Estate planning establishes a framework to manage your assets upon death, disability or incapacity. It involves creating documents that outline and authorize others to implement your wishes when you cannot. Even though estate planning may not be something you wish to think about, it is critical that you properly prepare prior to the actual need.

Here are several(but not all) important documents necessary to cover the various aspects of an estate plan concerning incapacity or disability prior to death.

• A Durable Power of Attorney for Financial Matters & Property Management gives another person legal authority to manage your assets without court interference. A “regular” power of attorney ends at incapacity, while a “durable” power of attorney remains valid or enforceable through incapacity but terminates upon death.

 

• A Healthcare Surrogate or Medical Durable Power of Attorney gives another person legal authority to make health care decisions (including life and death decisions) if you are unable to make them for yourself.

 

• A Living Will (also known as an Advance Directive to Physicians) sets out your predetermined wishes regarding end-of-life care or issues should you become terminally ill, permanently unconscious or have some other irreversible condition. Ultimately, it takes the decision to withhold life, water, food and/or extraordinary measures out of the hands of your medical providers and loved ones so that they are not burdened by it, and you can be assured your wishes are followed.

 

• HIPPA Authorizationsgive your doctors, medical facilities and other providers permission to discuss your medical circumstances with others, including family members and other loved ones as well as release your private medical information to them.

 

It is also important that the designated persons or authorized agents know where to locate financial records, medical records and passwords when and if needed. Accordingly, you should make a list of accounts and passwords (including your computer’s password) and print the list and put it in a safe place. A hard copy is important in case your computer crashes or is lost or stolen. If you use an online back-up system, make sure to include it.  You should also include online accounts and social media.    Finally, you should update your documents as your life and circumstances change.

Drafting an estate plan for incapacity or disability is essential for every responsible adult.  If you do not have a plan, you need to prepare one sooner than later.  Creating such a plan will provide you the opportunity to consider what is important to you and how you can better protect both yourself as well as those closest to you.

U.S. Immigration / Travel Update

 

As the COVID-19 pandemic and related restrictions continue, we continue to advise caution regarding international travel. Everyone considering international travel is urged to carefully consider the risks and be fully aware of how ongoing conditions may impact travel. Due to limited availability of visa appointments and the possibility of additional COVID-19–related travel restrictions, individuals should consider not traveling abroad, or else should be prepared to spend additional time outside the United States if needed.

 

CDC Update Requiring Negative COVID-19 Test

The Centers for Disease Control and Prevention (CDC) issued an Order, effective January 26, 2021, requiring all international air passengers destined for the United States to be tested no more than three days before their U.S.-bound flight departs and present the negative viral test result. As an alternative to a negative COVID-19 test result, international travelers may present documentation of recovery from COVID-19, including a positive viral test result and letter from a health care provider or public health official clearing them for travel. All passengers must present the negative test result or proof of recovery from COVID-19 before boarding the flight. This new Order supersedes the December 25, 2020 Order requiring negative COVID-19 proof pre-departure for all passengers arriving from the United Kingdom.

 

The CDC Order applies to all air passengers traveling to the United States, two years of age or older, including U.S. Citizens and legal permanent residents. Further, the CDC guidelines and orders do not replace the Presidential proclamations. Please see details on the current Presidential proclamation travel bans below.

 

Current Travel Bans

COVID-19–Related Country Bans

Between January and May 2020, President Trump issued a series of travel bans to curtail the spread of the coronavirus (COVID-19) pandemic, which remain in place. Exempting U.S. citizens and lawful permanent residents, President Trump suspended indefinitely the entry of foreign nationals who have been physically present in certain countries during the 14 days prior to entering the U.S. This ban will remain in place until it is terminated by President Biden. The suspension of entry for foreign nationals currently applies to physical presence in the following countries: China (excluding Hong Kong and Macau), Iran, Brazil, the United Kingdom, Ireland, and the Schengen area of Europe comprising Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

 

Any physical presence in these countries triggers the application of the ban, including flight connections and layovers, so it is important to arrange any travel accordingly.

 

Due to the increase in COVID-19 cases, it is always possible that additional countries may be added to these travel bans in the future; and that the addition of new countries will be done with little notice.

