Florida Estate Planning Lawyer Blog

One important aspect of the estate planning process is determining what will happen if one day you become incapacitated. The decisions that you make on a day to day basis will no longer be possible, therefore you will be required to rely on someone else to make these decisions for you. Two positions, the Florida Health Care Surrogate and Florida Durable Power of Attorney, can serve as decision makers when your time of need arises.

The designation of a Florida Healthcare Surrogate is vital to the estate planning process because this person will make the medical decisions for you in a situations where you are unable to do so. This does not mean that the person will always make medical decisions for you. Only when an individual becomes incapacitated to the point that the primary physician decides he/she can no longer make medical decisions for themselves. Situations such as this often arise when someone is unconscious.

A Florida Durable Power of Attorney determines your financial matters in the event you become incapacitated. It is important to choose a trusting person to whom you can assign this power because of the many responsibilities he or she will have. You can control the degree of power the person chosen has over financial matters but under most circumstances they will have complete control over your banking transactions, real estate transactions, and securities exchanges. In some cases this person can even run your business for you by making contracts and running the day to day operations.

These decisions involve imperative decisions to your estate and future should anything happen to you. Discuss these estate planning issues with your Jacksonville Estate Planning Lawyer who can provide guidance and expertise in this sensitive area of law.

If you think its time to review your Florida Will or Florida Estate Planning Documents contact a Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer to review your documents before you begin to melt.

The Trials and Heirs blog\ recently had an article about how to avoid exploitation of the elderly by a family member. They recommend

1 Getting Expert advise who knows the ins and outs of estate planning. I would also recommend using a Florida Estate Planning Lawyer who is familiar with Florida Elder Law.
2. Be careful of Joint accounts as they can take the money or create ineligibility for nursing home coverage.
3. Consider "Springing" Powers of Attorney or as we call them contingent Durable Powers of Attorney as they only give powers once you are incapacitated.
4. Choosing Wisely which may mean not choosing a family member or the oldest child because of emotional reasons.
5. Having Checks and Balances by using more than one person to make decisions and to avoid fights.
6. Selecting someone to monitor your accounts. This person can be a trusted advisor and should have the ability to question and stop inappropriate actions.

These are issues that should be dealt with in Florida Estate Planning as well as to avoid abuse of the elderly. To discuss your concerns or issues contact a Florida Estate Planning Lawyer

Many of my Jacksonville Estate Planning clients ask me when and how often they should review their Florida Estate Plan. I like to recommend that people take a look at their situation on a yearly basis and if they notice any of the following, they should make an appointment with their Florida Estate Planning Lawyer.

1. Change or contemplation of change in Marital status;
2. Death of spouse;
3. You or your spouses' health changes;
4. Death or change in the health or marital status of a trustee, executor, guardian, or beneficiary;
5. If you change your residence or move to another state;
6.. Change in or anticipation of the number of children or grandchildren whether by blood or adoption. Consider step-children also;
7. Any disabilities, health issues, or significant factors on lifestyle of children or grandchildren;
8. If you buy, sell, or contemplate buying or selling a business.
9. Upon the discovery of a hereditary issue that will or might affect you in the future; or
10. Change in tax law or its been more than two years since you reviewed your plan with your attorney.

We offer complimentary Florida Estate Planning reviews for our clients and those who have used another attorney in the past. Our goal is to provide the best protection for your and your family members. We often find that even some of the most expensive estate plans do not take into consideration the divorce or issues with your children. While some of us like our children-in-laws better than our own children, many do not want the future ex-spouse of our children to inherit 1/2 our our child's inheritance.

A couple was recently charged with theft and elder abuse for taking money from their elderly parents, under authority of a power of attorney to pay for personal expenses. These included vacations, plane tickets, lodging and meals. Matthew D. Gardner an Iowa Estate Planning Lawyer wrote about this case and the increasing frequency of elder abuse in the past year.

A Power of Attorney grants the agent (attorney-in-fact) broad powers to act in the best interest of he person. Often agents who accept this power do not understand that the money is not theirs to use as their own but the authority grants the agent the power to act in the other person's best interest.

If you suspect that someone is misusing the Power of Attorney granted to them, report the information immediately to the local police who will be able to properly investigate the case. If you have been affected by this misuse you may have a claim against the agent for the harm they have caused you and should Contact a Florida Estate Planning Lawyer

Recently we have begun seeing more cases involving agents who abuse their power of attorney in order to benefit themselves.

