What Could Happen If I only Have Documents From Another State And Become Incapacitated Or Need Long-Term Care While In Florida?

If you have documents that were created in another state, and you become incapacitated in Florida, all is not lost. Out-of-state documents are not invalid. The trick is that the documents have to be useable by the person you named in those documents. Third parties in Florida have the legal right to ask your out-of-state attorney whether the proposed action is legally valid under the state laws where the document was created.

The change of state doesn’t invalidate the document. It just makes the use of the document a little bit more onerous. In the cases of a power of attorney, the cost of updating a power of attorney for yourself is going to be less than having an attorney ram through difficult banks and financial institutions with your out-of-state documents. It’s time-consuming and slow when action needs to be taken.

Usually, out-of-state powers of attorney and the advance directive should get updated because it’s generally cheaper to update those documents than trying to utilize them throughout your lifetime. As mentioned, you have to get an out-of-state attorney’s opinion as to the validity for each action, if requested. However, if you’re incapacitated and there’s no other choice, your documents are still valid. The fact that they were created in another state does not invalidate your wishes. You’re not going to be forced into a guardianship proceeding. It’s about best practices and the best situation you could’ve had for yourself. You’re not going to be dead in the water because you didn’t update your documents when you moved. Nonetheless, the best approach is to always keep any estate plan updated every couple of years, especially after you retire.

Where Should I keep The Physical Copies Of My Estate Planning Documents If I Am A Snowbird Or Travel Back And Forth?

There are a few ways to manage the physical copies of your estate planning documents if you are a snowbird or travel back and forth. For instance, if somebody works or lives in two states six months out of the year, one approach would be to have a set of documents for each state. More specifically, the documents should recognize the other state’s documents and not override each’s validity. For example, if I lived in Georgia in 2018, and then moved to Florida, I would have the power of attorney and healthcare surrogate documents in both states. In my 2020 documents for the durable power of attorney, I would mention the existence of the alternative Georgia legal documents. The intention is for the documents to work concurrently. Therefore, if I need services or my family needs to take actions when I’m physically located in Florida, they’ll have access to my documents. And so, the best practice would be to keep the originals of each state at each house or place where you live, especially if you travel back and forth.

Now, it is always wise to have the original documents with you. If there’s an accident where family members had to use those documents, they are not forced to triangulate between taking care of you and going back to your other residence in search of the original documents in order to take actions. That’s problematic and cumbersome, particularly in emergencies where actions need to be taken within 24 hours.

Families should keep a box of important documents that is easily accessible. They could grab it in case of a fire or emergency. Your estate planning documents should go in that box and travel with you to wherever you’re living at the time.

What Are Some Tax Planning Considerations We Should Consider When Looking At Setting Up Our Estate Planning Documents For A Move To Florida Or Long-Term Care Planning?

In reference to state income tax planning in Florida or estate tax planning in Florida, there is surprisingly little that needs to be done. In Florida, there is no estate tax as of this article. The main source of revenue in Florida is state sales tax. A lot of the planning that estate planning attorneys would do for state income taxes or state estate taxes is not necessary in Florida. By doing your planning in Florida, you’re actually going to save on taxation and the legal cost of avoiding such taxation. If you’re a Florida resident, the tax planning considerations are significantly slimmed down.

Is The State We Choose For Our Legal Domicile Important To Our Long-Term Care Planning?

The state you choose for long-term care is legally relevant when dealing with long-term care and the potential of not being able to fully pay for private care through the duration of an ailment. This typically applies to people with retirement savings of $1 million and below. It is a rough line to describe. Your state is important because Medicaid laws help with the cost of long-term care, and Medicaid laws have qualification requirements set by the federal government. The Federal Government laws state how strict the states can be in the qualification process for Medicaid.

The states cannot be more strict than the federal law. States can interpret the federal law less strictly to provide easier access of eligibility for its residents. For example, IRAs are treated differently in each state. In Florida, your IRA can’t be protected, which could result in a large savings for your estate if you don’t have to use your IRA for your long-term care. Also, Florida is very generous in its homestead protection. Having a Florida domicile as your primary residence provides a significant protection to its equity. Contrarily, some states would place a lien at death or treat your primary residence oppressively when it comes to Medicaid eligibility.

Choosing a state for long-term care usually comes into play when somebody is living in Florida and their primary care giver’s outside of Florida or there is no other family in Florida. The caregiver would have to decide between taking them back home to another state or leaving the individual in Florida. That inquiry will require a discussion with federal law attorneys in both states. Federal law attorneys can help you figure out the best financial outcome and whether it is a relevant variable in your decision-making process. Therefore, the state of domicile makes a big difference for long-term care. It’s actually a pretty easy threshold to meet. Your state of domicile for long-term care planning is met if you’re in Florida for one day.

For more information on Elder Law In Florida, an initial consultation is your best step. Get the information and legal answers you are seeking by calling (904) 398-6100 today.

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