Essential Estate Planning and Advance Directives Guidance
Advance Directives
&
Estate Planning
Law Office of Pamela G. Martini, PLLC
(407) 955-4955
pam@pamelamartinilaw.com
Takeaways /
Action Items
•
Who are my Health Care
Decision Makers?
•
Who are my Financial
Decision Makers?
•
Are my documents readily
accessible?
•
What STEPS do I need to
take NOW to assist my
family in the event of my
hospitalization or incapacity?
Health
Care
Decisions
•
Florida Health Care
Proxy
•
Designation of Health
Care Surrogate
•
Living Will
•
Five Wishes
The biggest
question/concern in
estate planning is
always
WHO?
If you don’t make the
choice, Florida law will
make it for you
Health Care Proxy
Section 765.401, Fla. Statutes
If an incapacitated patient has not executed an
advance directive, or the designated surrogate is no
longer available, health care decisions may be made
by (in order of priority):
1.
A court appointed Guardian
2.
Spouse of patient
3.
Adult child of patient, or if more than one, by a
majority of adult children who are reasonably
available for consultation
4.
Parent of patient
5.
Adult Sibling of patient
6.
Adult Relative of patient
7.
Close Friend of patient
8.
Clinical Social Worker
A “Surrogate”
can make
decisions when
you can no
longer make
them yourself
D
e
s
i
g
n
a
t
i
o
n
o
f
H
e
a
l
t
h
C
a
r
e
S
u
r
r
o
g
a
t
e
S
e
c
t
i
o
n
7
6
5
.
2
0
2
,
F
l
a
.
S
t
a
t
u
t
e
s
•
Form that must be signed with two
witnesses, who are not named in
document
•
One witness cannot be spouse or
blood relative
•
Make sure to name backups
•
Should contain HIPAA Release to
allow surrogate(s) to get your
medical records
•
Notarization NOT necessary
•
Can be revoked orally
Y
o
u
r
S
u
r
r
o
g
a
t
e
h
a
s
N
O
a
u
t
h
o
r
i
t
y
a
s
l
o
n
g
a
s
y
o
u
c
a
n
m
a
k
e
y
o
u
r
o
w
n
d
e
c
i
s
i
o
n
s
Gives your
Surrogate
directions on
removing life-
prolonging
procedures
L
i
v
i
n
g
W
i
l
l
S
e
c
t
i
o
n
7
6
5
.
3
0
2
,
F
l
a
.
S
t
a
t
u
t
e
s
•
Form that must be signed
with two witnesses
•
One witness cannot be
spouse or blood relative
•
Notarization NOT
necessary
•
Nutrition/hydration are
life-prolonging procedures
A Living Will is NOT a DNR
and will not prevent you
receiving ventilator
support
Wish 1:
The
Person(s)
to make decisions
for me
Wish 2:
The kind of
medical treatment
I
want/don’t want
Wish 3:
How
comfortable
I want to be
Wish 4:
How I want people to
treat
me
Wish 5:
What I
want my loved ones to
know
www.fivewishes.org
Financial
Decisions
•
Durable Power of
Attorney
•
Living Trust
•
Joint ownership
•
Convenience accounts
•
Guardianship
Appoints an
“Agent” who
can act on your
behalf
Durable Power of
Attorney
Section 709.2105, Fla. Statutes
•
Form that must be signed with two
disinterested witnesses and notarized
•
Make sure to name alternate agents
•
Allows agent to sign any document on
principal’s behalf
•
Allows agent to access bank accounts
and manage assets
•
No Proxy or Default under Florida law
•
Can only be revoked in writing
Your Agent’s authority is
EFFECTIVE
IMMEDIATELY
“Super”
powers must
be specifically
initialed
Durable
Power of Attorney
Section 709.2202, Fla. Statutes
•
Power to make gifts of principal’s property
(even to agent)
•
Power to make gifts for public benefits
(important if principal should ever need
Medicaid)
•
Power to create/amend/revoke trust
•
Power to create/change right of
survivorship or beneficiary designations
•
Power to access safe deposit box
•
Power to manage digital assets
•
Power to disclaim property
Remember:
These documents are
REVOCABLE as long
as you have capacity
Living
Trust
•
Entity that can hold
assets during your life
and receive assets at
your death
•
You are initial trustee
•
Successor trustee is
appointed that can
manage assets if you
become incapacitated (or
when you die)
Less
desirable
options
•
Joint ownership = can
manage/control but
cannot sell or transfer
alone
•
Convenience accounts
= liability issues
•
Guardianship = last
resort
Remote Online
Notarization
•
Effective January 1, 2020 for transactional
documents, such real estate closings
•
Effective
July 1, 2020
for Wills and Advance
Directives
•
Documents can be notarized using real time
audio/video conferencing technology
•
Witnesses can also be remote, UNLESS
•
Person executing document meets definition
of Vulnerable Adult (assisted living or nursing
home residents)
•
Super powers on Durable Power of Attorney
must be witnessed in person
Other Documents to
Consider:
•
Designation of Pre-Need Guardian (for
Yourself or Minor Child)
•
Designation of Health Care Surrogate for
Minor Child
•
HIPAA Release
•
Appointment of Agent for Disposal of
Remains
•
Uniform Donor Card
•
Form to Donate Body for Medical Study
•
Pre-paid cremation or burial plan
Where should I keep my
documents?
