Introduction
Death with dignity or should one say living with autonomy? That is the question that many Floridians face in everyday situations, specifically those who fear whether dementia will strike close to home. Using planning alternatives to delegate control and protect autonomy is often referred to as estate planning, but in reality, it is much more than that. By executing a durable power of attorney, health care surrogate, living will declaration and a last will and testament an individual can maintain control over their finances or health, compared to a guardianship where the individual has no control. Injuries, illness or incapacity such as dementia does not have an age associated with it; therefore, it is important to ensure you maintain the ability to control your own destiny should a catastrophe strike. So, one may ask how can I ensure control of my decision making. The answer is simple, make certain you have your estate or life planning complete. While you can make decisions, you can put in place the individuals whom you trust to make decisions for you in the event you become incapable of making such decisions. In Florida, one has the right to execute a durable power of attorney, a designation of health care surrogate, a declaration naming preneed guardian and a living will declaration. These documents are what is referred to as the living documents. One would need these documents during his or her lifetime. Upon the death of the principal, the individual making these documents, the documents become invalid or void. Without these documents a person could potentially need a guardianship.
Dementia
Dementia is on the rise across all fifty U.S. states according to the Alzheimer’s Association. “Someone in the United States develops Alzheimer’s dementia every 66 seconds.” Dementia often strikes the older population. This statistic is startling, and it should give great concern to Americans. Floridians, in particular, should pay attention to this statistic as Florida’s older population is above average. Approximately 1 in 5 residents are 65 and older and the older population is expected to grow by 25 percent by 2025. What is dementia? Dementia is a general term for loss of memory and other mental abilities severe enough to interfere with daily life. While Alzheimer’s is the most common type of dementia, there are many kinds of dementia. Dementia isn’t a specific disease. Instead, dementia describes a group of symptoms affecting memory, thinking and social abilities severely enough to interfere with daily functioning. The cognitive changes that dementia patients suffer from are difficulty reasoning or problem-solving; difficulty handling complex tasks and confusion and disorientation. If an individual has the above-mentioned cognitive limitations, it would be difficult if not impossible to maintain autonomy and manage ones own affairs. Therefore, it is imperative that early in the onset of dementia or prior to a diagnosis of dementia, individuals are afforded the opportunity to do estate planning. Estate planning provides individuals the option of putting individuals in control of their health care and finances in the event they lose the ability to maintain control. There are many estate planning documents that one can put in place, arguably the most important of those documents is the power of attorney.
Power of Attorney
Under English common law at the time of the American Revolution, there was no way to create a document delegating the power to make decisions when the delegator lacked capacity. Legislatures throughout the common law realm have solved that problem by creating types of powers of attorney that would be valid even while the principal is incapacitated. This brings us to the first document discussed in the realm of estate planning. A power of attorney is a legal document delegating authority from one person to another. The principal is commonly referred to as the individual executing a power of attorney. The power of attorney is a document wherein the principal names an attorney-in-fact or an agent. Do not confuse attorney-in-fact with the individual’s attorney-at-law. The attorney-at-law is the individual drafting the document and the attorney-in-fact or agent will be the person named to serve in this document for the benefit of the principal. The principal gives the attorney-in-fact or agent the authority to act on his or her behalf regarding the financial affairs of the principal. The scope of the power of attorney can be as broad or as limited as the principal would desire. The power of attorney gives the agent the ability or control to bind the principal to third parties.
The durable power of attorney is a general broad power of attorney that outlast the capacity of the principal. In Florida, a durable power of attorney is effective the day it is signed, and the attorney-in-fact can use the document immediately. The principal does not have to be incapacitated for the attorney-in-fact to use the document. The idea that the principal does not have to be incapacitated for the document to become effective is alarming to some individuals. This fact alone causes great reserve to individuals who are contemplating their own needs. It is difficult to give up the authority when you are not ready or do not need assistance. However, if you do not execute a durable power of attorney, the alternative in the event one is needed and not executed, is a guardianship. Guardianship proceeds are expensive, intrusive and cause a delay in receiving the help that is needed. Further information regarding Guardianships forthcoming.
