Life Planning

By

Gerald W. Pierre, Esq.

David Howard Goldberg, P.L.Office in Miami, Florida

Phases of Life

• Younger Years– Simple Will

• Middle Years– Complex Will, including provisions for

children, life insurance, etc.• Retirement

– Estate Tax Planning– Incapacity Planning– Insurance Planning

Life Planning Documents

Client

Health Care

Surrogate

HIPAA

Burial andFuneral Designati

onsDurable Power

Of Attorney

Pre-Need

Guardian

Will

Living Will

Overview

• Estate Planning is the set of all the action that a person takes to provide for the orderly and timely settling of his or her affairs after death.

• Estate Plan arranges what will happen to your assets after your death – who and how.

Advanced Health Care Directives

• Florida Statute Chapter 765, which is entitled, “Health Care Advance Directives”, will be the primary resource.

• Two important areas to focus on:– Appointment of Health Care Surrogate– Creating a Living Will

Advance Health Directives - Legislative Intent

• As stated in Florida Statute 765.102(1) and (2):– (1)  The Legislature finds that every competent adult

has the fundamental right of self-determination regarding decisions pertaining to his or her own health, including the right to choose or refuse medical treatment. …

– (2)  To ensure that such right is not lost or diminished by virtue of later physical or mental incapacity, the Legislature intends that a procedure be established to allow a person to plan for incapacity by executing a document or orally designating another person to direct the course of his or her medical treatment upon his or her incapacity. …

Appointing the Right Health Care Surrogate

• Health Care Surrogate is covered under Florida Statute sections 765.201 through 765.205.

• Duties are covered under Florida Statute 765.205.

• Health Care Surrogate can be any competent adult who has been given authority to make all health care decisions during a person’s incapacity.

• Appointment of a guardian affects the surrogate to the extent the Court so orders under Florida Statute 744.3115.

Appointing (Cont.)

• Principal can designate an Alternate Surrogate

• In the absence of a living will, the surrogate can make decisions to withhold or withdraw medical treatment

• Surrogate must be satisfied that principal will not regain capacity so that they can exercise that right and that principal has an end-stage condition.

Appointing Health Care Surrogate

• Requirements:– Written document– Signed in the presence of two witnesses – If the principal is physically unable to sign the living will, one of

the witnesses can sign it in the presence and at the direction of the principal.

– Designated Health Care Surrogate cannot be a witness.– Exact copy must be provided to surrogate

• Remains in effect until terminated by the principal• A suggested form of a Health Care Surrogate is provided

under Florida Statute Section 765.203

Health Care Surrogate

• Is effective only when the attending physician determines in the principal’s medical record that the principal does not have the capacity to make informed health care decisions.

Health Care Surrogate Revocation

• By a signed and dated letter of revocation• By physically canceling or destroying the

original document• By orally expressing their intent to revoke• By executing another document that is

materially different from the original.

Health Care Proxy

• Comes into effect where the principal has neither executed an advance directive nor appointed a surrogate to execute an advance directive or the designated surrogate is not available to make medical decisions

Proxy Candidates

• Spouse• Principal’s Adult child or majority of adult

children• Parent• Sibling or majority of siblings• Adult relative• Friend

Living Will - Generally

• Purpose is to provide the principal’s instruction to medical professionals as to the provision, withdrawing, and withholding of life prolonging procedures in the case where the patient has a terminal condition, end-state condition, or is a persistent vegetative state.

• Living Wills are covered under Florida Statute sections 765.301 through 765.310

• To be effective, the principal must be incapacitated to give instruction and there must be no reasonable medical probability of recovering capacity.

• Florida will recognize a Living Will, which has been signed in another state, if it complies with the laws of that state or is in compliance with the laws of the State of Florida.

Living Will

• Requirements:– Written document– Signed in the presence of two witnesses – If the principal is physically unable to sign the living

will, one of the witnesses can sign it in the presence and at the direction of the principal.

– A suggested form of a Living Will is provided under Florida Statute 765.303, which is provided as a courtesy of The Florida Bar and the Florida Medical Association

Living Will

• Revocation:– At any time, principal can revoke by a signed

and dated letter of revocation– By physically canceling or destroying the

original document– By orally expressing their intent to revoke– By executing another document that is

materially different from the original. Practice tip: remember to notify the principal’s physician of the changes!

Durable Power of Attorney

• Generally: It is a written authorization to represent or act on another's behalf in private affairs, business, or some other legal matter.

• This power is “durable” because it continues even after the principal becomes incapacitated.

