David Howard Goldberg PL 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 ID: 908276
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Slide1
Life Planning
By
Gerald W. Pierre, Esq.
David Howard Goldberg,
P.L.
Office in Miami, Florida
Slide2Slide3Phases 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
Slide4Life Planning Documents
Slide5Overview
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.
Slide6Advanced 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
Slide7Advance 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. …
Slide8Appointing 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.
Slide9Appointing (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.
Slide10Appointing 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
Slide11Health 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.
Slide12Health 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.
Slide13Health 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
Slide14Proxy Candidates
Spouse
Principal’s Adult child or majority of adult children
Parent
Sibling or majority of siblings
Adult relative
Friend
Slide15Living 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.
Slide16Living 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
Slide17Living 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!
Slide18Durable 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.
Slide19Durable 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
Slide20Purpose 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.
Slide21Types of DPOA
DPOA
without the designation of a health care surrogate
DPOA
with the designation of a health care surrogate
Slide22Power 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.”
Slide23DPOA 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
Slide24DPOA General Structure
Opening
Powers
Guidance
Execution
Slide25DPOA 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
Slide26DPOA 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
Slide27DPOA 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
Slide28Effective 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.
Slide29DPOA 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 accomplished
Note: If just a regular Power of Attorney, the principal’s adjudication of incapacity will terminate the
POA
.
Slide30Recent 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
Slide31HIPAA
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.
Slide32Burial 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
Slide33Burial
Funeral may be paid out of the estate
Social Security Administration and Veterans Administration may have some benefits available to pay funeral expenses
Slide34Will
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
Slide35Without 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.
Slide36Guardianship
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
Slide37Resources
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
Slide38Contact 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