alzheimer's Disease, and their roles in the film.

Nov 1, 2018

Beneficiary Designations: So Much Can Go So Wrong If They're Not Right

I was contacted some months ago by  "Patricia." She had read my Palm Beach Post article about 401K beneficiaries and it immediately reminded her of a situation that had occurred in her own family.  She suggested my readers would benefit from hearing her story, and I agreed. Here it is:

Patricia's brother "Al" was married and lived in Florida. The couple's only child, "Jennifer," was an infant when Al and his wife divorced. Just months after the divorce, Al's ex-wife remarried. She took Jennifer and moved to Oregon with her new husband. Al remained in Florida. With the distance, the cost of travel and the heavy demands of Al's job, he and his daughter had virtually no contact as she grew up. (This all unfolded before the era of telecommunications; there was no internet , no Skype, no smart phones, etc.) 

When Jennifer was 10, Al's ex-wife called him to say her husband wanted to adopt Jennifer, and Jennifer wanted that, too. Would Al consider giving up his parental rights? Al's immediate response was no. But after some soul-searching, he concluded that for all intents and purposes, Jennifer considered her stepfather to be her real father. Believing he was making the unselfish choice, Al reluctantly agreed to give up his parental rights. Jennifer was adopted by her stepfather.

Al never remarried. He died several years ago without a will (intestate), leaving behind just one asset: a 401k worth about $600,000. It had no beneficiary designation. Jennifer was in her early 40s at the time of his death.

The personal representative named to handle Al's  estate contacted the administrator of Al's 401k plan. The 401k administrator asked the personal representative if the decedent had any children, and the personal representative replied yes, the decedent had one "adopted" daughter. The administrator interpreted this to mean that Al had adopted a daughter - not given one up for adoption.

Under Florida intestacy law, it therefore was Al's sister Patricia - then Al's only living relative - who should have inherited the 401k. Jennifer was not Al's rightful legal heir. But because of the miscommunication between the personal representative and the plan administrator, the 401k funds were released to Jennifer. 

Patricia called Jennifer to talk over the situation. Jennifer would not consider giving Patricia any of the money, saying it was "obvious" that her biological father wanted her to have it. Patricia subsequently contacted an estate litigation attorney to pursue the matter, but abandoned the effort after learning that her case was by no means a sure thing, and that the legal fees would be very steep.

Of course, it is altogether possible that Al wanted his biological child to get his 401k. On the other hand, he never took any action to make that happen, so no one will ever know what he truly had in mind.

Notwithstanding the unusual nature of this family's experience, it underscores the importance of getting your beneficiary designations right, and keeping them updated as the years go by. This is why our lawyers request that our estate planning clients inform us about all their assets and beneficiary designations in detail. It's not that we're nosy. We are on your side and want to make sure your hard-earned assets end up with whom you want!

Oct 18, 2018

A Veteran With a Sky-High Mission!

All our clients have interesting life stories. Many of them are veterans. With Veterans Day around the corner, I want to share the fascinating story of one of our many clients who served with dignity and dedication. With her permission, I present to you the remarkable Bernice "Bee" Haydu.

I had the privilege of meeting Mrs. Haydu in 1994, when she and her late husband Joseph came to the Karp Law Firm for legal advice. Now 97 and two decades on from our original meeting, Mrs. Haydu remains our client and as vibrant as ever.

After graduating from high school in New Jersey in the 1930s and working as a secretary, Mrs. Haydu (nee Falk) was eager for more adventurous pursuits. Her brother was in the Army Air Corps, and she wanted to be active in the war effort, too. She took flying lessons, a fateful decision. World War II began in 1941, and there was a shortage of pilots.  At the urging of Jacqueline Cochran, the Womens Airforce Service Pilots (WASP) was established. When Haydu learned the program was looking for recruits, she wasted no time in applying. Of 25,000 applicants, she was one of just 1,803 women who were accepted; and one of only 1,074 who successfully completed training.

After seven months of military training (the same as that of male cadets), she was sent to the Training Command as an Engineering Test Pilot and Utility Pilot. Among her tasks was flying and testing overhauled aircraft and ferrying military personnel from location to location across the country. Although the work of a WASP was considered non-combat, the job was not without perils. Thirty-eight women were killed during the program.

Yet even with the dangers and their dedication, the WASPs were not considered official members of the military. Haydu and her colleagues were classified as civilian volunteers, and denied the benefits afforded to military personnel. They were required to pay their own way to Texas for training as well as return flights. And when a WASP died in the line of duty, the family even had to pay to have the body sent home.

