MY SPECIALTIES
WILLS & TRUSTS
A last will and testament is one of the important parts of a comprehensive estate plan. Should a person die without a will, you are said to have died "Intestate". Florida law will then determine how your assets are distributed.
Important Facts about Wills:
A will has no legal authority until after death.
A will does not help should you become incapacitated.
A will does not insure that your estate will not need to be probated.
If you have minor children, it is extremely important to have a will in place, that appoints and nominates the guardian of your children, should something happen to both parents. By naming the guardian, you are avoiding a family fight over who is to be the guardian. It helps to insure that your children will be raised by whom you want and how you want.
LIVING WILL
The Florida Legislature has recognized 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 or procedures which would only prolong life when a terminal condition exists. This right, however, is subject to certain interests of society, such as the protection of human life and the preservation of ethical standards in the medical profession. To ensure that this right is not lost or diminished by virtue of later physical or mental incapacity, the Legislature has established a procedure within Florida Statutes Chapter 765 allowing a person to plan for incapacity, and if desired, to designate another person to act on his or her behalf and make necessary medical decisions upon such incapacity.
Every competent adult has the right to make a written declaration commonly known as a "Living Will." The purpose of this document is to direct the provision, the withholding or withdrawal of life prolonging procedures in the event one should have a terminal condition. In Florida, the definition of "life prolonging procedures" has been expanded by the Legislature to include the provision of food and water to terminally ill patients.
HEALTH CARE SURROGATE
Any competent adult may also designate authority to a Health Care Surrogate to make all health care decisions during any period of incapacity. During the maker's incapacity, the Health Care Surrogate has the duty to consult expeditiously, with appropriate health care providers. The Surrogate also provides informed consent and makes only health care decisions for the maker, which he or she believes the maker would have made under the circumstances, if the maker were capable of making such decisions. If there is no indication of what the maker would have chosen, the Surrogate may consider the maker's best interest in deciding on a course of treatment.
Both the Living Will and the Designation of Health Care Surrogate may be revoked by the maker at any time by a signed and dated letter of revocation; by physically canceling or destroying the original document; or by means of a later executed document which is materially different from the former document. It is very important to tell the attending physician that the Living Will and Designation of Health Care Surrogate have been revoked.
REVOCABLE LIVING TRUST
A Revocable Living Trust is a document that establishes a separate entity (the trust) to hold legal title to assets while the grantor is still alive. The grantor names trustees to manage the trust assets according to the Trust terms. Usually, the grantor will manage the trust assets for her or his own benefit while alive and healthy.( be her/his own trustee).
The trust will contain terms naming a successor trustee, who will manage and distribute the trust assets, upon the grantor's disability or death.
A well drafted trust can accomplish guardianship and/or probate avoidance.
ESTATE & TRUST ADMINISTRATION
Probate is the method by which the assets of a deceased person are gathered, creditors paid, and the remainder of the estate distributed to beneficiaries for their inheritance.
Assets owned solely by the deceased person are subject to probate. Assets that pass by means of title, such as real estate titled as "Joint Tenants with Rights of Survivorship," or bank accounts titled as "Transfer on Death", assets in a living trust, are not subject to the probate process. Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts are also not subject to probate.
Probate is filed in the Probate division of Circuit Court. The Probate process can take some time to complete. Most of the responsibilities and actions of the Personal Representative of your estate will require the judge's approval.
A well drafted trust can accomplish the voidance of probate. However, the trust must be also be administered. The beneficiaries must be contacted, assets managed, potential creditors notified, debts, taxes and final expenses paid. Any remaining income and assets must be distributed in compliance with the trust terms.
Our firm can assist your successor trustees with the complexities of administering your trust or handling the probate of your estate. We are here to guide you through the process all along the way.
POWER OF ATTORNEY
A Power of Attorney is a legal document delegating authority from one person to another. In the document, the maker of the Power of Attorney (the “principal”) grants the right to act on the maker’s behalf as their agent. What authority is granted depends on the specific language of the Power of Attorney. A person giving a Power of Attorney may make it very broad or may limit it to certain specific acts.
A Power of Attorney terminates if the principal becomes incapacitated, unless it is a special kind of Power of Attorney known as a “Durable Power of Attorney.” A Durable Power of Attorney remains effective even if a person becomes incapacitated. However, there are certain exceptions specified in Florida law when a Durable Power of Attorney may not be used for an incapacitated principal. A Durable Power of Attorney must contain special wording that provides the power survives the incapacity of the principal. Most Powers of Attorney granted today are durable.
The authority of any agent under a Power of Attorney automatically ends when one of the following things happens: (1) the principal dies, (2) the principal revokes the Power of Attorney, (3) a court determines that the principal is totally or partially incapacitated and does not specifically provide that the Power of Attorney is to remain in force, (4) the purpose of the Power of Attorney is completed, or (5) the term of the Power of Attorney expires. In any of these instances, the Power of Attorney is terminated. If, after having knowledge of any of these events, a person continues to act as agent, he or she is acting without authority.
A Power of Attorney may avoid the necessity of a guardianship, If the alleged incapacitated person executed a valid Durable Power of Attorney prior to his or her incapacity, it may not be necessary for the court to appoint a guardian, since the agent already has the authority to act for the principal. As long as the agent has all necessary powers, it may not be necessary to file guardianship proceedings and, even when filed, guardianship may be averted by showing the court that a Durable Power of Attorney exists and that it is appropriate to allow the agent to act on the principal’s behalf.