Most people do not realize that once they have become an agent for an individual, their duty is to act in the best interest of the individual and not for their own benefit. Sometimes agents make gifts to themselves or change the way bank or stock accounts are title so that the become the beneficiary upon the death of the individual. These actions are violations of the agents fiduciary duty and self dealing. Often what is done interferes with someone's right to an expectancy as a beneficiary or owner of an account.

In addition to creating liability to the beneficiary or the decedent's estate, in Florida such actions can also create criminal liability under Florida's Elder Abuse Statutes. If you have been accused of actions like these it is important to coordinate your defense with a Jacksonville Criminal Defense Lawyer who is familiar with Florida Abuse of the Elderly.

It is important to file a caveat or lis pendens as soon as possible to prevent the assets from being transferred to those who are without notice of these potential claims. Filing a caveat can make sure you receive notice prior to a will being admitted and a personal representative being appointed by the Florida Probate court.

If you believe your inheritance has been adversely affected by the actions of an agent acting under a durable power of attorney please Contact a Florida Estate Planning Lawyer to discuss an action against the agent or the estate.

There has been an effort for many years in NY to reform the POA laws to make agents more accountable and reduce the incidents of financial abuse. Governor Patterson signed the bill into law last week and it is effective in less than 30 days!! Agents are now required to sign POA and Principal must sign an addendum to grant gifting powers to agent.

As many residents of New York and Florida travel back and forth it might be important to review your Florida Durable Power of Attorney if your NY based agent intends to make gifts.

The bill is Chapter 644 of 2008 [Assembly bill A6421-B (Weinstein) Senate bill S4996-B (Volker)]
Download NY POA Bill

I recently receive a copy of Quicken Willmaker 2009. I have previously written about many articles about the unintended results that occur with Do It yourself and Free Estate Planning Documents created by individuals without the advice of counsel and the problems with online document preparation services like LegalZoom and RocketLawyer.

I decided to try out a few of the documents in Quicken to see if they had improved the quality and accuracy of their Florida documents. Last week I wrote about problem with the Quicken Willmaker 2009 Durable Power of Attorney. This week I will be looking a the Revocable Living Trust. I have previously written about the many problems in using Quicken to create a Firearms Trust but for this article I will be focusing on the typical issues with regular estate planning and living trusts.

1. No free updates and old language, in order to keep your trust up to date, you need to purchase the software every year and hope they have dealt with changes in your state laws. Quicken seems to be slow at incorporating small or significant changes in the law. The changes in the new trust code from Florida in the years 2006 and 2007 have not been incorporated into the software. Quicken does not let you know what years statutes its language is based upon. Quicken states that when their users report problems they try to fix the program. Unfortunately, their users are not lawyers, and their users never find out about the problems. Their family may find problems when it is to late to make changes, but they have no way to ask, nor to they attempt to ask the beneficiaries to report problems.

2. Review your document is advice given to the users by Quicken. Quicken's instructions also state to make sure that your document says exactly what you want it to. Although Quicken recommends that you have your document reviewed by an attorney, they neglect to mention that useful advice in their instructions under the review section. Living trusts are complicated documents, how the state law interprets the language you choose is complicated. Lawyers have differing interpretations, how can a non-lawyer pretend to understand what the outcome of the language they choose will be. Want proof of this, check out Do It yourself and Free Estate Planning Documents and see some of the results that have occurred when users attempted to make their own trusts and wills.

3. Register your trust with the court? Quicken incorrectly advises that you must register your living trust with your local court. Although there are some states that do require this they incorrectly state that it is a requirement in Alaska, Colorado, Florida Hawaii, Idaho Maine, Michigan, Missouri, Nebraska, and North Dakota.

4. Quicken WillMaker Doesn't Provide Legal Advice. The instructions state later that Quicken published legal forms that are useful in many situations but they can not tell you whether or not a form is right for you, given your circumstances. Only a lawyer can do this and you should consult a licensed attorney in your state.

The Trust

5. Part 2 of the trust declares that the assets mentioned in the trust have been delivered. While this may work for an assignment of interest, anything requiring a deed can not be transferred by this language. Individuals should not rely on this misleading statement and believe that their assets are transferred because they sign a sheet of paper that states that they have.

6. Revocation and Amendments: The Quicken trust allows revocation after one of the grantor's dies. Typically a revocable trust becomes irrevocable and cannot be changed once a settlor or grantor dies. Quicken does make this distinction when dealing with an amendment and states that the trust cannot be amended once a Grantor dies. I am not sure why or how they allow a trust to be revoked by not amended after the death of a Grantor.