The WASPs had been led to believe that once the program disbanded, they could continue their aviation careers and would be welcomed into the military. Sadly, political opposition prevented that from happening. When the war ended, the women went back to their prewar lives. Well, most of them did. Haydu remained passionate about flying. Her post-war life included working as a flight instructor - and even marrying Joseph, an aviator also.

She took on another job, too. As the years went by Haydu increasingly set her sights on another sky-high mission: getting recognition for the WASP's contribution to the war effort, and securing veterans benefits for them, as they had been promised if the program was successful, which it was. After decades of organizing her fellow ex-WASPs, making public appeals and nonstop lobbying, her efforts bore fruit in 1977. That is the year President Jimmy Carter signed the GI Bill Improvement Act, which included a provision to award the WASPs veteran status and give them the corresponding veterans benefits.

But that was just the beginning. More recognition was in store for the WASPs, and for Haydu in particular. In 2009, Congress passed a bill that awarded the WASPs the Congressional Medal, the nation's highest civilian honor. There were about 300 surviving WASPS at that time. Haydu and several of her fellow WASPs went to Washington to mark the occasion. She was personally greeted by President Obama. She says she had the honor of actually pulling out his chair for him as he seated himself at his desk to sign the bill. In his statement, President Obama said: "The Women Airforce Service Pilots courageously answered their country's call in a time of need while blazing a trail for the brave women who have given and continue to give so much in service to the nation since. Every American should be grateful for their service, and I am honored to sign this bill to finally give them some of the hard-earned recognition they deserve."

President Obama gets seated at his desk to sign the bill conferring the Congressional Medal on the WASPS. Bee Haydu (to his right) pulls out the chair for him.

Other honors have piled up, too. Haydu was on hand in 2008 for the opening of the "Fly Girls of World War II" exhibit at the Women in Military Service for America in Arlington, Virginia. She received an Honorary Doctorate Degree from Vaughn College of Aeronautics and Technology in New York City. In 2012 she was inducted into the Women in Aviation International Pioneer Hall of Fame. And this year, she traveled to New Orleans to receive the 2018 Silver Service Award from the National World War II Museum in recognition of her work in the WASPs as well as her fight for gender equality.

Mrs. Haydu also wrote a book. "Letters Home:1944 -1945," is a compendium of the letters she wrote home while serving as a WASP. Thank goodness her mother saved them! The book may be purchased through her website.  Haydu is currently working on her second book. 

And if you're ever visiting the National Air and Space Museum in Washington, take a look around on the second floor: you'll find Mrs. Haydu's WASP uniform on display.

We thank Mrs. Haydu and all veterans for their service to the country. You can learn more about the history of the WASPs at the website of the National WASP World War II Museum in Sweetwater, Texas. 

For information about veterans Aid and Attendance benefits that can help aging and disabled veterans pay for the care they deserve, check out our web page. (The benefits program has just changed its eligibility requirements.) 

Oct 6, 2018

With Comedian Tim Conway Incapacitated, A Familiar Family Drama Unfolds

On November 2 a Los Angeles judge is scheduled to decide who will serve as guardian for Tim Conway: His wife of 33 years, Charlene, or his daughter from his first marriage, Kelly Fusco. The case has been postponed until then while Conway recovers from a September operation to alleviate water on the brain.

We of a "certain age" will remember Conway's hilarious performances on the long-running Carol Burnett Show. Unfortunately, at 84, Conway is no longer up to his old antics. He is suffering from severe dementia and according to reports, is now nonverbal.

Kelly has alleged that Charlene is not providing appropriate care for her father, and is concerned that Charlene will move him into a substandard facility, and out of the skilled nursing facility he resided in up until his surgery. That facility provides registered nurses around the clock as well as speech therapy for Conway's swallowing difficulties. Conway also has a personal 24-hour caregiver. According to reports, the cost was $24,000 per month.

"The reason I am trying to get conservatorship," Kelly has said, "is to make sure that my dad can live his life to the fullest... The person making decisions for his care must be competent. There are others around him that have only their best interest at heart and not my dad's. That's why I want to be the one in charge of his care."

Charlene has denied Kelly's allegations and says she does not intend to move her husband to a different facility. She also claims her husband signed a durable power of attorney and health care documents giving her sole authority as his decision maker. While the case is pending, Kelly has been blocked from seeing her father. She is one of six children from Conway's first marriage.

