New FL Health Care Surrogate Statute
Did you know Florida’s Health Care Surrogate law changed October 1, 2015? Two substantial changes were made to the law.
First, you can now designate a health care surrogate for a minor. Why would this be important? Maybe your sending your child to stay with their grandparents for the holidays, or you will be out of town on business and your friend will be watching your children while you are out of town. The designation can be for a short duration of time or it can last indefinitely.
The second change is that the principal has the option of giving the surrogate authority to make decisions immediately. The first thing that comes to mind is, what if my surrogate and I disagree? As long as the principal has capacity, the surrogate’s decision and judgment is always secondary. So, how is this different than the previous standard? Well, under the previous statute, the primary care physician had to make a somewhat formal decision that the principal was incapacitated prior to the surrogate having authority. Not a huge problem except when a principal drifts from moments of capacity to those of incapacity. Once capacity was restored momentarily, another formal decision had to be made before a surrogate could make decisions.
In order for the health care surrogate to have immediate authority to act, the principal must not initial the paragraph granting immediate authority.
I’m not sure this new statute changes things for most people in most circumstances, however it does make it slightly clearer what processes a medical facility has to or doesn’t have to take before accepting the surrogate’s authority to act.
Question about Lady Bird Deed
Question:
What does it mean in a Lady Bird deed that the grantor reserves the right to dispose of the property “IN WHOLE OR IN PART, in fee simple”? If he makes a subsequent conveyance by quit claim deed, does he automatically convey the whole property, if nothing else is specified? Please tell me what do those words mean: “IN WHOLE OR IN PART” - this is a condominium
Answer:
It just means that the property can be transferred in whole (100%) or can be partially transferred. The partial transfer can be a fractional interest ½ (50%) or through the use of a life estate deed that transfers only a remainder interest in the property.
A lady bird deed is also known as an enhanced life estate deed. Jim transfers the condo to Bob, but Jim reserves the right to sell, re-gift, or otherwise dispose of the property during his lifetime without the approval or signature of Bob. Until Jim dies, Bob has no interest in the property. If Jim wants, to he can sell the property and keep 100% of the proceeds.
A regular life estate deed, if Jim deeds property to Bob, and reserves the right to live on the property for his lifetime. If Jim wants to sell the property, Bob has to also sign the deed. Bob’s percentage ownership would be determined by looking at life expectancy tables which relate to percentage ownership. Each year that passes, Jim’s interest decreases and Bob’s interest increases.
How can I keep my SSI and Medicaid rather than inheritance? What kind of lawyer do I need? have the check, haven’t cashed it.
Question:
I received a $11,000 check last week from my mom’s estate. The will was made before I was disabled. brother and I are beneficiaries. What do I do, can’t keep money or I loose SSI and Medicaid. Can I disclaim my inheritance? I have not cashed the check and don’t want it! It took a long time to get on disability, and I will lose it if I keep money. How do I legally do this?
Answer:
The short answer is YES you can keep the money. You may have to create a special needs trust, but there may be other methods of planning. I have to disagree with the attorney who does not practice in Florida about the cost of such a trust. You should seek the advice of an elder law or special needs planning attorney. There are many good attorneys in West Central Florida that would be able to help you. According to Social Security, technically you have already received the inheritance. You should see an attorney as soon as possible so that it does not cause a disruption in your benefits.
Should I register our Wills with the State of Florida?
The short answer is No. There is no place to register a Will in the State of Florida prior to the death of the individual. According to Florida Statute 732.901, the custodian of the will must deposit it within 10 days with the clerk of court of the county where the individual lived when they died. If the individual lived in Clearwater, but died in a car accident in Tampa, the Will would be deposited with the Pinellas County Clerk’s office since Clearwater is within Pinellas County.
Although required by statute, most Wills are never deposited with the court unless someone intends to open a probate. Of those destined for probate, the vast majority are deposited after the 10 day requirement.
