Life Planning

ByGerald 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 CareSurrogate

HIPAA

Burial andFuneral

Designations

Durable 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 on behalf of the principal during the principal’s incapacity. See Florida Statute 765.101(14)

• 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. See Florida Statute 765.305

• 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. See Florida Statute 765.204(3)

Appointing Health Care Surrogate• Requirements (Florida Statute 765.202):

– Written document.– Signed by the principal in the presence of two witnesses.– If the principal is physically unable to sign the instrument, the

principal can direct one of the witnesses to sign it in the presence of the other.

– Designated Health Care Surrogate cannot be a witness.– Exact copy of the instrument must be provided to surrogate.– At least one witness shall not be either the principal’s spouse nor

blood relative• Instrument remains in effect unless the document states

a time of termination or is revoked by the principal• A suggested form of a Health Care Surrogate is provided

under Florida Statute Section 765.203

Health Care Surrogate• The surrogate’s authority shall commence when

the attending physician enters into the principal’s medical record that the principal does not have the capacity to make informed health care decisions. If there is a question as to capacity, a second physician shall also evaluate. Authority remains in effect until a determination that the principal has regained such capacity. See Florida Statute 765.204.

Health Care Surrogate Amendment or Revocation

May be amended or revoked at any time by a competent principal:• By a signed and dated writing;• By physically canceling or destroying the original document by the

principal or by another in the principal’s presence and at the principal’s direction;

• By orally expressing the intent to amend or revoke; and• By executing another document that is materially different from the

previously executed advance directive. It becomes effective when it is communicated to the surrogate, health care provider, or health care facility. See Florida Statute 765.104.

Health Care Proxy

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

Proxy Candidates in Order of Priority(See Florida Statute 765.401)

• Court Appointed Guardian;• Patient’s spouse;• Patient’s adult child or the majority of adult children who are

reasonably available for consultation;• Parent;• Adult sibling or majority of siblings who are reasonably available for

consultation;• Adult relative who has exhibited special care and concern for the

patient, who has maintained regular contact with the patient, and who is familiar with the patient’s activities, health, and religious or moral beliefs;

• Close friend; or• Clinical social worker licensed pursuant to chapter 491, or who is a

graduate of a court-approved guardianship program

Living Will - Generally• Purpose is to direct the principal’s instruction to medical

professionals as to providing, 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 765.309

• 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. See Florida Statute 765.112.

Living Will• Requirements (Florida Statute 765.302):

– Written document;– Signed by the principal in the presence of two witnesses, one of who is

neither a spouse not a blood relative;– If the principal is physically unable to sign the living will, one of the

witnesses must sign it in the presence and at the direction of the principal; and

– It is the responsibility of the principal to provide notification to his or her attending or treating physician.

• 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

Procedure for a Living Will• If there is a living will, but no designation of a

surrogate to execute his or her wishes concerning life-prolonging procedures, the attending physician proceeds as directed.

• In the event of a dispute concerning the attending physician’s decision to withhold or withdraw life-prolonging procedures, the attending physician shall not withhold or withdraw life-procedures pending review under Florida Statute 765.105.

Procedure for a Living Will(cont.)

• If a review of disputed decision is not sought within 7 days following the physician’s decision to withhold or withdraw life-prolonging procedures, the attending physician may proceed in accordance with the principal’s instructions.

Determinations Before Proceeding with Living Will(See Florida Statute 765.304(2))

• Principal does not have a reasonable medical probability of recovering capacity so that the right could be exercised directly by the principal;

• Principal has a terminal condition, has an end-state condition, or is in a persistent vegetative state; and

• Any limitations or conditions expressed orally or in a written declaration have been carefully considered and satisfied.

Living WillMay be amended or revoked at any time by a competent principal:• By a signed and dated writing;• By physically canceling or destroying the original

document by the principal or by another in the principal’s presence and at the principal’s direction;

• By orally expressing the intent to amend or revoke; and• By executing another document that is materially

different from the previously executed advance directive. It becomes effective when it is communicated to the surrogate, health care provider, or health care facility.

See Florida Statute 765.104.

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• “Durable” if the power of attorney contains the

words: “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes,” or similar words that show the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent incapacity

• See Florida Statute 709.2104

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.

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 before a notary– Florida Statutes §709.2105

DPOA General Structure

• Opening• Powers• Guidance• Execution

DPOA Agent’s Powers• Standard powers – Florida Statute 709.2201• Special powers if the principal signs or initializes

next to each specific enumeration of authority – Florida Statute 709.2202

• Agent is authorized to act in a limited fashion with a particular matter as specified

DPOA Agent’s Powers (cont.)

• Common powers included in DPOA:– Manage, buy/sell, lease, mortgage real property

interests;– Buy/sell, exchange tangible personal property;– Make health care decisions– Invest on behalf of principal in assets/securities;– Execute stock powers;– Contract in various business affairs;– Participate in litigation, i.e. sue on behalf of principal

DPOA Agent

• Cannot:– Execute or revoke any will or codicil for the principal;– Vote in a public election on behalf of principal;– Make any affidavit as to personal knowledge of the

principal; – Exercise powers and authority granted to the principal

as trustee or as court-appointed fiduciary and– Perform duties under a contract that requires the

exercise of personal services of the principal

Effective Date of Power• The powers are exercisable as of the date of execution. See Florida

Statute 709.2108(1)• If the DPOA was executed before October 1, 2011 and has not been

exercisable before that date, the DPOA becomes exercisable upon delivery of the affidavit of licensed physician who has primary responsibility for treatment and care of the principal as of the date of the affidavit. See Florida Statute 709.2108(2)

• There is also a provision that the DPOA becomes effective upon the future deployment of the principal for armed services duty. See Florida Statute 709.2106(4) and 709.2108(3)

POA Termination(Florida Statutes 709.2109)

• Principal has died;• Principal becomes incapacitated, if the POA is not durable;• Principal is adjudicated totally or partially incapacitated by a Court

unless the Court determines that certain authority granted by the POA is to be exercisable by the agent;

• Principal revokes the POA;• POA provides that it terminates;• The purpose of the POA has been accomplished; or • The agent’s authority terminates and the POA does not provide for a

successor to act under a POA.

Agent’s Authority Terminates(See Florida Statute 709.2109)

• Terminates when– Agent becomes incapacitated, resigns, or is

removed by a court; – Action is filed for the dissolution or annulment

of the agent’s marriage to the principal or their legal separation unless the POA otherwise provides; or

– The POA terminates.

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.

• See Florida Statute 732.102

Guardianship• Preneed Guardian Designation (See Florida Statute

744.3045)– Written declaration that names such guardian to serve

in the event of the declarant’s incapacity– Signed by declarant in the presence of at least two

attesting witnesses present at the same time– Suggestion to the Court as to preference

• Court appoints Limited/Plenary Guardian• No access to funds; restricted depository• Preneed Guardian for Minor (See Florida Statute

744.3046)

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 BuildingOne Southeast Third Avenue, Suite 1940Miami, Florida 33131

• Telephone Number: (305) 760-8888• E-mail: gerald@dhgpl-law.com• Twitter: gpprobate• LinkedIn