 

Economic-Related Ban on Certain Individuals Seeking Entry in the H, L, and J Visa Categories

Effective June 24, 2020, President Trump issued a proclamation that suspended the entry of certain nonimmigrants into the United States. Individuals in certain visa classifications who were outside of the United States without valid visa stamps in their passports on the effective date of the proclamation are prohibited from entering the United States until after March 31, 2021 following an extension of the original December 31, 2020 termination date. The affected visa classifications are H-1B workers and their dependent family members; H-2B workers and their dependent family members; L-1 workers and their dependent family members; and J exchange visitors who are participating in one of the following exchange categories — intern, trainee, teacher, camp counselor, au pair, or summer work/travel program — and their dependent family members.

 

Individuals, whether inside or outside of the U.S. at the time of the proclamation, who have valid nonimmigrant visas in these categories and are attempting to enter the U.S. using the previously issued visa are not impacted, notwithstanding any other travel restriction. Canadians, who do not require visa stamps in these categories, are exempt from the nonimmigrant entry ban.

 

Many U.S. Consular posts have suspended routine visa appointments in the above-listed categories, and even if an individual can obtain a visa appointment, impacted individuals will not be able to enter the U.S. until after March 31, 2021, unless they qualify for a waiver as described below.

 

Exemptions and Waivers for Individuals Subject to Travel Bans:

For those wishing to travel and subject to the travel bans, there may be options available. Both the COVID-19–related travel bans and economic-related bans do have waivers available in specific limited circumstances.

 

Options for COVID-19–Related Country Bans

Individuals seeking to return to the U.S. from one of the “COVID-banned” countries generally have two options:

Securing a “National Interest Exception” (or “NIE”) waiver from the U.S. consulate or embassy in their home country.

For individuals traveling from the UK, Ireland, or a Schengen country, waivers may be granted for travel related to humanitarian travel, public health response, and national security. These requests must be submitted to the U.S. consulate or embassy in the individual’s home country. Most consular posts will not entertain a request for an NIE waiver unless the individual is outside of the U.S., so permission to return to the U.S. cannot generally be secured in advance of departure. Further, consular officers have wide discretion with regard to granting these waivers, and limited consular operations frequently result in long waits. As a result, traveling with the expectation of being granted a waiver continues to be risky. Procedures vary widely, but are generally outlined on the consulate’s website. Note that this NIE waiver option is limited to travelers coming from the UK, Ireland, and the Schengen countries.

 

Students seeking to travel to the U.S. on valid F-1 or M-1 visas from the UK, Ireland, and the Schengen region do not need to contact the consulate or embassy. They are automatically granted the NIE waiver.

 

Individuals seeking to return to the U.S. from a COVID-banned country who are unable to secure an NIE waiver — because the request is denied, delayed, or not available — may choose to return to the U.S. only after a 14-day “quarantine” stay in a non-banned country. The COVID-19–related ban only applies to anyone who has been physically present in one of the banned countries during the 14 days prior to admission. Spending the 14 days prior to admission in another country removes the ban on entry into the U.S.

 

When considering international travel and the available waivers, it is important to remember that the COVID-19–related travel bans exempt the following individuals:

Spouses of U.S. citizens and lawful permanent residents;

A foreign national who is the parent or legal guardian of an unmarried U.S. citizen or lawful permanent resident under the age of 21; and

A foreign national who is the sibling of a U.S. citizen or lawful permanent resident, provided they are both under 21.

Individuals in these categories may continue to travel to the U.S. without securing a waiver, and should carry original documentation that evidences the exemption.

Options for Economic-Related Ban on Certain Individuals Seeking Entry in the H, L, and J Visa Categories

Individuals seeking to return to the U.S. in H, L, or J status, who do not have a valid visa issued prior to June 24, 2020, may be subject to the ban on new admissions in these categories, currently in place through March 31, 2021.

Individuals who were in the United States in H, L, or J status on the June 24, 2020 effective date should be exempt from the ban. However, if you do not have a valid visa for return to the U.S., either because your status was changed in the U.S. or your prior visa has expired, obtaining a new visa may prove challenging. Some consular posts are simply not scheduling visa appointments in these categories, and others are allowing appointments to be scheduled — sometimes months in the future — only to cancel them. From a practical standpoint, unless one is likely to qualify for a national interest waiver, there is a good chance that a new visa will not be issued. For individuals eligible to have the in-person visa appointment waived, submitting application documents to the embassy through drop box or courier services stands the best chance of securing visas in these categories. Each consular post determines the criteria for a waiver of the interview requirement. At a minimum, typically, the consular post requires that the individual has already been granted a visa in the same classification.