Longtime readers of this blog know that in cases of second marriages, legal struggles of this nature are not uncommon. When it unfolds in a celebrity's family, it makes headlines. In recent years I have written about similar conflicts in the family of musician Glen Campbell, radio personality Casey Kasem, comic book titan Stan Lee, entertainment mogul Sumner Redstone, and actor Peter Falk.

Planning for incapacity is important for everyone, but as headlines of this nature always demonstrate, even more so when a second marriage is part of the family dynamic. Make sure you consult an experienced estate planning attorney to minimize the chances of this unfortunate situation occurring in your family. 

Sep 23, 2018

Honor Flight October 13 to Include Vietnam Veterans

The last of the 2018 Southeast Florida Honor Flights takes on October 13, 2018. The program began several years ago with the mission of escorting World War II and Korean War veterans, free of charge, to Washington. D.C. to see the memorials that honor their service and sacrifice. The October flight is the first time Vietnam War veterans will participate; 27 of them will join 14 World War II vets and 41 Korean War vets. Participants represent all branches of the military. To date, Southeast Florida Honor Flights has hosted 2,650 veterans from Palm Beach, St. Lucie, Martin, Indian River and Okeechobee counties.

Honor Flights is a non-profit organization and has no paid employees, relying on donations to fulfill their mission. If you would like to make a donation, click here. If you would like to volunteer with the organization, click here. If you would like to refer a veteran who deserves an honor flight, click here.

Also key to the program are the guardians who accompany elderly vets on these trips. Many of the veterans are in wheelchairs or need assistance walking safely. Priority is given to guardians who are family members of participants, those with medical training, and active duty military. The cost is $400, and includes mandatory training. If you would like to be a guardian for an upcoming flight, click here.

Every Honor Flight begins early in the morning, ending when the veterans touch down at  Palm Beach International Airport. The tradition is for them to be given a heroes' welcome. Anyone who wants to participate in the October 13 welcome should be at Concourse A-B on Level 2 with enough time to greet the arrivals. The plane is scheduled to arrive at around 7:20 p.m. Banners, signs, cheers and smiles are welcome!

You can see photos of prior honor flights here, here and here. 

Burt Reynolds Kept His Estate Planning Private With a Trust

Actor Burt Reynolds was raised in Riviera Beach, Florida, the son of a police chief. After an injury sidelined him from playing football at Florida State, he pursued acting. His career took off in the 1970s and he went on to star in over 200 movies, winning an Oscar for "Boogie Nights."

When Cosmopolitan editor Helen Gurley Brown asked the charismatic hunk to pose nude for the magazine's centerfold, he agreed immediately. For that iconic 1972 photo, he put it all out there - well, almost - lounging on a bearskin rug. 

But privacy was important to the actor, at least as far as his estate plan goes. His died on September 6 following cardiac arrest at his Jupiter home. His will, signed in 2011, was filed in Florida probate court. It indicates all the actor's assets are in a trust for the benefit of his son Quinton, age 30. Unlike a will, a trust is a private document, which is among the many reasons for its popularity as an estate planning tool. The will states: "I intentionally omit him from this, my Last Will and Testament, as I have provided for him during my lifetime in my Declaration of Trust." 

The 82-year-old actor's net worth is rumored to be around $5 million, which doesn't sound like a great deal for someone whose celebrity spanned so many decades. Reynolds had a very public history of money woes. His investment in a restaurant chain put him millions of dollars in debt. At one point he bought a private helicopter and jet and had two pilots on standby at all times. He declared bankruptcy at least once. In a 2015 Vanity Fair interview, he said:  I've done well in terms of owning property and things like that. But I haven't been somebody who's been smart about his money."

Since the current federal estate tax exemption is $11.2 million, it is unlikely his estate will be affected by estate taxes. Florida has no estate tax.

Reynolds' will names his niece, Nancy Lee Brown, as personal representative, and his great nephew Brian Ritchey Brown and great niece Tracy Erin Rogers as back-ups.

Aug 23, 2018

Aretha Franklin, Queen of Soul, Dies Intestate

Singer Aretha Franklin passed away on August 16, 2018. The 76-year-old "Queen of Soul" died at her Detroit home of pancreatic cancer, surrounded by family.

Winner of 18 Grammy awards and known for iconic songs like "Respect," Franklin was intensely private about her life and her finances. A 2016 New Yorker profile revealed that she asked for payment for a performance in cash, and would keep the money she received in a handbag onstage during her performance.

