Estate Planning, Durable Power of Attorney, Living Wills, Health Care Directive, Wills and Trusts.
A Plan for Incapacity and Testate
Welcome. A Will is a legal document that states and directs who receives such property and in what amounts, upon the testator’s death.
In addition to direction for distributing property, a Will may have other functions. It may be used to name a guardian for a minor child, create a testamentary trust and designate a trustee or personal representative, to handle the estate (property left after death) on behalf of children or others.
To make a valid Will, a person must demonstrate he/she has a general understanding of the nature of their property and their family relations. Once a person becomes cognitively impaired to the point they are unaware, then it is too late to make a Will.
When there is no valid Will, the person is said to have died “intestate”, and the property will be distributed according to the statutory scheme found at Chapter 732, Part I, Florida Statutes.
A Will is effective only at death but may be changed or revoked at any time before death. It is important to know that any property the decedent owned at the time of death, in which a beneficiary was designated, actually trumps the Will. This means that the beneficiary designation strategies must be coordinated with the Will, in creating the estate plan.
Having a Will or Trust saves loved ones from unnecessary frustration and confusion, at a time when they are grieving. Emotions run high at such a time, and a Will or Trust brings decisiveness and clarity, to the beneficiaries left behind.
Living Revocable Trusts
Welcome. A trust is an agreement under which money or other assets are held (owned) and managed by one person for the benefit of another. Different types of trusts may be created to accomplish specific goals. Each kind may vary in the degree of flexibility and control it offers.
Some of the common benefits that trust arrangements offer include:
- Providing personal and financial safeguards for family and other beneficiaries
- Postponing or avoiding unnecessary estate taxes;
- Establishing a means of controlling or administering property; and
- Meeting other social or commercial goals.
- Avoiding Probate
A Trust is created, in a manner similar to a Will. The formalities of signing are identical. The document is called either a “Trust Agreement” or “Declaration of Trust.” It typically is named after the individual who creates it, such as the “John Smith Revocable Living Trust.” The person making the trust is known as the “Grantor” or “Settlor” or “Trustor.” The Grantor will usually also serve as the “Initial Trustee”. One can think of the Trustee as the administrator, who normally has sole discretion to decide how and when to distribute money to the beneficiaries. The terms of the trust provide a blueprint. Typically a trustee is charged with using the money in trust for the “health, support, maintenance and education” of the beneficiary. The Trust Agreement typically contains names of successor Trustees, to serve when the initial trustee can no longer do the job. Trusts are useful when money is inherited by minors, or young adults who may not be able to make the best financial decisions at a young age.
A living revocable trust, is different than a testamentary trust. A testamentary trust, is a “trust within a Will or Trust”, that does not come into existence until the decedent dies. The terms of the “future or contingent” trust in contained within the Will. A living revocable trust is an entity which owns your property when you are alive. In your capacity as Trustee, you have complete control over the assets owned by your trust. The essential component of having a trust is to “fund it.” This means changing the title of the deed or account from your name to the name of the trust. While having a trust is more work up front, it saves the beneficiaries of your property from having to open a probate, if that is important to you.
A living revocable trust is advisable when folks own real estate in both Florida and other states. This strategy avoids having to open two separate probate actions, one in each state.
Once a trust has been established, a periodic review of the terms of the trust is advisable. Like a Will, a Trust may be in existence for many years. A trust is easily amended to add or change Trustees, Successor Trustees, Beneficiaries, or other needed changes, as life moves forward. Events that may herald a need for an amendment to your Trust or Will, are marriage, death, incapacity, birth of a child or grandchild, or divorce.
Durable Power of Attorney and Estate Planning Tampa, St. Petersburg, Clearwater
Welcome. An estate plan also includes a plan for temporary or permanent incapacity. Injuries and illness, particularly involving the brain, like stroke, head trauma, or dementia, can affect the ability to manage financial and legal affairs. It is wise to authorize a trusted person to handle these matters in advance, if the need arises. One of the easiest ways is to execute a Durable Power of Attorney.
A Durable Power of Attorney, commonly referred to as a DPOA, is a written document, signed by an individual (the Principal) in the presence of two witnesses and a notary. It contains language which authorizes the trusted person “the Agent” to act on the Principal’s behalf. It is governed by Chapter 709, Florida Statutes, which is known as the “Florida Durable Power of Attorney Act.” This law was significantly revised in October of 2011, however Powers of Attorney executed before then, are still legally valid.
Some assume, that a spouse will automatically be authorized to manage the affairs of another during incapacity, however this is not the case. It is prudent for married couples to have a Durable Power of Attorney to designate each other as their agents. If not married, any trusted person such as a family member, significant other, a friend, or even a professional fiduciary, can serve as an agent.
A written legal Durable Power of Attorney document is necessary when dealing with third parties on the principal’s behalf. Third parties are banks, auto insurance companies, homeowner’s insurance, license bureaus, brokerage houses, credit unions, human resource departments, retirement plans, life insurance, etc. When dealing with these third parties on behalf of the “principal”, the first question asked of you will be to provide a copy of the Durable Power of Attorney, appointing you as the “agent”.
The document is inexpensive and certainly worthwhile, given the alternative of establishing an expensive guardianship procedure in the courts.
An agent has a fiduciary duty to act in good faith and in the best interests of the principal.