•
Be sure your original documents are in a
secure location, but not so secure that no one
can find them
•
Safe Deposit Box is not best unless your
agent/surrogate has access
•
Power of Attorney can be recorded in public
records, but not required
•
Power of Attorney can be on file at bank and
should be shared with discretion
•
Health Care Surrogate should be on file with
primary care physician and taken to hospital
•
Surrogate and backup surrogates should have
copies
Wait!
Don’t I Need a Will?
Yes, everyone should have a Last Will and
Testament which will:
•
Name a Personal Representative (person in
charge of administering estate)
•
Name a Guardian for Minor Children
•
Describe how assets are to be distributed
(what/when/to whom)
•
Create a Trust (optional)
•
ONLY effective at your death
•
All other documents discussed are ONLY
effective while you are living
•
Every document has a different job to do
When a Will is Critical
Florida law directs where your assets go if you
don’t have a Will, but this “default” may not be
what you would choose if:
•
You want a significant other or friend to inherit
your assets
•
You have a blended family
•
You want to disinherit a family member
•
You want something other than equal
distribution between children
•
You have no natural heirs
•
You want to leave assets to charity
•
You have a disabled child or parent receiving
public benefits
•
You have a spouse receiving public benefits or
who is incapacitated
NOTE:
Having a Will does
NOT mean you avoid
probate in Florida
What STEPS should I take NOW to
assist my family in the event of my
hospitalization or incapacity?
If you have an estate plan, find and review your documents to
see if you want any changes
Make sure your agent/surrogate has up to date copies of your
documents and your attorney’s contact information
If you don’t have an estate plan, IT’S TIME!
Locate insurance policies and make sure beneficiary
designations are up to date
Review bank and investment accounts to see if beneficiary
designations are up to date; add if necessary; make list of
accounts
Make a list of monthly bills with account numbers, ESPECIALLY
IF YOU PAY YOUR BILLS ONLINE
Make a list of medical providers and prescriptions for yourself
and minor children
Make a list of online passwords, use password manager app, or
put in a VERY secure location; update regularly; include phone,
computer, email
Keep emergency contact information with you at all times
Gain valuable insights into advance directives and estate planning essentials offered by the Law Office of Pamela G. Martini, PLLC. Learn about health care and financial decision makers, document accessibility, necessary steps, and key considerations. Understand Florida laws regarding health care proxies, surrogates, decision-making hierarchy, and the significance of making informed choices in advance.
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Presentation Transcript
Advance Directives & Estate Planning Law Office of Pamela G. Martini, PLLC (407) 955-4955 pam@pamelamartinilaw.com
Who are my Health Care Decision Makers? Who are my Financial Decision Makers? Are my documents readily accessible? What STEPS do I need to take NOW to assist my family in the event of my hospitalization or incapacity? Takeaways / Action Items
Florida Health Care Proxy Designation of Health Care Surrogate Living Will Five Wishes Health Care Decisions
The biggest question/concern in estate planning is always WHO?