7. Amendment by power of attorney: Florida case law states that a trust must specifically allow for amendment by a durable power of attorney, and the durable power of attorney must authorize the act specifically. The quicken trust includes language that the trust shall not be amended by an agent unless the document creating that power authorizes the amendment. This may or may not comply with the case law. It would be simple to ensure that it did comply compared to the language that is used.

8. Income. The Grantors are required to take all income from the trust at least annually. It would seem that this creates assets that are subject to probate and may not be what the individuals desire.

9. Successor Trustee. The successor trustee is chosen automatically but there does not appear to be an ability for someone else to choose a more appropriate trustee at the time one is needed. Quicken does give the last serving trustee the ability to appoint a new trustee if the successor trustee is unable or unwilling to serve. What happens if the trustee ceases serving because of death, who would have the power to appoint a new trustee? Quicken leaves this question unanswered.

10. Compensation. While Quicken allows for several choices for compensation, their no compensation choice does not contemplate the need to have a professional or corporate trustee.

11. Powers. The Quicken trust states that the trustee has all the authority and powers allowed or conferred on a trustee under Florida law. They do not tell you what these powers or authorities are or where to find a list of them. Also are they the powers granted when the document was signed, or when one goes to use the powers. While this may not seem important one should consider the substantial changes made in the area of a trustee's powers within the last 2 years in Florida.

12. Incapacity: Quicken gives the power to determine incapacity to a person, rather than a court conservator or guardian, or physicians. Under this trust it would be very easy for your children or whom ever you select to declare you incapacitated, remove you a trustee, and appoint a successor trustee of their choice.

13. Beneficiaries. Although quicken does appear to do a better job of checking the names of a beneficiary to make sure it is not a grantor, they only look for an exact match and do not question names that are close or provide a warning for any name. I found that it was possible to name yourself as your own beneficiary using a slightly different name, misspelling, or middle initial. This creates several problems and can void the trust.

14. Survivorship. The quicken trust voids a gift to a beneficiary if that beneficiary dies within 120 hours. This can cause some big problems when there are large unpaid medical bills related to the death of a beneficiary. To deal with this issue completely you should contact an estate planning lawyer.

15. Spendthrift provisions. Quicken does not make a mistake in this area because they do not address the concept.

16. Property transfer. Quicken does not address the potential for a re-evaluation of property taxes upon the transfer of a piece of property into the trust when the names on the trust are different than the current title on the property. Nor does quicken address the requirement that taxes may be assessed.

17. Choice of law, venue, arbitration, required notices under Florida Trust code. Quicken does not address these, perhaps they are not important. Whether that is true depends on your circumstances and what happens in the future, where you live when you die, where your beneficiaries live when you die. I personally feel that every trust should address these issues including the requirements of the new Florida Trust code, but if you use Quicken you will not have the benefit of these provisions either.

There are many mistakes in the Quicken documents, most disturbing might be some of the things that are not included in a Quicken trust. Quicken gives none of the flexibility to a trust that make it useful for the common person. A trustee under a Quicken trust could not do anything without creating liability to a beneficiary because by default they must act as a prudent trustee. If you have a trust created by Quicken 2009, 2008, 2007 or a previous version, you should have it reviewed by an estate planning lawyer. If you are in Jacksonville or anywhere in Florida Contact us about reviewing your Quicken Revocable Trust.

I recently receive a copy of Quicken Willmaker 2009. I have previously written about many articles about the unintended results that occur with Do It yourself and Free Estate Planning Documents created by individuals without the advice of councel and the problems with online document preparation services like LegalZoom and RocketLawyer.

I decided to try out a few of the documents in Quicken to see if they had improved the quality and accuracy of their Florida documents.

Problems and issues I encountered with the Quicken Durable Power of Attorney.

1) Willmaker 2009 now attempts to verify duplicate names but only catches them in the event that they are spelled exactly the same, they do no use any fuzzy logic to find and warn about names that are close. For Example David Goldman could be the agent for Dave Goldman, David M. Goldman, or David Michael Goldman. Although it will catch an exact duplicate, this problem allows for potentially invalid documents to be created.

2) The instructions suggest that the DPA must be filed at the courthouse to become effective, this is not true in Florida.