 

Visa Processing and Impact on Travel Options

The U.S. Department of State (“DOS”) initially suspended routine visa processing in March 2020 due to COVID-19 and began phased re-openings across consulates starting in July 2020. The consulates have resumed routine visa services on a post-by-post basis, but most consulates are still operating at reduced capacity and offering only very limited services. Some consulates resumed routine visa services only to reduce their capacity in October due to the increase of COVID-19 cases in a number of countries. The DOS is unable to provide dates on when each consulate will resume specific visa services or when all posts will return to pre–COVID-19 processing times. Most consulates do have emergency and “mission-critical” services available on a case-by-case basis. Please be sure to check the U.S. consulate website in advance to confirm current rules on visa issuance.

 

If an individual is able to secure a nonimmigrant visa appointment, most appointments will follow routine processing, and the applicant will be notified of an approval following the interview. If approved, the visa stamp is normally placed in the passport within several business days following the appointment. In certain instances, if the Consular Officer conducting the interview cannot establish visa eligibility at the time of the interview, the application will be placed in administrative processing and will undergo further review. If the application is selected for administrative processing, the applicant cannot return to the U.S. until the visa is issued and, while most cases are resolved within 2–3 weeks, on occasion, administrative processing may extend to several months, or even longer.

 

Entry into the U.S.

In addition to adhering to the requirements in the COVID-19 test order issued by the CDC when entering the U.S. following international travel, foreign nationals should be prepared to answer questions from a Customs and Border Protection Officer regarding the nature of proposed entry and qualifications for a designated waiver or exemption. All foreign nationals should carry documentation evidencing status as well as any documentation supporting the individual’s specific exemption from the travel ban or waiver requests..

 

Following entry into the U.S., it is critical for individuals to check the I-94 admission record to ensure that it properly reflects their status and authorized stay in the U.S. We recommend verifying the accuracy of Form I-94 details within 48 hours of entry to the U.S. in order to correct any errors in a timely manner.

 

The answer is -YES!   Most young adults do not think about their future with respect to estate planning.  Why should they since they believe they are invincible or even immortal.  Unfortunately, that is not a true assessment in terms of reality.  In the real world, you cannot predict what may happen in your life.  There could be a serious illness, disability or death.  Estate planning for young adults tends to make sense and should be done sooner than later.

It is sad but true that unforeseeable events, accidents and/or tragedies do happen to young adults and are becoming more common today.   When a young person is under 18, it is routinely their parents who make all their medical and financial decisions.  This situation changes once an individual reaches 18 years of age. A parent’s right to make these decisions is no longer available. In addition, many major events will take place during this time-period, such as going to college, studying abroad, interning, opening a bank account, traveling, getting a job, purchasing a house, getting married, getting a pet, starting a business and having their own children, etc.

There are certain privacy laws that are in place to protect the public.  These laws pose a major disadvantage to anyone who is unprepared and does not have an estate plan in place.  Specifically, if you were to become incapacitated and over 18, it would be difficult for your parents to make decisions regarding your medical care and financial matters, unless, you have the proper legal documents in place.  At times, hospitals, medical providers or other facilities will not speak with your family members if they do not have the legal documents authorizing them to act on your behalf or are permitted the release of this private information.  For instance, if a young adult becomes incapacitated and ends up needing medical care, their parents may not legally be allowed to make decisions or even find out information about their adult child’s condition.  The only person who could do that is a spouse or a designated agent holding a healthcare power of attorney. The person in this role is authorized to make important treatment decisions for you and access necessary information and records when you, the young adult, cannot do it for yourself

To prevent your family from going through difficult times during your already stressful period, you should consult with an Estate Planning attorney shortly after becoming a legal adult and prior to the foregoing circumstances occurring.  A few of the necessary forms or documents to consider, include, but are not limited to:  Durable Power of Attorney for financial matters and property management, Healthcare Surrogate(a durable medical power of attorney), Living Will(an Advance directive), HIPAA medical authorization and Last Will & Testament.  Without these documents, parents or family members or important significant others who may not be official or legal family members will probably have to go to court and ask for permission to obtain information about the young adult’s medical condition, be able to make decisions about treatment and have access to their financial records and accounts to make important decisions concerning those matters as well.

