When it gets cold outside, many people often head for the warmer climates. While this is great for the mind and body, it might not be great for your estate planning…unless you are prepared. Just like a cold winter, if you aren’t prepared there can be devastating effects and long term impacts. It’s kind of like frostbite, if you get it, it can stay with you forever. But if you make plans to avoid it, you can enjoy the time you are in the cold.
This is the time of year when people who can’t stand cold northern winters start making their plans to head south to enjoy warmer climates. However, according to TBR Newsmedia’s article “Estate planning tips for snowbirds,” there are some legal matters that need to be addressed before heading south.
One important aspect of having two different places of residence is how it can affect you and your estate plan in both locations. It’s important to determine if you should see an attorney in your home state or in your winter residence, or both. Most of the time your local attorney doesn’t have a license to practice law in the other state, and vice versa. If there are issues that need to be dealt with that are specific to the state you are residing in at the time, you may need the assistance of an attorney in each location. The good news is the attorneys generally work well together to help you get what you want wherever you may be residing.
The first question to ask is in what state are you a legal resident? There are several factors used to determine residency, such as, the amount of time spent in each state, your mailing address, what state issues your driver’s license, where your car is registered, where you vote, and what address you use to file your income taxes.
Once you determine your state of residence, there are other considerations. Where do you plan on living in the future and where do you think you’ll receive healthcare? If you move south upon retirement but plan on heading back north when you are faced with health issues and need the support of family members, you need to consider those things when making your estate plan.
The laws governing Medicaid vary from state to state. You should have your documents reviewed by attorneys in both your northern and southern residences to be sure that they comply with the law in both places.
There are also differences in the law by some states for powers of attorney and advance directives, including health care proxies, and living will documents. These are important documents and you’ll want to be sure they will work in both states. You will most likely want to have an attorney in each state weigh in on this to make sure you aren’t missing something.
For instance, in New York State, the person who is named to make medical decisions is called your agent, while that same role is called a surrogate in Florida. The term used under the law to name a default agent is proxy in Florida. Although it seems simple, it could lead to confusion and a delay in decision-making at a time when minutes count.
The language listed in your power of attorney will differ state by state as well. If your agent is helping you with long-term care planning, this becomes especially important. You need to make sure that your power of attorney includes all possible powers your agent may need, regardless of whether you are paying privately or applying for Medicaid to cover costs.
Talk with an estate planning attorney about your travel plans and make sure that your documents are all in order, before taking off for a warm winter. It is also a good idea to have a “quarterback attorney,” one who is ultimately in charge for you to go to for everything. They can easily work with the other attorney(s) you might need in other locations but you always have one primary you can go to when you need to get your questions answered.