There are several variations to a power of attorney. Some of those variations are a limited power of attorney, a general power of attorney, and a durable power of attorney. It is important to make sure what form you are executing as to what uses the document has under different circumstances. For example, a limited power of attorney, is just that. It limits the scope of what can be done by the attorney in fact or the agent. A limited power of attorney can be for such purposes as banking transactions or real estate transactions. A limited power of attorney can only be used for the specified purpose. A general power of attorney can be broad based and give an assortment of powers to the attorney-in-fact or agent; however, it is null and void if the principal subsequently lacks capacity to make decisions. The durable power of attorney is durable in nature because it outlasts the capacity of the principal as previously stated. The attorney-in-fact can use the document throughout the incapacity of the principal if the document has the special wording that provides the power survives the incapacity of the principal. This document is effective from the date it is signed until the death of the principal. Some states have a springing power of attorney, which means that it is effective on the happening of such later event, such as a declaration by a physician that the principal is incapacitated. Florida does not currently recognize a “springing” power of attorney, unless the document was written prior to October 1, 2011. An individual does not have to be incapacitated in order for the agent or attorney-in-fact to use the power of attorney. The power of attorney can be used from the date it is executed.
The whole purpose of a durable power of attorney is to facilitate management of an incapacitated individual’s income and assets, with a minimum of hassle. While the durable power of attorney gives some broad powers, there are some specifics, what can be referred to as the super-powers, that must be enumerated and initialed by the principal. Those powers are as follows:
1. The attorney-in-fact shall have the authority to act as if my attorney-in-fact were me for purposes of creating a revocable or irrevocable trust for any reason which the attorney-in-fact deems advisable and appropriate in my attorney-in-fact’s sole and absolute discretion. The attorney-in-fact shall have the full authority, to transfer any assets the principal may own into a trust previously created or into a trust the attorney-in-fact has created. This authority to transfer assets into a revocable or irrevocable trust is not limited by the size, nature or whereabouts of the asset and includes real property including the homestead, should the principal own such real property, and includes stocks, bonds, mortgages, promissory notes under which the principal is the oblige, and all other assets in which the principal owns an interest, tangible or of mixed nature and wheresoever situate.
2. To amend, modify, revoke or terminate any trust either created by the principal or for the principal by the agent
3. To make a gift. The attorney-in-fact shall have the authority to make gifts of any or all of the principal’s assets, intangible or tangible, whether below or above the federal gift tax exclusion amount under 26 U.S.C. §2503(b) including homestead property, to any person or entity whom the attorney-in-fact decides to be appropriate and reasonable and in the principal’s best interest including the right of the attorney-in-fact to make gifts to the attorney-in-fact or to the attorney-in-fact’s family.
4. To create or change rights of survivorship.
5. To create or change a beneficiary designation.
6. To waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan.
7. Disclaim property and powers of appointment.
Two types of acts may be incorporated by a simple reference to the statues in the power of attorney, meaning when either of these phrases is included in the power of attorney, all of the acts authorized by the referenced statute may be performed by the attorney-in-fact even though the specific acts are not listed in the power of attorney itself. The two acts are as follows:
1. Have all authority to conduct banking transactions as provided in section 709.2208(1), Florida Statutes.
2. Have all authority to conduct investment transactions as provided in section 709.2208(2), Florida Statutes.
It does not hurt to have additional powers enumerated and initialed by the principal. This will help with third parties accepting the documents and the powers therein defined. The additional powers that are important to be enumerated may be as follows:
1. Collect all sums of money and other property that may be payable or belonging to the principal.
2. To execute receipts, releases, cancellations or discharges for any money or property.
3. To prepare, sign and amend from time to time a Trust Agreement on the principal’s behalf as Settlor and/or Trustee, on terms my attorney-in-fact decides to be appropriate, and act as a Trustee for the principal’s income from Social Security and pensions so as to comply with the dictates of the Florida Department of Children and Families or successor agency to enable me to obtain Medicaid benefits.
