Question: My spouse and I live in our home in New York in the summer and we spend the winter at our condo in Florida. We are looking to do estate planning and also prepare for if either of us need long term care in the future. Should I see an attorney in New York or Florida?

Answer: We have seen many clients with your living situation, the “snowbird,” who maintains a residence in New York but travels down south during the harsh winters. The first question that must be answered is whether you are determined a resident of New York or of the other state you are visiting. Some factors to determine residency include the amount of time spent in each state, your mailing address, what state your driver’s license is held, where your car is registered, where you are registered to vote, and where you file your income taxes.

Once you determine which State is your primary residence, there are other considerations to be considered regarding your estate plan. Snowbirds should consider where they plan on living in the future and where they think they will likely receive care. There may be a possibility that you move down south upon retirement but you plan to move back to New York to be with family members when you are in need of assistance. Since most clients do not have a plan set in stone, they should have estate planning documents, which may include Medicaid asset protection, that would cover them in either state.

Because the laws governing estate planning and Medicaid benefits differ from state to state, it is advisable that you have your documents reviewed by an attorney in both states to ensure that they comply with the laws in both places. For example, there is an additional signature required on a Last Will and Testament in Florida that is not required in New York. Complying with Florida law when executing a Last Will and Testament this will not invalidate the document if it is probated in New York. This will avoid any issues or delay in administration if your Last Will and Testament if it is probated in Florida.

Additional examples of differences in the law are for what we call advance directives including Health Care Proxy and Power of Attorney documents. Since these are state-specific laws, they often have different terminology which can be confusing when moving between locations. For a Health Care Proxy in New York the person named to make your medical decisions is called your “Agent.” In Florida the term for the agent acting as your Health Care Proxy is a “Surrogate.” Whereas in Florida the term used under the law to name the default agent appointed is “Proxy.” This could cause unnecessary confusion and should be addressed by your estate planning attorney.

The language and powers listed in your Power of Attorney will also differ by state. This becomes especially important when your agent is assisting in long term care planning. You should make sure that your Power of Attorney includes all of the possible powers your agent may need should you need long term care whether it is by privately paying or applying for Medicaid to cover your care costs. This may include: the power to prepare, sign, and amend a trust agreement; allowing for transfers of assets to your agent; and enter into contracts for caregivers or home health care services.

For our snowbird clients it is important to consider where you are likely to receive care in the future. We recommend that you have your estate planning documents reviewed by an elder law and estate planning attorney in New York and your warm winter destination.

– Nancy Burner. Esq. and Elaine Siegmund, Esq.