3) The instructions suggest that a revocation is not effective unless you file it with the courthouse and notify anyone who has a copy with the revocation. Although this is a good idea, the point of filing it with the courthouse is to put the world on notice. It is impossible to know everyone who would have received a copy or acted upon the validity of a Durable Power of attorney in the past. This can cause the individual to spend more than $120 in unnecessary filing fees.

4) The document does not comply the the Florida Statutes for Durable Powers of Attorney and as such the individual or agents have no right to sue and collect costs and fees associated with the improper denial of authority granted under the Durable power of attorney.
5) The document is effective upon the execution of the agreement, there is no option for deployment contingent (becoming effective upon incapacity), nor is there an option to limit the time that the document will be effective for. This is significant problem because it assumes that everyone wants to grant their agent the power to do anything they want and right now. In fact, very few individuals want to grant this type of power, and most who initially do, change their mind after learning what they will be doing from an attorney.

6) Their instructions warn that their conversion utility may not make an accurate conversion to Microsoft Word or RTF formatting so you need to verify that the versions are the same. This seems like something that they should have done prior to releasing the product to the public.

7) They inaccurately state that the witnesses signatures must appear on the same page as yours.

8) they do not save the footers and suggest that you break each section into a unique document and insert footers with the instructions found in the manual. This is not necessary and for most documents the footers are unnecessary and not a requirement of Florida Law.

9) States that the agent must have the original Durable Power of Attorney to act. A copy of the Durable Power of attorney is just as valid as the original. In fact, if you follow their MANDATORY (but not really mandatory) instructions of filing the document in the county records the original may be kept they the county.

10) They recommend asking your Agent not to use it unless your incapacitated. There is no requirement for them not to act, and no liability for the agent if he does act. This is not the proper way of dealing with this issue under the Florida Statutes.

11) They do have a nice warning which states that if you do not understand anything about this document you should ask a lawyer to explain it to you. We are not sure if that warning is intended for the agent or the principal.

12) Quicken appears to have a provision which creates a Pre-Need Guardian designation within their power of attorney. Typically this is a separate document which is filed in the county records. Although, if you file the recommendation and file the document in the county records, there would appear to be a public record of this request, it might be overlooked or ignored by the court because it is hidden inside a power of attorney. In addition, by statute, a DPA becomes ineffective once you receive notice of a pending petition for guardianship. This would appear to make your nomination invalid during that time.

SUMMARY: While the Quicken WIllMaker can produce a valid Durable Power of Attorney in Florida banks, businesses, and others can refuse to honor it without liability because it does not comply with the Florida statutes. You can also create invalid document, will unnecessarily spend more than an additional $120 in state filing fees, create a potentially invalid pre-need guardian selection, and expose yourself to unnecessary risk and liability.

Conclusion: For around the same price as the software and the recording fees, you can have an attorney discuss your needs and draft a document that provides you additional protections that comply with Florida law. In addition, for most people a deployment contingent Durable Power of Attorney is what is needed compared to the higher risk document created by Quicken. There are many mistakes and misguidance found within the generic documents created by the software package.

If you are looking for a Free or Low cost Durable Power of attorney, it may be less expensive and a better value to contact a Florida Estate Planning Lawyer.

Google Health just began offering personal health records on the Web. They are joining WebMD, Microsoft, and Revolution Health.

These services are designed to help consumers manage their health care and medical spending records.

Google record allows users to send personal information to some clinics or to pull records from the clinic into the Google personal file. One clinic that has begun working with Google is the Cleveland Clinic.

As of the launch, more than two dozen companies announced a partnership with Google Health. Some of the companies include Walgreens, CVS, the American Heart Association, Quest Diagnostics, Beth Israel, Deaconess Medical Center, and the Cleveland Clinic.

If you plan to subscribe to a service like this make sure you deal with it in your Durable and Medical Powers of Attorney so that the benefit from these services is not lost by your subsequent incapacity.

To discuss how to integrate these services into your Florida Estate planning documents Contact a Jacksonville Estate Planning Lawyer.

POWERS OF THE ATTORNEY IN FACT AND LIMITATIONS IN FLORIDA

Except as otherwise limited by statute (below), by other applicable law, or by the durable power of attorney, the attorney in fact has full authority to perform, without prior court approval, every act authorized and specifically enumerated in the durable power of attorney. Such authorization may not include:

1. Perform duties under a contract that requires the exercise of personal services of the principal;
2. Make any affidavit as to the personal knowledge of the principal;
3. Vote in any public election on behalf of the principal;
4. Execute or revoke any will or codicil for the principal;
5. Create, amend, modify, or revoke any document or other disposition effective at the principal's death or transfer assets to an existing trust created by the principal unless expressly authorized by the power of attorney; or
6. Exercise powers and authority granted to the principal as trustee or as court-appointed fiduciary.