I usually advise people to keep their Will in a fire proof container and make sure your named personal representative knows where it is. I also caution people about placing a Will in a safety deposit box. If the box is not jointly owned, no one will have authority to access the box without court approval. Some attorneys will still hold original Wills for clients. Personally I do not, but I keep a copy in my fire resistant file room.
Does having 50% of my property placed in a trust reduce my homestead exemption?
My mom and I jointly own the property outright. I reside at the residence and it’s my primary residence
Answer:
If properly drafted, placing your ½ interest in the property into the trust should not reduce your homestead exemption. You didn’t say if your mother resides at the house. If your mother does not reside at the house you may only be able to claim 50% of the home as homestead. If that is the case, only ½ of the home’s value will be protected by the save-our-homes cap on property taxes. Consultations with attorneys are not generally that expensive. At the consultation they can go over things that you may not have thought to include in your question.
Proposed legislation could end File and Suspend strategy to maximize Social Security Retirement benefits.
What is File and Suspend? Husband age 67 files for SSR. He suspends his benefits and doesn’t take a check until 70 (benefits increase 8% per year while suspended). His wife also age 67 files to take the spousal benefit. The spousal benefit is half of what her husband would have gotten. At age 70, she can file for her own benefits. Her benefits will have increased by 8% per year while she waited to take her benefits.
http://finance.yahoo.com/news/lose-50-000-future-social-190901690.html
Can they drop my dads ssi and medicaid cause of my mom?
Question:
My mom had a checking account with a few thousand dollars on it, because of this my dads ssi and medicaid are dropped. Its not a joining account. Can we appeal this?
Answer:
Social Security has set a resource limit of $3,000 for a couple. It does not generally matter if the funds are kept in a joint account or individually. Generally a house, car and personal property are exempt from this resource limit. You should seek an elder law attorney in your area to go over this as quickly as possible. You generally have the option to appeal while still collecting benefits or appeal without. If countable resources were below $3,000 your dad may have still been eligible for SSI. In Florida if you have at least $1 of SSI, you get Medicaid.
If the account was not below $3,000 for one day, your dad will likely not win his appeal, but he might be able to get his benefits re-instated as long as the countable resources are back below $3,000. Remember, there are transfer of resource penalties so I would not recommend giving the money away to get below $3,000 unless you’ve met with an elder law attorney and that is part of the plan. Again, please make an appointment with an elder law attorney in your area asap as there are important deadlines when dealing with SSI.
I want to have a living will and have all the funeral and burial arrangements made before the time of my death. How do I do this?
Question:
I’ve seen where families fight and bicker during the death of a loved one and I don’t want that to happen. In the event of my death, my family wiill be too busy to worry about legal matters and funeral arrangements. I want to have all that set up ahead of time.
Answer:
It is hard to tell from your question whether you are talking about a Living Will or a Last Will and Testament. It may be a little oversimplifying it, but a living will tells health care professionals whether or not you want to be kept alive via mechanical means when the sole purpose is to prevent you from dying natural. Generally you should appoint someone to make sure that your wishes are carried out. You also should talk to the person(s) you nominate to make sure that they are willing to carry out your wishes.
A last testament and will type of will deals with the distribution of your individually owned property. Any assets owned by you that do not have some sort of beneficiary designation (bank account, IRA, life insurance) will go through probate unless you’ve taken steps to avoid it. If you own property with someone and it has survivorship rights (real property, bank accounts, vehicles) it will not go through probate. You can easily find forms for both a living will and will online if you’d like. I would of course, highly recommend that you find an attorney near you and develop a plan. You don’t have to be a millionaire to have an estate plan. People will fight over $10,000 just as much as they will over $1,000,000.
As for the funeral arraignments. I’m not crazy about setting a side money in an account, unless it is just for the incidentals that you cannot pre-purchase. There will be no legally binding agreement to make them make the purchase. After experiences the deaths of two close family members, it would have been much easier if they had made the choices ahead of time. You wonder, would they want top of the line, a pine box, or something in between. Many funeral homes are now owned by large corporations so stability is not a huge issue. Some funeral homes put the money in trust, others may sell a life insurance product instead. There are other factors to consider as well. If you hire an estate planning attorney they will also be able to help you make a decision that is right for you. The difference between purchasing a form and hiring an attorney is the personalized advice that you get. It will cost more than $100, but is generally well worth it in the long run. Good luck.