As one can see this document is a very powerful document. It gives the attorney-in-fact or agent the authority to act on behalf of the principal with any financial decision that needs to be made. While the power of attorney conveys much authority, it does not convey a property interest to the attorney-in-fact or agent. It is not only important that the document be drafted properly to preserve the protection but that it be executed properly. It is important to have an attorney draft the power of attorney as pre-printed forms may fail to provide the protection desired. In Florida a power of attorney must have two witnesses and a notary to be valid. The notary may serve as one of the witnesses. The need for a court proceeding, such as a guardianship, can be eliminated if there is a durable power of attorney document. The principal may revoke a power of attorney at any time by sending a notice of revocation to the agent or attorney-in-fact. As previously stated, the power of attorney is also null and void at the death of the principal. At the death of the principal, an executor or personal representative would need to be appointed to continue to act on behalf of the principal. That individual is appointed through a Last Will and Testament which is discussed later. Under a power of attorney, the courts do not have the authority to oversee the transactions of the agent. In the event of misuse or misappropriations of funds, someone on behalf of the principal would have to act and potentially file an action against the agent to recover funds. An agent under a power of attorney is not required to be bonded, therefore in the event of misuse of the principal’s funds, the principal has no recourse to recoup the money unless a lawsuit is brought against the agent and the agent has funds or assets with which to obtain funds for a judgment. Misappropriation of funds is referred to as elder abuse. Elder abuse includes theft of the person’s money or property. The financial abuse of individuals by the repeated improper or illegal use of their assets is exploitation. The second document in the estate planning realm would be the designation of health care surrogate.
Designation of Health Care Surrogate
Advance medical directive, sometimes called health care proxy or surrogate or a medical durable power of attorney, allows the principal to grant an individual the right to make health care decisions and to have access to medical records. It allows the principal to indicate whom they want to serve in the event that they become incapacitated and unable to make such decisions. After October 1, 2015, a Florida individual may designate a surrogate to make health care decisions even if the client is not determined to be incapacitated. However, if the individual has capacity, their decisions are controlling over those of the surrogate if the directions materially conflict. This document gives the authority to speak with medical professionals regarding level of care needed, surgeries needed or just basic primary care information. This document also allows the surrogate to speak on behalf of the principal to the pharmacist regarding any medications. In the event one suffers from cognitive impairments or confusion as a result of dementia, by having this document in place, the surrogate would have the authority to make the decisions necessary for the continued care of the principal.
Specifically, the surrogate would have the authority to make health care decisions and to provide, withhold, or withdraw consent on behalf of the principal; to apply for public benefits to defray the costs of health care; and to authorize the principal’s admission to or transfer from a health care facility. Additionally, the surrogate will have access to all the principal’s appropriate clinical records and may authorize the release of information and clinical records to appropriate persons to ensure the continuity of the principal’s health care. The surrogate also has the authority to authorize the withholding or withdrawing of life-prolonging or death-delaying procedures in accordance with a declaration the principal may have made. This is the living will declaration which will be discussed later.
Further, the surrogate also has the authority to direct the attending physician to prepare a written medical order that, in the event the principal suffers cardiac or respiratory arrest, cardiopulmonary resuscitation is to be withheld. This is also a do not resuscitate which can be executed ahead of time by the principal. This will be discussed later as well.
Failure to have an advanced medical directive in place might necessarily lead to the appointment of a guardian. Appointment of a guardian or guardianship will be discussed hereinbelow.
Living Will Declaration
A living will is probably better called, “end-of-life treatment instructions.” The living will declaration is a document which identifies that a person does not want to be artificially kept alive. There are three choices an individual can concerning the implementation of a living will. Pursuant to Florida Statute 765.303 the principal has the choice to choose if they have a terminal condition (a condition caused by injury, disease, or illness from which there is no reasonable medical probability of recovery and which, without treatment, can be expected to cause death); or if they have an end-stage condition (an irreversible condition that is caused by injury, disease, or illness which has resulted in progressively severe and permanent deterioration, and which, to a reasonable degree of medical probability, treatment of the condition would be ineffective); or if they are in a persistent vegetative state (a permanent and irreversible condition of unconsciousness in which there is the absence of voluntary action or cognitive behavior of any kind and an inability to communicate or interact purposefully with the environment); and, if the attending or treating physician and another consulting physician have determined that there is no reasonable medical probability of his or her recovery from such condition.
This document directs that life prolonging procedures be withheld or withdrawn when the application of such procedures would serve only to artificially prolong the process of dying, and that a person be permitted to die naturally with only the administration of medical or the performance of any medical procedure deemed necessary to provide the person with comfort, care or to alleviate pain. Do not confuse this document with a do not resuscitate. A do not resuscitate is a form one must get from his or her physician. It is printed on canary yellow paper and it identifies the principal as an individual who does not want to be resuscitated in the event of cardiac or respiratory arrest. This too is a helpful document to have if your decision is not to be resuscitated.