The appropriate legal documents, prepared by an Estate Planning attorney, allow you, the young adult, to name another person to make medical and financial decisions for you if you are unable to make them for yourself. The individual(s) you select should be someone you know and trust, and a frank discussion should take place, so they know and understand your wishes. These documents are not expensive and private and avoid expensive public court intervention. Accordingly, all young people over the age of 18 should have them.  Parents should discuss these matters with their children as well, both for themselves and for their children nearing adulthood and consider speaking with an Estate Planning attorney.

The answer is YES!  In Florida as well as 44 other states, obstructing traffic in the left lane is against the law. Most states follow the Uniform Vehicle Code and require drivers to keep right if they are going slower than the usual, customary, normal or established speed of traffic, regardless of the speed limit.  Florida legislators amended the law, i.e., Florida Statute Section 316.081, in 2014 to make the left lane for passing, not cruising, unless there was congestion or an obstruction in the right lanes. Breaking said statute by “proceeding at less than the normal speed of traffic” in the left lane or staying there when “the driver knows or reasonably should know that he or she is being overtaken in that lane from the rear by a motor vehicle traveling at a higher rate of speed” is a moving violation punishable by a fine and points on your license.

Further, pursuant to Section 316.081(3)-the left lane is for passing and not for driving slowly.

In addition, you may be violating Section 316.183(5), if you are driving too slowly in the left lane and not moving over for a car trying to pass.  Driving too slowly can increase the risks of causing car crashes, blocking vehicles from safely passing and creating a general safety risk on the roadway.  The purpose of this law is safety because it should aid in reducing traffic congestion and dangers caused by angry drivers stuck behind a slow driver who does not move over, thus preventing such issues as road rage, tailgating, rear-end collisions, and weaving in and out of lanes.

As expected, in Florida, you can get a traffic ticket for driving too fast as well as too slowly. On Florida highways like the Turnpike and I-95, the maximum speed is 70-mph unless otherwise posted.  If you are on a highway such as the Turnpike, you can be given a traffic ticket for driving too slowly.  If you drive slower than 50-mph on a Florida interstate (posted at 70-mph), you may be issued a traffic citation. Traveling on an interstate below 50-mph will slow down traffic and make it unsafe for other cars around you traveling at higher rates of speed. If traveling in a 65-mph zone, the minimum speed limit should be 40-mph.

HOWEVER, there are circumstances under which a driver can avoid being ticketed for going too slowly depending on the roadway and other specific conditions.

Some of these circumstances can legally justify a motorist driving slowly or impeding traffic. A few of the more common situations, which can provide a driver with a valid defense to a ticket for impeding traffic or driving slower than the minimum posted speed are poor weather conditions, road hazards and/or dense traffic/traffic jam. The foregoing is based on safety considerations.  Legally speaking, a person should not drive a motor vehicle on a highway at a speed greater than is reasonably necessary and prudent under the circumstances, conditions and actual and potential hazards then existing. Consequently, a person should control the speed of their vehicle as is necessary to avoid colliding with any object, person, vehicle or other conveyance on, entering or adjacent to the highway in compliance with legal requirements, and therefore, it is the duty of all persons to exercise reasonable care for the protection of others.

In Florida, you can be issued a ticket for not driving fast enough since it can cause accidents. Drivers and vehicles should travel within the posted speed limit and the flow of traffic around them to avoid blocking other vehicles traveling at normal, safe speeds.

No contest or in terrorem clauses have been used in Wills for decades. These clauses usually state that if a beneficiary contests the validity of the said Will and loses, that beneficiary receives nothing. Alternatively, if the beneficiary wins, the subject Will is invalid and, therefore, the clause as well. These clauses were routinely upheld since, under the common law (non-statutory law created by custom and courts), there was no legal right to inherit. A bequest was a gift made by the deceased person, who had complete discretion as to how and when to leave that gift.  Accordingly, any action taken by a beneficiary that was detrimental to the probate of a Will violated the no contest clause and the losing beneficiary’s bequest was forfeited.