Health Care Surrogate
Welcome. A health care surrogate also known as a health care power of attorney is an adult who you legally designate in writing, to make healthcare decisions when you become unable to make them for yourself.
A concern for anyone, is a potential loss of the cognitive ability to make health care decisions for one’s self. If this occurs, who do you trust to make decisions about what treatment option to pursue, or what medications or surgeries to accept? Surgical and diagnostic procedures require written consent. A health care surrogate document can be drafted to appoint a surrogate and to grant them legal authority to make these decisions, if you are unable to.
You can appoint one or more persons to act as your surrogate and designate whether you require these chosen individuals to make decisions jointly or independently. You can also designate an alternate health care surrogate to act if your primary designated surrogate is unavailable.
Additionally the document gives authority to your physicians to discuss your health care condition with your surrogate. This written permission is required under the Health Insurance and Portability and Accountability Act, known commonly as HIPAA.
The law governing Health Care Surrogacy is found under Chapter 765 Fla. Statutes.
Guardian Advocate for Developmentally Disabled Children.
Autism, Cerebral Palsy, Intellectual Disability, Spina Bifida, and Prader-Willi Syndrome Chapter 393 Fla. Statutes, allows parents to become a legal guardian advocate for their child with a developmental disability, once the child reaches adulthood. This procedure is simpler than the standard guardian procedure, in that a three person expert panel is not required. Disability is determined by a form signed by the child’s physician. Developmental disability as defined in the statute applies to children who have autism, cerebral palsy, intellectual disability, spina bifida, or Prader-Willi Syndrome.
Most importantly, it is geared to the child’s individual strengths and weaknesses. It fosters independence, at the same time as offering protection. In such a proceeding, a guardian advocate, can assist in making decisions about contracting, managing money, deciding the living environment, making medical decisions and other important legal matters. It means that a parent doesn’t lose all control of safety parameters, just because the child has reached the age of eighteen.
It assures that as the child develops and matures beyond age eighteen, there is flexibility and a safety net in place for legal protection, while still allowing for optimal independence.
Welcome. A Living Will is a written declaration of instructions to your physician and family regarding the withdrawal, withholding or provision of life-prolonging procedures at the end of life, when there is no chance of recovery or cure. The procedure for signing a legally valid Living Will in Florida is governed by Sections 765.302 through 765.304 Fl. Stat. The person making the Living Will is referred to as the principal.
A Living Will must be signed by the principal in the presence of two subscribing witnesses, one of whom is neither a spouse or a blood relative of the principal. The decision to make a Living Will is a very personal decision and can be individualized.
Most importantly, by making this end of life decision in a legal document, your family will be relieved of the burden of having to make that decision for you. A Living Will can give peace of mind to you and your family.
It is recommended that the principal also designate an individual to act as a health care surrogate to make medical decisions including the end of life instructions set forth in a Living Will.
While the subject of end of life is difficult to think or talk about, a Living Will, can assure your voice is heard by your family and physicians.
The Law Firm of Diane Zuckerman can assist you in preparing your living will and advising you on additional estate planning, contact us today for your initial consulation.
Legal Services: Probate, Guardianship, Estate Planning, Planning for Disability, Living Will, Trust, Health Care Directives, Durable Power of Attorney
Estate Planning for Same Sex Couples
Welcome. Until Florida allows same sex marriages, same sex couples can accomplish many of their goals through traditional estate planning. Couples can provide for and protect each other with the use of Health Care Directives, Wills, Durable Powers of Attorney, and Trusts and HIPPA releases.
Such documents also serve as a statement to family members, of the plan and desire to treat each other as married spouses. If your partner becomes ill, a fully executed Health Care Surrogate will allow you to make medical decisions on his/her behalf, and the included HIPAA release will authorize your partner’s physicians to discuss your partner’s medical condition and treatment plan with you. A Durable Power of Attorney, will legally authorize same-sex couples to handle each other’s legal, business and financial affairs. Same-sex couples can be protected and obtain spousal status with this properly executed documents. Registering with the county and city as domestic partners is also an option.
Children of same-sex individuals and couples can be protected via the use of a pre-need guardian for minors’ document. Diane Zuckerman Esq. can assist in preparing documentation to provide legal protection and peace of mind. Hopefully the law in the state of Florida will change soon, and all couples, will have the rights afforded by marriage alone.
Pre-need Guardian for Minors
Welcome. One of the biggest fears for any parent is deciding who should care for their child or children, if the worst occurs. Designating a guardian in a Will is one way to name a guardian. However, Florida law provides a procedure that that can assure the outcome will be as you wished.
If a guardian is named in a Will, then a judge would consider that fact, along with other evidence, in determining who will be legally appointed as the guardian. However, the judge will consider other factors to decide whether appointing the person of your choice is in the child’s best interest.
Leaving that question to a judge, who will only hear evidence presented at a one-day hearing, is risky. In other words, who is the best person to make this decision; the parents or the Judge?
Accordingly, it is advisable for parents to execute a pre-need guardian document and file it in the courthouse in the county where the family lives. This takes discretion away from the Judge. If properly done, the pre-need guardian document, assures that the persons the parent has chosen as guardian, will actually be appointed. This would avoid costly and hurtful litigation by family members as to who would best serve the child’s interest. In other words, the question has already been decided by you, and is legally enforceable.