The validity of a living will in Florida is that the principal must sign the document and it must have two witnesses. As long as an individual is competent to participate in health care decision making, the living will has no authority. The Federal Patient Self-Determination Act of 1990 requires hospitals and nursing homes to advise patients upon admission of their rights under state law to refuse medical treatment; therefore, many hospitals routinely provide a living will declaration.
Declaration Naming Preneed Guardian
A declaration naming preneed guardian allows an individual to name the person they would want to serve as guardian in the event of the incapacity of the individual as provided in section 744.3045 of the Florida Statutes. This document is generally signed in the presence of two witnesses and then the original is filed with the Court. In the event of an incapacity proceeding, the courts will refer to this document in preference of appointment of guardian.
Guardianship
In the absence of a durable power of attorney; or if the instrument does not provide sufficient powers and directions to an agent, it may be necessary to apply to the court to appoint a guardian. The guardianship process has many disadvantages, such as expense, delay and loss of privacy. In the event that one has not done the proper planning and later becomes incapacitated, a guardianship would be the only option. An incapacitated person is defined in the Uniform Probate Code (“UPC”) as “any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person. Once one does not have the requisite capacity to execute legal documents, a guardianship would be the next step in the planning process. The goal of a guardianship of an elderly or disabled person is to have a substitute decisionmaker appointed for the alleged incapacitated person so that the incapacitated person can live a life with dignity, comfort, and as much self-sufficiency as possible. The applicable statute may require that the court determine whether there are any less restrictive alternatives to guardianships and that a guardianship be used only when there are no lesser restrictive alternatives to meet the needs of the person alleged to be incapacitated. One positive aspect of a guardianship versus a durable power of attorney is that the guardian is accountable to the court.
In Florida, there are several types of guardianships. There are guardian advocates, plenary guardianships, guardians of the person, guardians of the property, temporary or emergency guardianships and limited guardianships. Once an individual has been determined to be incapacitated, they are referred to as the ward. The courts can also find that the individual has maintained some capacity. In order for a guardian to be appointed in any capacity, he or she must complete a guardianship application. This application states the guardian’s qualifications regarding serving as a guardian. It also is an indication to let the court know if the guardian has any special qualifications to serve as a guardian. Who may be appointed to serve as a guardian? If the guardian is a Florida resident they must be sui juris and be 18 years of age or older. If the guardian is a nonresident they must be related by lineal consanguinity to the ward; a legally adopted child or adoptive parent of the ward; a spouse, brother, sister, uncle, aunt, niece or nephew of the ward, or someone related by lineal consanguinity to any such person; or the spouse of such person otherwise qualified. A convicted felon or an individual judicially determined to have committed abuse, abandonment or neglect against a child may not be appointed as a guardian.
Guardian advocate is where a guardian is nominated and appointed for a developmentally disabled adult. The individual does not have to be declared incapacitated for this type of guardianship. The individual must lack the capacity to do some, but not all, of the tasks necessary to care for his or her person, property or estate. The guardian will have to petition the court for certain rights to take care of the developmentally disabled adult. An alternative to the guardian advocate is a plenary guardianship.
A plenary guardianship is a full guardianship granting the guardian powers over both the ward’s person and property. A person will need to be deemed incapacitated by an examining committee for this type of guardianship to be formed. The examining committee consist of three individuals. The first member must be a psychiatrist or other physician. The remaining members must be either a psychologist, gerontologist, another psychiatrist or another physician, a registered nurse, a nurse practitioner, licensed social worker, a person with an advanced degree in gerontology or by the court’s discretion an individual that can form an expert opinion. Just because a guardian is appointed over the rights of the ward, the guardian must have court approval before taking certain steps over the ward’s property. For example, if a guardian is trying to accomplish Medicaid planning for the ward, the guardian will have to petition the court for its approval of the Medicaid plan. If the Medicaid plan proposed gifts, in order to obtain the court’s approval of the Medicaid plan, the guardian must show, among other things, that the proposed gifts will not adversely affect the living conditions of the ward and would be consistent with past preferences of the ward. If there is no evidence of past preferences, then the guardian must show that a competent reasonable individual in the position of the ward would be likely to perform similar acts under the circumstances. While a plenary guardian would have authority over the powers of the ward, the guardian is still at the mercy of the court when it comes to making decisions.
