Articles Posted in Durable Power of Attorney

Florida Guardianship Abuse: Palm Beach Guardian under Fire

Florida Guardianship Abuse is unfortunately far too common as many retirees flock to Florida for retirement. Retirees move to Florida to enjoy the beaches, sunshine and tax advantages. At any given time, there are 30,000 to 40,000 open guardianships cases being overseen by the Florida Court System. Regrettably, many of these retirees are not legally prepared for when they can no longer care for themselves. Being legally prepared for not being able to care for oneself means having advanced directives in place; a Durable Power of Attorney and Designation of Healthcare Surrogate. Not having these documents results in a guardianship being necessary.

A Florida Durable Power of Attorney allows an individual when they can still care for themselves, to choose who will oversee their financial assets when they cannot.

Can a Durable Power of Attorney be signed if a Guardianship is needed in Florida? A Durable Power of Attorney is a legal document that allows a competent adult to decide whom can make financial and healthcare decisions for them when they cannot. A competent adult can make his or her own financial and healthcare decisions, also referred to as having capacity. A Guardianship is established when an adult no longer has capacity and is set up through the Florida Court System. Through the Florida Court System, a Court decides who will make financial and healthcare decisions for an individual who no longer has capacity. The person appointed to make financial and healthcare decisions for the individual is a guardian.

Let’s take the following for example: Your mother’s doctor just informed you she is no longer has capacity. You need to become your mother’s guardian because she does not have a Durable Power of Attorney. However, can a Durable Power of Attorney be signed if a Guardianship is needed?

In Florida, the Guardianship Process begins when a Petition for Appointment of Guardianship and a Petition to Determine Incapacity are filed with a court. At the time the petitions are filed, an allegation is made that an individual no longer has capacity. Whether or not someone has capacity remains an allegation until after a court rules on the Petition to Determine Incapacity. A Judge is the only person who can determine if someone has the capacity to make their own financial and healthcare decisions. Additionally, a guardianship cannot be established until after a court makes a ruling on the Petition to Determine Incapacity.

What is a Florida power of attorney?

A Florida power of attorney is a legal document that delegates the authority for one or more persons to act on behalf of the person who creates the Florida power of attorney. The person who creates, or signs a power of attorney is the principal. The principal of a Florida Power of attorney grants one or more agents the right to act on their behalf as an agent. The document will describe the authority that the agent or agents have. A Florida Power of attorney can be for a limited purpose or grant broad powers to handle a variety of financial base transactions.

What is a Florida power of attorney be used for?

Do I need Guardianship if I have a Power of Attorney in Jacksonville, Florida? Guardianship of an Adult is a legal tool that gives one person the ability to make decisions for another person. A Power of Attorney is also a legal tool that gives one person the ability to make decisions for another person. Both a guardianship and a Power of Attorney are generally only necessary when a person becomes incapacitated. A person becomes incapacitated when they are unable to make their own financial and healthcare decisions. The difference between a guardianship and a Power of Attorney is when and how they are established.

In Florida, a Guardianship can be established when an individual is no longer able to manage their financial affairs or make their own healthcare decisions. Guardianship can only be established through the Florida Court System. A judge decides who the guardian will be. Generally, a guardianship is used when there are no less restrictive means to make decisions on behalf of an individual.

A Power of Attorney is created while an individual still has the ability to make his or her own financial and healthcare decisions. A Power of Attorney is a written document, usually prepared by a Florida Estate Planning Lawyer, that permits you to choose who will make your financial and health care decisions when you cannot.

A Durable Power of Attorney is an important document, but sometimes having one can cause problems.

A recent Florida court ruling scored a major win in the fight against elder abuse. The case established that a health care proxy does not have the authority to waive the right to jury trial and bind a person to a contract.

The case is Hugh Moen v. Bradenton Council on Aging LLC, where the defendants, the nursing home, filed motions to dismiss and to compel binding arbitration.  The plaintiff, Moen, was the personal representative of the estate of Norma Silverthrone, appealed the order granting the motions to dismiss.  The appeals court sided with the personal representative.

