In Florida, the following classes of people are not qualified to serve as a personal representative of an estate:
(a) Has been convicted of a felony.
(b) Is mentally or physically unable to perform the duties.
Often Estate Planning clients struggle with their spouse or self over who to pick as an agent to represent them in a Florida Durable Powers of Attorney ( Financial decisions), Florida Living will & Designation of Health Care Surrogate ( Health care decisions) and Revocable Trusts (Financial Management).
Initially clients might thing of using a Co-Agent. This can cause many problems and unforeseen circumstances and must be done with the correct expectations and knowledge of the potential problems. Michael Keenan has an article discussing several of these issues, titled Be Careful With Co-Agents. In summary, before choosing co-agents you should consider whether they get along well with each other, and what to do if they do not in the future.
In addition, what if one lives far away or moves after the documents are created. Some hospitals or financial institutions may require that both act together unless each co-agent has “several powers” or “joint and several powers” This can be difficult and impracticable. You put your financial and health interest at risk due to delay in execution of the documents.
As a Jacksonville Florida non-compete Lawyer, I often am asked about some of the provisions that are contained in a Florida employment agreement. I found an article on the Texas Non-Compete Law Blog, entitled Texas Executive Employment Agreements: Checklist for Employees and thought that the information would be relevant to my Florida Clients. I have based this information on what was contained in that article, but modified removed some information and added some that is specific to Jacksonville and throughout Florida .
1. Term of Employment. Employment agreements are either for a fixed term or at-will. An at-will employment agreement can be terminated by either party at any time for any reason. Some employment agreements that are purportedly for a fixed term (e.g., a one-year term) also contain provisions pursuant to which the employer may terminate the employee “for any reason” on shorter notice (e.g., “thirty days’ notice”)–such an agreement is in reality a 30-day employment contract.
2. Position, job duties, location. Employment agreements routinely contain provisions outlining what the employee’s title will be, what their duties will be, who the supervisor will be, and where the work will be performed.
3. Compensation. Employment agreements often reference compensation or salary and sometimes discretionary compensation (e.g. bonuses and stock options).
4. Termination for Cause. Employment agreements often provide that an employee may be terminated for “cause,” and “cause” is defined to include various acts or omissions by the employee. Some acts–like commission of a felony and embezzlement of company funds are fairly easy to understand. However, defining “cause” to include the employee’s failure to perform his/her job duties can be difficult because this can be subjective. Employees want what a clear non subjective definition of cause.
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As a Florida medicaid Planning Lawyer, clients often ask about coverage, eligibility, and benefits in other states. I ran across an article entitled A Ranking of State Medicaid Programs on the Public Citizen website.
Here is a link to the overall ranking of states by Score Florida Ranks 26th If you would prefer this is a ranking by state name.Use this link for some details on Florida . You might be surprised to know that Florida ranks 4th on Quality of care.
Florida employment agreements and Florida non-compete agreements frequently contain non-solicitation clauses. These agreements or clauses prohibit an employee from soliciting the employer’s clients and/or employees while they are employees and for a period of time after there employment.
The Texas Non-Compete Law Blog references a Massachusetts case that illustrates the difficulty in making the determination of whether an act or communication constitutes solicitation. They have very in depth article on this case. Here is a short summary of the case they review. The following provision was at issue:
Non solicitation Covenant. For a twelve (12) year period commencing on the date hereof, Seller shall not, directly or indirectly, (a) employ or contact any person who is employed or engaged by the Company or in any manner seek to induce any such person to leave his or her employment or engagement with the Company.
The issue in the case came down to whether social interaction with potential clients was a violation of the agreement.
As an Estate Planning Lawyer in Jacksonville Florida, I am often asked about issues dealing with addresses in Florida Wills, Florida Trusts, Florida Living Wills, Florida Durable Powers of Attorney, and other documents.
Generally the address and phone number in these documents is to help locate or contract the person. In some cases they can be used to help distinguish one John Doe from the next. The Connecticut Estate Planning Blog had an example of when it might be important to update the address, but as the site states, this would only happen on a law school exam.
The only possible reason why such a move would prompt a legitimate will amendment is if the move created an identification problem. For instance, in the above example, suppose the client disinherited his other brother, also named Billy Bob (I don’t think I’ve ever seen two brothers with the same name), out of his will, but then that brother moves to Glastonbury after the other Billy Bob moved from Glastonbury to Wethersfield. Now the will seems to identify someone who the client didn’t intend to include as a beneficiary of his will.
As a Jacksonville Living Trust Lawyer, I have noticed many changes that effect the administration of Trusts, even those which were already in existence when on July 1, 2007 when the Florida’s New Trust Code became effective. If you are an estate planning attorney in another state and have clients who have trusts in Florida, it is most likely that their trusts must be managed differently than their trust document would imply.
1) A trustee has a duty to act in good faith in the interest of the beneficiaries and in accordance with the terms of the trust, imposed in part by sections 736.0801 and 736.0802.
2) There is a new 6 month statute of limitation sunder section 736.1008 with regard to any item set forth in a trust disclosure statement which contains a limitation notice containing the six-month period of time under 736.0604 within which to contest the validity of the terms of the trust.
The Princeton Business Journal had an interesting article on Common mistakes that your Estate Planning Lawyer can help you avoid
Without a will, living will, durable powers of attorney for healthcare and property or Letters of Guardianship, the state will likely decide the distribution of your assets and the caring of your loved ones. A Florida estate plan should clearly define the distribution of your assets, how and if care will be provided in the event you cannot exercise control over your medical care and who will act as the guardian for your children, dependents or for yourself.
Without a Florida estate plan you may:
• Not be providing for your family when you pass.
• Not be protecting your estate from estate taxes.
The Princeton Business Journal had an interesting article on how to choose an Estate Planning Lawyer.
Princeton suggests Due diligence. When selecting a Florida Estate Planning Lawyer, you should check to make sure they spend a significant portion of their time and resources on Estate Planning. Otherwise, the end result could be disastrous and financially devastating.
Ask pointed questions, such as: What percentage of your practice is devoted to Florida estate planning? Will you consult with my financial planner to review all aspects of my wealth? If you are not provided with clear answers move on to the next candidate.
The Princeton Business Journal had an interesting article on how to choose an Estate Planning Lawyer.
Princeton suggests Due diligence. When selecting a Florida Estate Planning Lawyer, you should check to make sure they spend a significant portion of their time and resources on Estate Planning. Otherwise, the end result could be disastrous and financially devastating.
Ask pointed questions, such as: What percentage of your practice is devoted to Florida estate planning? Will you consult with my financial planner to review all aspects of my wealth? If you are not provided with clear answers move on to the next candidate.