Durable Power of Attorney

• A power of attorney that states it is a durable power of attorney and which is executed after October 1, 1995 will survive the incapacity of the maker of such power.– Florida Statutes, §709.2104

• Document allows the transfer of assets from an individual’s name to a trust for the individual’s benefit in the event of incapacity

Purpose of Durable Power of Attorney

• Florida Statute Chapter 709, which is entitled, “Powers of Attorney and Similar Instruments”, will be the primary resource

• Purpose• Individual (the “principal”) executes a document

giving another person (the attorney-in-fact or agent”) the authority (the power of attorney or POA) to act on the principal’s behalf.

Types of DPOA

• DPOA without the designation of a health care surrogate

• DPOA with the designation of a health care surrogate

Power of Attorney for Healthcare

• Document authorizes a trusted friend or family member to make medical decisions for you when you are unable to do so.

• Holder can consent to medical treatments and obtain medical records.

• Similar to powers of a “health care surrogate.”

DPOA Requirements

• Written document• The agent must be a natural person who is 18

years of age or older or a financial institution that has trust powers, has a place of business in this state, and is authorized to conduct trust business in this state.

• Signed in the presence of two witnesses and a notary– Florida Statutes §709.2105

DPOA General Structure

• Opening• Powers• Guidance• Execution

DPOA Agent’s Powers

• Standard powers – Florida Statutes, §709.2201

• Special powers • Agent is authorized to act in a limited

fashion with a particular matter• Power limitations

DPOA Agent’s Powers (cont.)

• Common powers included in DPOA:– Manage, buy/sell, lease real property interests– Buy/sell, exchange tangible personal property– Invest on behalf on principal in

assets/securties– Contract in various business affairs– Participate in litigation, i.e. sue on behalf of

principal

DPOA Agent

• Cannot:– Create a will for you– Enter into a marriage contract– Vote in a public election on behalf of principal– Make any affidavits as to personal knowledge

of the principal– Perform duties under a contract that requires

the exercise of personal services of the principal

Effective Date of Power

• As of October 1, 2011, the powers are exercisable as of the date of execution.

• If an agent seeks to use a springing power of attorney executed prior to October 1, 2011, then the agent must obtain an affidavit from primary physician stating he/she believes the principal lacks capacity to manage property.

DPOA Termination

• Florida Statutes, §709.2109• Agent receives notice that the DPOA has been

revoked• Principal has died• The durable power of attorney provides that it

terminates• The purpose of the DPOA has been

accomplishedNote: If just a regular Power of Attorney, the principal’s adjudication of incapacity will terminate the POA.

Recent Changes to DPOA

.Before October 1, 2011 After October 1, 2011

Springing provisions Power effective upon execution

Blanket powers Enumerated powers, and new “superpowers” requirements

New provisions to protect banks from liability for accepting DPOAs

Document must be signed by 2 witnesses

Document must be signed by 2 witnesses and a notary acknowledgment

Agent has a new duty to attempt to preserve the principal’s estate plan to the extent it is known to the agent.

If co-agents are named, concurrence of both are required

If co-agents are named, each can act independently

HIPAA

• HIPAA Release Authorization - Health Insurance Portability and Accountability Act of 1996 (HIPAA)

• As noted by the Florida Medical Association, HIPAA’s purpose was to provide consumer with greater access to health care insurance, provide privacy to health care data, and provide national standardization and greater efficiency in the health care system.

Burial and Funeral Designations

• Arrangements can be dictated in the last will and testament.

• Disposition of the body (cremation, burial, or donation)

• Type of ceremony (Catholic, Jewish, Christian, etc.)• Funeral home to handle the arrangements• Individual to officiate• Place or location of the ceremony• Cemetery or burial plot• Disposition of ashes• Type of casket

Burial

• Funeral may be paid out of the estate• Social Security Administration and

Veterans Administration may have some benefits available to pay funeral expenses

Will

• Directs how the estate will be handled and received by the heirs; must be in writing

• Distributes assets through the probate process

• Nominates preneed guardian for minor children

• Establishes testamentary trusts for heirs• May reduce estate taxes

Without a Will

• Florida legislature decides who gets what assets.

• If the decedent only has lineal descendants, first $60k of estate goes to spouse, then split 50/50 between spouse and descendants.

• If the decedent has non-lineal descendants, then estate is split 50/50 with spouse and descendants.

Guardianship

• Preneed Guardian Designation– Written declaration– Two attesting witnesses– Suggestion to the Court as to preference

• Court appoints Limited/Plenary Guardian• No access to funds; restricted depository

Resources

• Florida Statute Chapters 709, 732, 744 and 765

• The Florida Bar, Consumer Information Section

• The Florida Medical Association• Florida Estate Planning by Brian V.

McAvoy, Abraham M. Mora, and Shelly Wald (West’s Florida Practice Series)

• Beliefnet

Contact Information

• David Howard Goldberg, P.L.

SunTrust International Building

One Southeast Third Avenue, Suite 1940

Miami, Florida 33131• Telephone Number: (305) 760-8888• E-mail: gerald@dhgpl-law.com