Background on The Case

Norma Silverthorne was admitted to a nursing home in 2013.  Her daughter, Susan Moen, accepted a health care proxy designation on her mother’s behalf. Norma never executed a durable power of attorney in her daughter’s favor.  Susan signed the nursing home’s admission agreement, which contained a “Voluntary Arbitration Agreement.”
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A Florida DNR is a document you will not complete with your Jacksonville Estate Planning Lawyer. Many feel that estate planning is a great area of law because it allows people to plan ahead for how they wish to be treated medically in a scenario when someone is not able to decide on their own.  This is why we recommend that every person plan for their future through estate planning documents such as a will, trust, living will, medical and financial powers of attorney and even simple documents such as a Florida “Do Not Resuscitate Order.”

A Florida DNR, Do Not Resuscitate Order, is a form developed by the Florida Department of Health, known formally as Form 1896, that identifies a person that does not wish to be resuscitated in the event of respiratory or cardiac arrest.  This form, tells hospitals, doctors, and other health providers to not resuscitate you when certain conditions occur because you do not feel your quality of life will be sufficient after resuscitation. We recommend that everyone have a Florida DNR, Do Not Resuscitate Order, if they do not wish to be revived under certain conditions because most doctors and health care providers will attempt to resuscitate a person by default.

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It is a very common practice as people age for them to visit an attorney for estate planning and execution of a Power of Attorney in order for safeguards to be put in place and to select a trusted family member to manage their assets, should they ever become unable to do so themselves. Having a Power of Attorney in place should prevent the necessity of a guardianship from being needed, but unfortunately a Power of Attorney does not always prevent the need for a guardianship and this is why:

When a Power of Attorney is in place and the incapacitated person is being cooperative with the assistance he or she is receiving from their designated Power of Attorney and other family members, and as long as the designated Power of Attorney is only acting in the best interest of the incapacitated person, a guardianship should not be needed. However, if the incapacitated person is not being cooperative and is wasting his or her property by either giving it away, making bad purchase decisions or what have you, then the Power of Attorney does not give the authority necessary to limit the incapacitated person’s access to their property. Therefore, a guardianship would be needed in order to remove the incapacitated person’s right to manage their property.

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Many women in today’s world stay single by choice, and for those women who are married, we know divorce rates are very high. Studies also show that women are far more likely to survive their husbands. Therefore, we advise all women to create estate plans as if they are a single person.

The first step to making an estate plan is to identify a means to pay for future long term care. A 70 year old woman is likely to live another 15-20 years, which means that estate plans must now last longer than before. We encourage all of our clients to consider long term care policies and other hybrid policies, which have retained benefit features in case a policy is dropped.

The next step a single person should take is to select an executor of a will and a power of attorney agent. A failure to name these persons means a judge will one day be in charge of selecting who will serve these pivotal roles in managing the estate. It is best to name these people ahead of time so a person can ensure his or her health and estate are managed by competent people. These roles do not have to be filled by friend or relatives, so we recommend starting a “recruiting process” to find someone qualified to fill these roles. While more expensive, there are many professionals and or financial institutions that can handle these matters.

In 2011, Florida passed the Power of Attorney Act that has had a significant impact on the then existing law in an attempt to achieve greater consistency and uniformity throughout Florida. One big change the act brought about was the codification of laws regarding a third party’s ability to reject a durable power of attorney.

Now the law states that once a power of attorney is presented to a third party, the third party is required to accept or reject the power of attorney within four business days and to provide a written explanation for rejection unless the third person is not otherwise required to engage in a transaction with the principal.

Third parties in these cases are usually banks and other businesses. The issue arises when a third party questions the power of attorney or the authority of the agent, and then refuse to honor a power of attorney. First, it is important to note that banks are offered a number of protections that encourage a bank to accept the validity of a durable power of authority. Florida law provides that if a business accepts a power of attorney that appears to be valid on its face, the bank will not be liable for accepting the power of attorney. The bank will only be liable if it knows the power of attorney has been revoked and still accepts the power of attorney.

What documents do young adults need?

It’s hard to believe that when your child turns 18 years old, he or she is legally an adult. When a child reaches this milestone, the mother and father’s parental rights have terminated. This means that if the child experiences a medical emergency, the parent may not be able to help or even receive information on the child’s well being without the property authority.

A parent loses parental rights over their children due to a number of privacy laws. One important law is FERPA, the Family Educational Rights and Privacy Act, which restricts the information a school can release about an adult student. The other is HIPAA, the Health Insurance Portability and Accountability Act, which limit those to whom health care providers can release data.

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