USA – FLORIDA Law and Practice Contributed by: Jennifer Jordan McCall, Drew Reitz and Christine Tsai, Pillsbury Winthrop Shaw Pittman LLP
doctors, schools for children, and determining the relative size and value of residences between the two states. Severing ties with an old state and establish - ing Florida domicile is often a complicated issue for high net worth individuals without proper tax planning, and can be the reason for ongoing state audits by the old state. 7.2 Expeditious Citizenship Florida does not have an expeditious citizenship mechanism. 8. Planning for Minors, Adults with Disabilities and Elders 8.1 Special Planning Mechanisms It is common in Florida to transfer assets to a per - son with a disability through a special needs trust (“SNT”). An SNT can permit certain distributions to a beneficiary without disqualifying the beneficiary from government benefit assistance. Careful drafting of the SNT is a necessity. It is also common to transfer assets to minors through the Uniform Transfers to Minors Act which permits transfers to a custodian to hold on behalf of the minor until the minor reaches a certain age, which can be up to 25 years of age in Florida. The main benefit of a UTMA account is its simplicity, but it comes with the drawback that the child will receive all of the funds at the specified age. Generally, trusts are better – albeit more costly – mechanisms for such planning, because it is possible to keep the assets in trust for long periods of time, thus maximising gift and estate tax benefits as well as creditor protection. A trust must contain specific provisions to qualify to receive “annual exclusion” gifts – exempt from gift tax – and can include IRC Section 2503 provisions to so qualify, followed by continuing trust language to protect the assets for the beneficiary after they reach age 21. 8.2 Appointment of a Guardian Guardianship A guardian is appointed by the court to make personal and/or financial decisions for a minor or adult with
disabilities. Florida law requires guardians for minors in the event of their parents’ death/incapacitation, or if a child receives proceeds exceeding a statutory amount. The removal of an individual’s rights simultaneously creates the court’s duty to protect that individual. The appointment of a guardian is subject to court over - sight. This oversight is achieved mainly by an annual guardianship plan. This requires each guardian to file a report with the court regarding updated information about the condition of the ward. This report specifies the current needs of the ward and how those needs are proposed to be met in the coming year. Ultimately, the court has discretion to require re-examination of the ward at any time, and continually monitors the guardian-ward relationship. Conservatorship The court oversees conservatorships, including: • terminating the conservatorship and transferring property back to the absentee or their representa - tive upon request; • terminating the conservatorship if the absentee is confirmed deceased, and transferring property to the appointed executor or administrator; • requiring the conservator to file final returns and an application for discharge when the conservatorship ends; • reviewing and approving the conservator’s final returns and discharge; and • conducting hearings if there are objections to the conservator’s returns. Care must be taken to ensure that a conservatorship is only employed where appropriate; recently it has been used in contentious settings, such as for pur - poses of gaining control over a spouse and his or her assets in a failing marriage. 8.3 Elder Law Care should be taken when writing a Health Care Advance Directive in Florida to appoint an attentive and reliable Health Care Surrogate, to obtain long term care insurance and to provide for stable retire - ment income. The “Health Care Advance Directive” (sometimes divided into two documents referred to
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