I am one of two beneficiaries to an estate. How exactly do I petition the court a copy of a sealed document in a probate case?
Question:
My sister is the administrator and the other beneficiary. I am named second to administer the estate if she can not. According to the court website, an inventory was filed early October. I have twice asked the lawyer overseeing the probate to send me a copy of that one. He has not. He claims he will send me an updated one before the closing of the estate. As a beneficiary I understand I am entitled to a copy of filed documents.
Answer:
Sorry to hear about the passing of your father and that you are being forced to ask for legal advice at such time.
Probate files are generally not sealed. That is one reason people try to avoid probate since the file generally becomes a public record. Online access to the case however is a different story. Unless you are an attorney of record you cannot get access to the filings online. As a beneficiary you should have been filed with Notice of Administration. Many times attorneys try to get beneficiaries to waive further formal notice of many aspects of the case. This is usually used in probates where everyone generally gets along. Even with a waiver signed, most probate attorneys still send the documents, but things can be done less formally and at a lower cost. You as a beneficiary have a right to the inventory. You have a right to the inventory as filed. You should not have to wait until the end of the probate process. The attorney that you are requesting the inventory from does not represent you. They represent your sister as personal representative of the estate.
You would do well to sit down with a probate attorney and go over your situation in more detail. If the probate was filed in Clearwater, just go down to the downtown court house and go to the probate records department. you might have to pay a small fee for a copy of the inventory but you should be able to view the file for free. You can always take pictures of the pages to avoid being charged the per page fee. The probate process is pretty closely monitored by the court so things usually go as they are supposed to. Unfortunately not all clients are honest with their attorneys and the court can be misled. If you have fears that your sister is not acting in the best interest of you and herself as beneficiaries of the estate, I would again recommend sitting down with a probate attorney to discuss your particular situation. Even if you don’t hire the attorney it almost always worth sitting down and discussing your legal rights and options. There are plenty of probate attorneys in the Clearwater area. You should not have a problem locating a good one.
Is it possible to prove intent to fraud?
Question:
My mom was going to be diagnosed for dementia. Just before her appointment she was taken to the bank and she added her sister as a joint owner. She was diagnosed with dementia within a month. She died from Alzheimer disease. Then 17 days later her sister died. Now we are being told all my moms money goes to the daughter of her sister. Do we have any rights?
Answer:
The short answer as many have stated is yes it is possible.
The long answer is that it is fairly difficult to prove and depending on how much was in the account, it may not be worth litigating. Your question doesn’t state how long ago your mother added your sister to the account. The closer in time she added her to the account and your mother dying from Alzheimer’s the more likely your mother was able to be unduly influenced. In the early stages of dementia, including Alzheimer’s individuals generally still have capacity to make decisions. If not already prepared, one of the first things a newly diagnosed individual should do is sit down with an elder law attorney and discuss getting advanced directives drawn up while they still have capacity.
Unfortunately, instead of seeing an attorney and getting a power of attorney, many people add someone else’s name to a bank account. Usually it is done for connivence purposes with no intent that the other party receive the account upon their passing. Other times, individuals think that the added person would distribute the money as they would have wished. The down side of planning this way is exactly what has happened. Bank personnel do not usually discuss the ramifications of adding names to accounts and make sure that this is what the individual really wants. If your mother had met with an attorney, they likely would have advised her to add someone as a power of attorney to the account so they would have an ability to help your mother and then name a beneficiary to her account. That way there would be no question of your mother’s intent.
Again, you do have rights and a lot will depend on the value of the account as to what path you take. Your best bet is to sit down with an attorney who does probate or wills and trust litigation and discuss all of the facts and circumstances with the attorney. It is probably an uphill battle, but one worth looking into.
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Archived Elder Law Blog Posts
Many of the blog posts come from questions that I've answered for people on AVVO or other legal help websites.
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