It looks like the era of privacy is over for Franklin and her family, because she died intestate (without a will). This past week, her sons Edward Franklin, Kecalf Cunningham and Ted White, and the guardian of her oldest son Clarence Franklin, filed papers in a Michigan Probate court indicating that their mother did not leave a will or trust. Her estate will be probated, and the details open to public inspection. 

The attorney who represented Franklin in her entertainment dealings, Don Wilson, has said that he repeatedly encouraged his client to create an estate plan, with no luck. "I was after her for a number of years to do a trust," he said. "It would have expedited things and kept them out of probate, and kept things private." Like many Americans, Franklin resisted dealing with the issue - even though she had plenty of time to do so after the diagnosis of pancreatic cancer that would ultimately take her life.

In addition to opening up the family's finances to public view, Franklin's failure to plan opens the door to several other potential issues for the family: 

Estate taxes: Without tax planning, Uncle Sam likely gets a bigger bite of federal estate taxes than it would if she engaged in appropriate tax planning. This will leave less for her family. The current estate tax exemption for an individual is $11.2 million; the difference between that and the $80 million currently in her estate could be taxed up to 40%. 

Distribution of the estate: Michigan intestacy law will govern how Franklin's estate is divided. She was not married at the time of her death, so the estate will be divided equally among her four sons. This seems equitable on the surface, but may actually be a negative for her oldest son, Clarence, who has special needs and may require more money than his brothers. 

Royalties may complicate the estate: Franklin had rights to an extensive song catalog, so that $80 million is probably the tip of the iceberg. Managing the estate could get more complicated as time goes on.

Fortunately, it looks like Franklin's four sons get along well, so that's a good omen for the future. Of course, time will tell.

Please see a competent estate planning attorney to create your own estate plan, so that your family does not need to deal with unnecessary complications and loose ends when you are gone!

Aug 12, 2018

Anthony Bourdain not yet divorced when he died, potentially complicating estate plan

Anthony Bourdain's estranged wife, Ottavia Busia, filed his will in New York Surrogate Court in July. The celebrity chef committed suicide in June, while on a film shoot in France. He was 61.

Busia and Bourdain married in 2007 and had a daughter, Ariane. According to Bourdain, their relationship was always amicable, but they effectively led separate lives. They officially separated in 2016 and were in the process of divorcing when Bourdain died - and therein is a potential problem for Bourdain's estate. Because Busia was still officially his spouse, she may be entitled to more than he left her under his will. Litigation is a possibility.

Busia is the executor of his will. Bourdain appears to have had about $1.2 million in assets at the time of his death. This includes $425,000 in cash and savings, $500,000 in intangibles such as royalties and residuals from his books and television show, $35,000 in brokerage accounts, and $250,000 in personal property. 

Bourdain left the bulk of his assets to his daughter. The will also calls for the creation of a trust for her benefit. She is to receive a distribution at age 25, another distribution at 30, and the rest of the money will be released to her age 35. Distributing the money through the trust prevents Ariane from receiving her  inheritance in full at age 18, when she may not yet be mature enough to properly handle finances.

Aug 3, 2018

New 1040 Tax Form: Really Simpler?

In keeping with the administration’s vow to simplify tax filing, the Internal Revenue Service is putting finishing touches on its revised 1040 income tax form. The new form has been touted as postcard-sized, and is to replace the current 1040,1040A and 1040EZ forms. About three-quarters of taxpayers currently use one of those three forms.

So does the new form ease taxpayers' burden? Maybe - depending on who you are. Although not quite as small as a postcard, the new form has only 23 lines, down from the 79 lines of the current one. Because the new tax law roughly doubles the standard deduction, many taxpayers will not bother to itemize. For them, the new form will be simpler.

For others, the new form won't simplify much. For example:
  • The 19 million taxpayers who according to the Tax Policy Center will continue to itemize, will still need to complete one or more of six associated tax schedules. 
  • The form has space for five forms of income: wages, salaries, tips, etc;  interest; dividends; pensions; IRAs; annuities; and Social Security. If you have other types of income - for example, business income or capital gains income - you will still need to fill out additional schedules. 
  • According to a recent article in Inc, some very common tax strategies will also require completion of additional tax schedules - for example, reporting retirement savings contribution credits.
You can read more about the new form in this article in the Wall Street Journal(sign-in required to read).

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