A guardianship of the person grants the guardian powers over the ward’s personal care, but not over his property. The guardian of a person is generally responsible for the ward’s care and protection which means that the guardian must make decisions regarding the living arrangements, health care, personal care, meals, housekeeping, transportation, recreation, and all other aspects of the daily living needs of the ward. The initial and annual plan must be filed in this type of guardianship. A judge can determine if an individual possesses enough capacity for an individual to maintain control over some parts of their person. Some of the rights an individual can maintain the capacity to do are to marry, vote, apply for government benefits, have a driver license, travel, seek or retain employment, contract, sue and defend lawsuits, manage property or to make gifts of property and to determine his or her residence.
A guardianship of the property grants the guardian powers over the ward’s property. The guardian is responsible for the financial management of the ward’s assets. The assets must be managed consistent with the needs of the ward. The verified inventory and the annual accountings must be filed in this type of guardianship.
A temporary or an emergency guardianship gives the court the authority to appoint a guardian when a protective arrangement is immediately necessary. A court, prior to appointment of a guardian but after a petition for determination of incapacity has been filed, may appoint an emergency temporary guardian for the person or property, or both, of an alleged incapacitated person. The court must specifically find that there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken. The temporary guardianship or emergency guardianship is set to expire ninety (90) days after appointment. At that time the incapacity hearing should have already taken place and a guardianship established if necessary.
The limited guardianship is just that. It limits the powers and duties of the guardian to only those that meet the needs of the incapacitated person. Therefore, it is still possible for a ward to have a guardian yet retain decision making authority in certain areas. In Florida, the statute requires that the court order indicate the rights that the incapacitated person retains, the rights that are removed, and the rights that can be delegated to the guardian. Depending if the limited guardianship is for the person or the property would depend on which initial and annual plans must be filed.
Pursuant to Florida Statute 744.3145 each ward is entitled to a guardian competent to perform the duties of a guardian necessary to protect the interests of the ward. Each person appointed by the court to be a guardian, must receive a minimum of eight (8) hours of instruction and training. In addition to the training, the guardian must file annual reports and initial reports. One annual report is an annual accounting. The annual accounting is where the guardian must account for all expenses paid on behalf of the ward and all income received on behalf of the ward. It must include a full and correct account of the receipts and disbursements of all of the ward’s property over which the guardian has control and a statement of the ward’s property on hand at the end of the accounting period. A copy of the annual or year-end statement of all of the ward’s cash accounts from each of the institutions where the cash is deposited must accompany the accounting. Depending on the transactions made by the guardian, the guardian may need to seek court approval of some of the expenses. The second annual report is the annual plan. The annual plan updates the court with information about the condition of the ward. The annual plan must specify the current needs of the ward and how those needs are proposed to be met in the coming year. The plan includes where the ward will reside, what doctors the ward will see and what social activities the ward will be involved in. Attached to the annual plan must be a physician’s statement who examined the ward no more than ninety (90) days before the beginning of the application reporting period. The report must contain an evaluation of the ward’s condition and a statement of the current level of capacity of the ward. The guardian must file a verified inventory of all of the assets of the ward once appointed. The verified inventory must include all property of the ward, real and personal that has come into the guardian’s possession or knowledge, the location of the real and personal property, a description of all sources of income and all cash assets. The guardian must also file an initial plan which shall include the provision of medical, mental or personal care services for the welfare of the ward; the provision of social and personal services for the welfare of the ward; the place and kind of residential setting best suited for the needs of the ward; the application of health and accident insurance; and any physical and mental examinations necessary to determine the ward’s medical and mental health treatment needs.
A person also has the right when doing estate planning documents to execute a Last Will and Testament and this document must be signed while the principal has the capacity. It is the vehicle that is used to give or devise the assets of the principal, referred to as the testator or testatrix, in the event of death. This document is only effective at the death of the principal and becomes enforceable at that time. Also, it signifies who is entitled to inherit the assets and who is entitled to act as the personal representative for the deceased estate. The process to appoint a personal representative is called probate.