However, changes occurred over time, and U.S. courts, including those in Florida, began to construe those clauses very strictly.  Kolb v. Levy(in 1959), one beneficiary filed a contractual claim against her mother’s estate a claim, which was so substantial that if she succeeded in a lawsuit, it would have consumed most of her mother’s estate.  The Florida appellate court ruled that said action did not violate the no contest clause, because it did not directly challenge the validity of the Will.

Florida law evolved further in the 1990s, when concepts regarding an individual’s right to have access to the courts to redress grievances changed. The Florida state legislature declared that no contest clauses violated public policy and passed two statutes prohibiting the enforcement of no contest clauses in both Wills and Trusts.  Florida is one of the few states that does not recognize no contest clauses in will contests and trust challenges.  Ultimately, in 2013, Dinkins v. Dinkins, the Fifth District Court of Appeals cited well-established law in its decision taking notice that no contest clauses are invalid.   In fact, only Florida and Indiana make these no contest clauses completely unenforceable in will and trust proceedings.

For will contests, Section 732.517 of the Florida Statutes provides as follows:

“Penalty clause for contest.—A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.”

For trust challenges, Section 736.1108 of the Florida Statutes provides as follows:

“Penalty clause for contest.—(1) A provision in a trust instrument purporting to penalize any interested person for contesting the trust instrument or instituting other proceedings relating to a trust estate or trust assets is unenforceable.   (2) This section applies to trusts created on or after October 1, 1993.”

The Uniform Probate Code, which was adopted in approximately 22 states, provides that no contest clauses are enforceable, unless the contest is based on probable cause.

Approximately 14 states enforce no contest clauses without regard to probable cause or good faith, including New York, Ohio, Rhode Island and Virginia.  Arkansas and Illinois enforce no contest clauses unless the contest is based on good faith. Connecticut, Iowa, Nevada, North Carolina, Oklahoma, Tennessee, and West Virginia enforce these clauses unless the contest is based on both good faith and probable cause. Texas enforces these clauses unless the contest is based on both just cause and good faith.  One must check the particular state outside of Florida for its position on this provision.

Florida has some of the most developed case law and legislation regarding will and trust contests in the U.S., probably due to the sizeable older population residing in the state.

Florida is currently the only state that absolutely prohibits the enforcement of no contest clauses in Wills and Trusts. A few other states still enforce them most of the time, but the majority of states consider the above-mentioned factors.  If a will or trust was drafted in another state and includes a no contest clause, said provision will not be enforced in a Florida probate court, even though the remainder of the said Last Will & Testament may enforceable.

HOWEVER, it does appear that, even though it is known that they are unenforceable, a number of Florida attorneys still put no contest clauses in Wills and Trusts.  This may be done in an attempt  to prevent or discourage frivolous litigation. Further, many clients want these clauses in their documents, even though they understand that a Florida court won’t enforce such provisions, since it is their great desire to show to their beneficiaries and potentially a probate judge, their sincere intent regarding the disposition or distribution of their assets. Such a ruse may occasionally work but does not really deter a truly litigious person.

Some Floridians use a Trust as their primary estate planning tool, which avoids the risk of a Will contest since a Pour Over Will essentially does very little except transfer title of a few, usually forgotten, assets from the name of the decedent to that of an existing trust. In the alternative, trust litigation may occur.  The contest may relate to the validity of the trust, but, quite often, trust litigation or challenge involves disputes between the trustee and a beneficiary concerning interpretation of the terms and/or distributions of the assets of the trust.

Depending on specific circumstances, there may be alternatives to using unenforceable no contest clauses in order to prevent or minimize potential litigation risks when a trust is involved. Creating and funding separate trusts for potentially problematic beneficiaries, adding Trust Protector provisions or adding a mediation provision may prevent a disgruntled beneficiary from depleting trust assets in a protracted expensive litigation.

Consequently, Florida statutory and decisional or case law clearly prohibit the enforcement of no contest clauses in either wills or trusts.  Regardless, properly prepared estate planning documents can ensure your loved ones and assets are protected.