Tuesday, November 19, 2013

Estate Planning for Florida Snowbirds

The latest issue of the Rhode Island Bar Journal features an article of interest to anyone involved in estate planning in the Northeast. The article, Estate Planning for Florida Snowbirds, discusses some of the financial and legal implications for New England seniors who spend their winters in Florida or retire there.

From the article: 

If a Rhode Island attorney is advising a client with interests in both Rhode Island and Florida, it is important for him or her to understand the difference and interplay between the laws of the two states, as well as neighboring states such as Massachusetts. Because most Florida retirees maintain some connection to Rhode Island (and one day may return to the Ocean State due to the death of a spouse or declining health), problems can arise if both states' laws are not considered when preparing an estate plan.

We provide a summary of the important distinctions between Rhode Island, and its neighbor Massachusetts, and Florida in the areas of tax, creditor protection, Medicaid, and incapacity, as well as the planning techniques available to structure one's estate plan to optimize those differences. A brief ethical discussion of Florida's strong stance against the unlicensed practice of law concludes the piece.

Though the article is aimed primarily at attorneys in Rhode Island, its discussion of Florida law makes it a worthwhile read for anyone with Florida snowbird clients.

Tuesday, November 5, 2013

Can Guardians Pull the Plug on Life Support? In Minnesota, the Supreme Court Will Decide.

The Estate of Denial blog reports that the Minnesota Supreme Court has taken on an end-of-life case with the key question, "Should guardians be required to receive a judge’s sign-off before pulling the plug, or is it already part of the powers granted when they sign on for the job?"

The case, In re the Guardianship of Tschumy, involves a mentally disabled man who suffered severe brain damage after choking on some food. Tschumy could not survive without life support, and he had no family or health directive to indicate whether to proceed with care. According to Estate of Denial,

Allina Health System requested that a judge allow [Tschumy] to be removed from life support, either by clarifying that his guardian, Joseph Vogel, had the right to make the decision or by issuing an order from the bench.

District Judge Jay Quam authorized the termination of Tschumy’s life support, but denied the guardian’s request for the sole power to make that decision. Tschumy died.

In a follow-up order, Quam reasoned that although guardians have a strong case to make end-of-life decisions under a state law that grants them the power to allow or withhold medical care, it does not specifically allow them to terminate life ­support. Until the Legislature decides to revisit the issue, only a judge or legally authorized representatives can order life support removed.

“No one­­ — not even a judge — can look into the future and into the hearts and minds of a guardian to know with confidence that he or she will decide appropriately when, and if, an end-of-life decision needs to be made,” he wrote.

Attorneys for Vogel appealed. Last summer, the Minnesota Court of Appeals reversed Quam’s ruling, reasoning that the final authority lies with guardians and that end-of-life decisions shouldn’t be dictated by the court, relying on a 1984 Supreme Court ruling that said judges were permitted to allow removal of life support without a secondary hearing.

While Quam called the same law too vague, the Appeals Court countered that imposing a requirement for additional court sign-off “would be inconsistent with the Supreme Court’s recognition of a private, medically based model of decisionmaking.”

The Minnesota Supreme Court is expected to clarify just how far a guardian's authority extends and whether end-of-life decisions are an inherent part of that authority.