If you dont make the choice, Florida law will make it for you
Health Care Proxy Section 765.401, Fla. Statutes If an incapacitated patient has not executed an advance directive, or the designated surrogate is no longer available, health care decisions may be made by (in order of priority): 1. A court appointed Guardian 2. Spouse of patient 3. Adult child of patient, or if more than one, by a majority of adult children who are reasonably available for consultation 4. Parent of patient 5. Adult Sibling of patient 6. Adult Relative of patient 7. Close Friend of patient 8. Clinical Social Worker
Designation of Designation of Health Care Surrogate Health Care Surrogate Section 765.202, Fla. Statutes Form that must be signed with two witnesses, who are not named in document One witness cannot be spouse or blood relative Make sure to name backups Should contain HIPAA Release to allow surrogate(s) to get your medical records Notarization NOT necessary Can be revoked orally A Surrogate can make decisions when you can no longer make them yourself
Your Surrogate has NO authority as long as you can make your own decisions NO
Living Will Living Will Section 765.302, Fla. Statutes Form that must be signed with two witnesses One witness cannot be spouse or blood relative Notarization NOT necessary Nutrition/hydration are life-prolonging procedures Gives your Surrogate directions on removing life- prolonging procedures
A Living Will is NOT a DNR and will not prevent you receiving ventilator support
Wish 1: The Person(s) to make decisions for me Wish 2: The kind of medical treatment I want/don t want Wish 3: How comfortable I want to be Wish 4: How I want people to treat me Wish 5: What I want my loved ones to know www.fivewishes.org
Durable Power of Attorney Living Trust Joint ownership Convenience accounts Guardianship Financial Decisions
Durable Power of Attorney Section 709.2105, Fla. Statutes Form that must be signed with two disinterested witnesses and notarized Make sure to name alternate agents Allows agent to sign any document on principal s behalf Allows agent to access bank accounts and manage assets No Proxy or Default under Florida law Can only be revoked in writing Appoints an Agent who can act on your behalf
Your Agents authority is EFFECTIVE IMMEDIATELY
Durable Power of Attorney Section 709.2202, Fla. Statutes Power to make gifts of principal s property (even to agent) Power to make gifts for public benefits (important if principal should ever need Medicaid) Power to create/amend/revoke trust Power to create/change right of survivorship or beneficiary designations Power to access safe deposit box Power to manage digital assets Power to disclaim property Super powers must be specifically initialed
Remember: These documents are REVOCABLE as long as you have capacity
Entity that can hold assets during your life and receive assets at your death You are initial trustee Successor trustee is appointed that can manage assets if you become incapacitated (or when you die) Living Trust
Joint ownership = can manage/control but cannot sell or transfer alone Convenience accounts = liability issues Guardianship = last resort Less desirable options
Remote Online Notarization Effective January 1, 2020 for transactional documents, such real estate closings Effective July 1, 2020 for Wills and Advance Directives Documents can be notarized using real time audio/video conferencing technology Witnesses can also be remote, UNLESS Person executing document meets definition of Vulnerable Adult (assisted living or nursing home residents) Super powers on Durable Power of Attorney must be witnessed in person
Other Documents to Consider: Designation of Pre-Need Guardian (for Yourself or Minor Child) Designation of Health Care Surrogate for Minor Child HIPAA Release Appointment of Agent for Disposal of Remains Uniform Donor Card Form to Donate Body for Medical Study Pre-paid cremation or burial plan
Where should I keep my documents? Be sure your original documents are in a secure location, but not so secure that no one can find them Safe Deposit Box is not best unless your agent/surrogate has access Power of Attorney can be recorded in public records, but not required Power of Attorney can be on file at bank and should be shared with discretion Health Care Surrogate should be on file with primary care physician and taken to hospital Surrogate and backup surrogates should have copies
Wait! Don t I Need a Will? Yes, everyone should have a Last Will and Testament which will: Name a Personal Representative (person in charge of administering estate) Name a Guardian for Minor Children Describe how assets are to be distributed (what/when/to whom) Create a Trust (optional) ONLY effective at your death All other documents discussed are ONLY effective while you are living Every document has a different job to do
When a Will is Critical Florida law directs where your assets go if you don t have a Will, but this default may not be what you would choose if: You want a significant other or friend to inherit your assets You have a blended family You want to disinherit a family member You want something other than equal distribution between children You have no natural heirs You want to leave assets to charity You have a disabled child or parent receiving public benefits You have a spouse receiving public benefits or who is incapacitated
NOTE: Having a Will does NOT mean you avoid probate in Florida
What STEPS should I take NOW to assist my family in the event of my hospitalization or incapacity? If you have an estate plan, find and review your documents to see if you want any changes Make sure your agent/surrogate has up to date copies of your documents and your attorney s contact information If you don t have an estate plan, IT S TIME! Locate insurance policies and make sure beneficiary designations are up to date Review bank and investment accounts to see if beneficiary designations are up to date; add if necessary; make list of accounts Make a list of monthly bills with account numbers, ESPECIALLY IF YOU PAY YOUR BILLS ONLINE Make a list of medical providers and prescriptions for yourself and minor children Make a list of online passwords, use password manager app, or put in a VERY secure location; update regularly; include phone, computer, email Keep emergency contact information with you at all times
