ESTATE PLANNING FOR FOREIGN EMPLOYEES: Smoothing the Transition

The rapid expansion of international public and private companies has brought about an exponential increase in the establishment of subsidiaries far from global headquarters. Such growth has meant that companies are often requiring employees across professional sectors to relocate to offices maintained in cities where significant operations are carried out. Local businesses of global enterprises often have responsibility for administrative, manufacturing or operational activities including, for example, the local management of store and bank groups. Depending upon the nature of a company’s current or anticipated business strategic planning, employees may be required to relocate for varying lengths of time to foreign countries. The length of the mandate may require the consideration by the employee of moving alone or accompanied by family members.

Given its economic vitality and accessibility, South Florida has increasingly become a company base, especially for international entities moving north-bound and west-bound. With the establishment of appropriate corporate structures comes the task of employment assignments. At times employees may find the transition to a new culture difficult. One of the tools which may be used to decrease difficult transition is the availability to employees of estate planning services.

The provision of estate planning services can make the employee feel more acclimated to the new environment. These services may include consultations for advance directives (the health care proxy and living will), powers of attorney, declarations of preneed guardians for the individual and for minor children and wills. These documents are typically prepared for the employee and his or her spouse. The documents work in concert to provide protection for the family in the event of various contingencies. The discussion below is based upon Florida law.

The health care proxy is a written document designating a surrogate to make health care decisions for a principal determined to be incapacitated. The surrogate provides informed consent for medical treatment and surgical and diagnostic procedures required by the principal.

With the complementary advance directive, the living will, any competent adult may, at any time, make a living will and direct the providing, withholding, or withdrawal of life-prolonging procedures in the event that such person has a terminal condition, has an end-stage condition, or is in a persistent vegetative state. The living will provides an individual with the opportunity to state in detail personal preferences that will take effect in the case that certain events occur.

The power of attorney involves the appointment by the principal of an agent to act in the principal’s stead with respect to specified powers (other than health care powers). The power of attorney most often grants financial, property and estate powers to the agent. It is effective from execution. A durable power of attorney is not terminated by the principal’s incapacity.

To supplement the authority granted by the advance directives and power of attorney, individuals often desire to appoint a preneed guardian to care for them in the event of incapacity. A competent adult may name a preneed guardian by making a written declaration that names such guardian to serve in the event of the individual’s incapacity. An alternate guardian can additionally be indicated to serve in the case of refusal to serve, renunciation of appointment, death or incapacity to the designated preneed guardian.

Both parents, natural or adoptive, if living, or the surviving parent, may nominate a preneed guardian of the parent’s minor child by making a written declaration that names the guardian to serve if the minor’s last surviving parent becomes incapacitated or dies. The parent or parents may also name an alternate to the guardian to act if the designated preneed guardian refuses to serve, renounces the appointment, dies, or becomes incapacitated after the death of the last surviving parent of the minor. Such a document provides the parent with peace of mind regarding a minor child or children if so needed.

Finally, the will provides for the disposition of personal and real property upon or after death to named beneficiaries, including heirs. Preparation of this important document necessarily involves the cataloging of all of the property, wherever located, of the individual, termed a testator or testatrix. Consultation with an attorney is especially important given legal and tax technicalities and impacts.

Providing a relocating foreign employee with an attorney consultation to discuss the above documents can be instrumental in easing the transition of moving to a new country. If you or someone you know is interested, please do not hesitate to contact the experienced attorneys at Chepenik Trushin LLP, who are ready, willing, and able to take care of all of your estate planning needs.