Last Will and Testament
A last will and testament is a document wherein an individual expresses how they want their assets given or devised at the time of their death. It also allows a person, called the testatrix or testator to appoint a personal representative or sometimes referred to as an executor to serve as the person who would handle the affairs of the decedent. A last will and testament is an important document. Without a last will and testament, the statutes determine who would receive such assets, under the laws of intestacy. To execute a will, an individual must be 18 years of age and must be of sound mind. Sound mind or capacity is further defined by the individual knowing who her family members are and the extent of his or her assets and knowing what they want to do with the assets. It is a good practice to make sure the individual understands what would happen to their assets without a will and how the will can make a difference.
A will is particularly important in blended families which can take several forms: Married couples in which one or both spouses have children from a previous marriage; families with children who are in second or subsequent marriages and who have children from previous marriages; and families with children whose spouses have children from previous marriages. Therefore, it is especially imperative for blended family to execute a last will and testament in order to avoid inheritance not being delegated as desired by the principal party.
A person’s desires can be easily accomplished with a will. A will can give the assets outright to the beneficiaries. A testator or testatrix can create a testamentary trust. A testamentary trust is a trust within a will. It will allow for the payout of the decedent’s assets over a certain period. If the testator or testatrix has an adult disabled child or a spouse that is disabled, they can create a special needs trust within the will. The special needs trust will supplement any government benefits that the individual is entitled to receive and will not render the individual disqualified from such benefits.
The validity of a will in the State of Florida is the way it is executed. The will does not have to have specific words; however, it is important that it directly reflects the intent of the testator or testatrix. Florida requires two witnesses and a notary. The notary may not serve as one of the witnesses. The testator or testatrix must sign the will at the end, or their name must be subscribed at the end of the will by some other person in his or her direction. The witnesses must sign in the presence of the testator or testatrix and in the presence of each other. Often attorneys have formalities with the execution of the wills wherein prior to signing the testator or testatrix is asked if the document is their last will and testament, do they understand it and is it how they want their assets given or devised at the time of their death and do they want the witnesses to witness their signature in their presence and in the presence of each other. Safekeeping the original last will and testament if very important. If the will needs to be admitted to probate, which will be discussed later, only the original is admitted without jumping through legal hoops and hurdles. Talking about probate many individuals think that a will is what keeps their assets out of probate. The will is the vehicle that drives probate, it does not eliminate probate. A will can be amended anytime as long as the testator or testatrix has the capacity, an amendment is called a codicil. While dementia in and of itself will not cause death, death and end of life is a certainty for everyone.
End of Life
Prior to becoming diagnosed with dementia, or shortly thereafter, while a person still has capacity, with proper planning probate can potentially be avoided. However, if probate is necessary it can be expensive, it can be costly for creditors and the assets are not readily available to the beneficiaries. The estate administration process typically takes a minimum of six (6) to nine (9) months. Most state statutes create statutory fees for probate. In Florida, the attorney can receive 3% of the value of the estate for the first million and the personal representative can receive 3% of the value of the estate for fees. With the probate administration, notice must be published so creditors have a right to file a claim against the assets of the decedent.
Ways to avoid probate are by putting assets into a living trust or making sure each asset has a beneficiary named or a joint account holder. A living trust is a revocable trust into which the individual places his or her assets, retaining income and the use of the principal for life. The living trust provides for property management in the case the individual becomes incapacitated and it avoids the delay and publicity of probate. This document takes capacity in order to put into place. If an individual names a beneficiary or a payable on death on his or her financial accounts, this will also avoid probate. In Florida, one can avoid probate of real property by creating a life estate in the property with a lady bird deed. This deed derived its name from Lady Bird Johnson, the former first lady and wife of President Lyndon Bain Johnson, as this was how he left his enormous real estate portfolio to his wife. A Lady Bird deed (also known as enhanced life estate deed) allows the property owner to retain all rights toward the real property during his or her lifetime, including the right to sell or mortgage the property or even change the person who will receive the property after he or she passes. The remaindermen’s consent will not be necessary to make these changes of ownership in the property. When the owner passes, the remainder beneficiaries will simply file the death certificate in the public records, giving proof that the property has officially been transferred to the remaindermen, all without the need for probate. The deed also requires capacity in order to effectuate the transfer.
Probate has many different forms in Florida. There is a disposition without administration, a summary administration and a formal administration. The disposition without administration is found in Florida Statute 735.301. No administration shall be required or formal proceedings instituted upon the estate of a decedent leaving only personal property exempt under the provision of section 732.402, personal property exempt from the claims of creditors under the Constitution of Florida, and nonexempt personal property the value which does not exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of illness.