PROPERTY SUBJECT TO DURABLE POWER OF ATTORNEY IN FLORIDA.
Unless otherwise stated in the Florida durable power of attorney, the durable power of attorney applies to any interest in property owned by the principal, including, without limitation, the Principal's interest in all real property, including homestead real property; all personal property, tangible or intangible; all property held in any type of joint tenancy, including a tenancy in common, joint tenancy with right of survivorship, or a tenancy by the entirety; all property over which the principal holds a general, limited, or special power of appointment; chooses in action; and all other contractual or statutory rights or elections, including, but not limited to, any rights or elections in any probate or similar proceeding to which the principal is or may become entitled.

If you have questions about the validity or scope of your Florida Durable Power of Attorney Contact a Florida Estate Planning Lawyer

Once an Agent (Attorney in fact) receives written notice which requires a signature, their powers under the Durable Power of Attorney are suspended until the court determines incapacity. The court may reinstate the Durable Power of Attorney for an emergency, when a petition if file upon the court showing the nature of the emergency, the property or matter involved, and the power to be exercised by the attorney in fact.

Notwithstanding the provisions above, a proceeding to determine incapacity must not affect any authority of the attorney in fact to make health care decisions for the principal, including, but not limited to, those defined in chapter 765, unless otherwise ordered by the court. If the principal has executed a health care advance directive designating a health care surrogate pursuant to chapter 765, the terms of the directive will control if the two documents are in conflict unless the durable power of attorney is later executed and expressly states otherwise.

If the person has not received written notice of the proceeding for which they were required to sign for, any third party may rely upon the authority granted in a durable power of attorney that is not conditioned on the principal's lack of capacity to manage property until the third party has received the required notice. A third party may, but need not, require the attorney in fact to execute an affidavit.

If the Durable Power of Attorney is deployment contingent, any third party may rely upon the authority granted in a durable power of attorney to manage property as defined in Florida Statute 744.102(11)(a) only after receiving the affidavits provided in paragraphs (c) and (d), and such reliance shall end when the third party has received notice.

Continue reading "Guardianship and Durable Power of Attorney in Florida" »

Often clients do Florida Estate Planning in anticipation of an overseas trip or international relocation. They often ask if they should make special considerations because of their anticipated location.

Generally we advise clients that the planning is basically the same even if they will be living overseas for an extended period of time. The one area where there may be differences is in their Durable Power of Attorney where it might be advisable to make changes.

These changes require an evaluation of the current and anticipated needs of the individual client and cannot be generalized.

If you are planning an international trip, going on a cruise, or moving overseas for a time, you should contact a Florida Estate Planning Lawyer to discuss or review your Florida Estate Planning Documents .

The Wall Street Journal online has an article on How to Ensure Relatives Don't Rip You Off. Also the Toronto Estate Law Blog has an article today on POA abuse.

The article mentions several things that can be done to safeguard clients.
1) a provision requiring regular accounting statements from the agents.
2) Naming co-agents who can serve as checks on each other.
3) naming a supervisor who has the power to fire an agent

When setting up a Power of Attorney, you want to name an agent while you're still in good health and can make clear decisions. Typically, such documents are included as part of a standard Florida estate-planning package, which also includes a Florida Will and health-care proxy giving an agent the power to make health decisions when you can't.

Powers of Attorney are often a tough balancing act: You want them to be simple for trusted family members or friends to implement, without too many hoops each time a transaction is made. But you also want to avoid giving agents a license to steal.

To further protect yourself, you can require that your agent provide family members, or a third party, such as a lawyer or accountant, with regular accounting statements. Another strategy is to name co-agents. While that can be a burden -- many transactions, for instance, would need two signatures -- it can also create a system of checks and balances. In some cases, lawyers appoint an additional safeguard: a "protector," who has the power to replace the agent if there is wrongdoing.

Another key point: Make sure to carefully lay out exactly what powers you want your agent to have. For instance, you can limit the agent's power to make gifts of your property, so they can't just give money to themselves. Spell out under what conditions gifts can be made, how much and to whom.