A summary administration is a shortened administration. Summary administration may be held in the administration of either a resident or nonresident decedent’s estate, when it appears: (1) in a testate estate, that the decedent’s will does not direct administration as required by chapter 733; (2) that the value of the entire estate subject to administration in this state, less the value of property exempt from the claims of creditors, does not exceed $75,000 or that the decedent has been dead for more than 2 years. Exempt property consists of household furniture, furnishings, and appliances in the decedent’s usual place of abode up to a net value of $20,000 as of the date of death; two motor vehicles with a gross vehicle weight not to exceed 15,000 pounds, and qualified tuition programs. Also exempt under Article X Section IV of the Florida Constitution is the decedent’s homestead. A homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family. If the estate is indebted, a notice of creditors must be filed and it shall state the total value of the estate and the names and addresses of those to whom the assets have been assigned by the order.
The last type of administration is a formal administration. A formal administration is a full administration. First a personal representative must be appointed. A personal representative can be any person who is sui juris and is a resident of Florida at the time of the death of the person whose estate is to be administered. The personal representative is either the individual named in the decedent’s will or the individual with preference in appointment as per statue 733.301. Preference in appointment is a person selected by a majority in interest of the persons entitled to the estate or a devisee under the will. If an individual does not have a will then the preference in appointment is the surviving spouse, the person selected by a majority of interest of the heirs or the heir nearest in degree. Once a personal representative is appointed, it is his or her duty to secure the assets of the decedent. The personal representative must also publish a notice to creditors. The notice to creditors gives the creditors three months after the time of the first publication of the notice to creditors or, thirty (30) days after the service of the notice to creditor to file a claim against the estate.
The personal representative must file an inventory of all the assets of the decedent. Once the creditor claim period expires and the claims have been settled or otherwise disposed of, the personal representative can settle and close the estate. This process takes a minimum of four months. If the personal representative must liquidate assets, the process could take longer to complete. As previously stated, the will would dictate who would receive the assets of the decedent. Absent a will, the laws of intestacy provide the assets of the decedent would be given as follows: if there is no surviving descendant of the decedent, the entire intestate estate goes to the surviving spouse. If the decedent is survived by one or more descendants, all of who are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the entire intestate estate goes to the surviving spouse. If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, the surviving spouse gets one-half of the estate and the lineal descendants share the other half of the estate. If there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, the surviving spouse gets one-half of the estate and the lineal descendants share the other half of the estate. If the decedent is not survived by a spouse or a lineal descendant the estate will go to the decedent’s father and mother equally. If they do not survive the decedent, it would go to the decedent’s brother and sisters and the descendants of deceased brothers and sisters. As one can see, it is important to have a will in place so that your assets are distributed according to the individual’s wishes. Many individuals think just because they are married, the spouse is entitled to receive all the assets, as one can see, that may not be the case.
Recommendations
Prior to the onset of dementia or while a person has the capacity to execute estate planning documents and documents to avoid probate those documents shall be put in place. An individual should have a durable power of attorney, a designation of health care surrogate, a living will declaration and a last will and testament. An individual should also consider what can be put in place to avoid probate at his or her death.
Conclusion
Planning ahead and being prepared is imperative to everyone but it’s especially important with the rise of dementia infiltrating our society that we start planning earlier than later. There is no cure for dementia so one must face the fact that if diagnosed with dementia, they will need assistance with making decisions in the future. Legal representation begins with gathering the facts. One of the principle causes of malpractice claims is the lawyer’s failure to do a proper factual investigation. Therefore, it is important to know and understand the needs of each individual before drafting or executing any documents. It is important to understand the nature of the individual’s assets and the extent of the protection that is needed. It is important to have proper estate planning completed so that an individual can indicate who will control their assets in the event of an emergency or an incapacity. Doing the proper planning can save time and money in the future. At the very least in Florida, one has the right to execute a durable power of attorney, a designation of health care surrogate, a declaration naming preneed guardian and a living will declaration, these documents may eliminate the need for a costly guardianship in the event of incapacity. One also has the right to execute a last will and testament to indicate where they want their assets to go in the event of their death. An individual also has the right to do death planning and create documents that would potentially avoid probate. As Alan Lakein said, “planning is bringing the future into the present so you can do something about it now.” It is never too early to start planning for the future.