Establishing a Will or setting up a Trust will assist you in managing and distributing your assets and declaring your final wishes. Both are used to state who will receive your assets. It is important to remember that Wills do not go into effect until after your passing while a Trust is effective upon funding and signing.
A Trust can be distributed during your lifetime. Guardians for children and executors for your estate can be named in your Will. A probate process may be necessary for the distribution of assets. If a Will is not established at the time of your passing, the inheritance statute will determine how your property and assets will be distributed to your heirs.
At Schwam-Wilcox & Associates, we can assist you with setting up a Simple Will, Living Will, and/or Trust (via our of counsel). We will also assist you with learning and understanding the responsibilities and capabilities of a Power of Attorneys document. If a Power of Attorney is currently in effect, we can also guide you through the process of revoking the same, if that is what you need for you and your family.
Simple Wills
The 4 types of Wills recognized in Florida are Simple Wills, Pour-over Wills, Mirror Image Wills, and Out-of-State Wills. A Simple Will is appropriate when you are under the age of 50 and have a relatively modest estate. This generally means that there are no businesses or complicated asset distributions.
While probate proceedings are still required with a smaller estate, it is advised to have a designated executor to guide the distribution of your assets. At a minimum, a Simple Will should include a list of your assets, identification of your beneficiaries, guardian(s) for your dependents, and the executor of your Simple Will. When you want to do more complicated distributions of your assets or have a larger amount of assets, a Simple Will is usually not the right choice.
Living Wills
While not considered a Will, a Living Will acts as a legally binding document to express your end-of-life preferences. These preferences can include whether you would like to be kept alive with artificial life support or not, decline or accept restoration, and refuse or replace vital functions. In Florida, Living Wills are only legally binding with signatures by the adult individual for whom the Living Will is for and two witnesses. At least one of these witnesses needs to be unrelated by blood or marriage. Documents included in a Living Will that relate to medical decisions are the Medical Power of Attorney, Advanced Health Care Directive, and HIPAA Authorization Form.
Schwam-Wilcox & Associates can help you set up Wills and/or Trust
Durable Power of Attorneys
A Power of Attorney (PoA) is a legal document authorizing a competent person (the agent), at least 18 years old, or a financial institution with Trust powers, to act in someone else’s (the principal) legal capacity. If the primary becomes incapacitated, a standard PoA is terminated unless a Durable Power of Attorney (DPOA) is established. The legal actions of a PoA or DPOA can be broad or limited to certain authorities. Generally, a DPOA agent can handle financial decisions and authorize or terminate medical care and procedures.
For a PoA or DPOA to be valid in Florida, the principal, two witnesses, and a notary must sign and acknowledge the document. As of 2011, PoA and DPOA documents go into effect immediately after signing and the agent can use the powers designated within these documents. Out of state PoAs and DPOAs are considered valid but are subject to Florida’s Power of Attorney Act and other state laws. Additionally, the agent may only act as stated in the terms and powers of the PoA or DPOA.
Revocation of Power of Attorneys
If the principal would like to change or revoke their PoA or DPOA agent, a written statement needs to be submitted with their signature and the signature of two witnesses. This document should identify the principal by name, the date of the original PoA/DPOA document, and state the principal’s intent to revoke the current agent’s PoA/DPOA authority. If the principal wants to replace the current agent, the new agent will need to be identified in this document.
Revocation of a Power of Attorney can cover all authorities of the agent or specified acts. When a revocation or replacement happens, a written notice of these needs to be hand-delivered to the agent via courier or certified mail. Additional notices should be sent to the agencies that the agent is no longer authorized to make decisions on behalf of the principal.
The actions of a PoA can be broad or limited to certain authorities.
Health Care Surrogates
Responsibilities
Health Care Surrogates are individuals who have been given written, signed, and witnessed approval by the principal to make all health care decisions in their stead should the principal become incapacitated. Whether physically or mentally incapable of these decisions, the surrogate acts in the way described or desired by the principal, or in their best interests. This can include receiving, continuing, or refusing:
- Admissions
- Discharges
- Orders to resuscitate
- Surgeries
- Treatments
- Transfer to or from another facility
With access to the appropriate health information of the principal, the surrogate may authorize the release of this information to appropriate persons for the continuity of the principal’s health care. Financial information may also be provided for the surrogate to apply for public benefits like Medicare or Medicaid on behalf of the principal.
Appointment
The appointment of a Health Care Surrogate is made legal through a written document that has been signed by the principal and two adult witnesses. The intended surrogate cannot act as a witness and at least one of these witnesses must not be related by blood or marriage. If the principal is physically incapable of signing, they may direct another person to sign the document in their name in the presence of witnesses. An exact copy of the document must be provided to the surrogate.
The responsibilities of the surrogate can be enacted immediately upon signing or delayed until certain circumstances. These circumstances need to be included in the document. A principal may stipulate in the document that the authority of the surrogate to receive health information or make health care decisions, or both, is exercisable immediately without the necessity for a determination of incapacity as provided in s. 765.204.
Guardianships for adults, with mental or physical disabilities, act as a court-appointed decision-maker to make either personal and/or financial decisions. These individuals are referred to as wards. Any adult resident of Florida can serve as a guardian, related or unrelated to the ward. The court goes through a determination process before granting guardianship, given that less restrictive alternatives – such as DPOA, Health Care Surrogate, or Trust – are found inappropriate or unavailable.
Guardianships (this is for information not an area the firm practices)
Guardianships for adults, with mental or physical disabilities, act as a court-appointed decision-maker to make either personal and/or financial decisions. These individuals are referred to as wards. Any adult resident of Florida can serve as a guardian, related or unrelated to the ward. The court goes through a determination process before granting guardianship, given that less restrictive alternatives – such as DPOA, Health Care Surrogate, or Trust – are found inappropriate or unavailable.
Determination of incapacity
The court must determine that the ward’s ability to make decisions is so impaired that they lack the capacity to manage at least some of their property or are unable to meet at least some essential health and safety requirements. Examination of these capabilities typically include:
- A physical examination
- A mental health examination
- A functional assessment
Within 5 days after a petition is filed with the court to determine incapacity an examing committee of three members will be appointed. Reports of findings are submitted to the court by each member. One of these committee members must be a psychiatrist or other physician and at least one of the members must have knowledge of the type of incapacity that is alleged in the petition. Members must be either a:
- Psychologist
- Gerontologist
- Psychiatrist
- Physician
- Advanced Practice Registered Nurse
- Registered Nurse
- Licensed Social Worker
Individuals with related advanced degrees or who by knowledge, skill, experience, training, or education may advise the court in the form of an expert opinion.
Appointment
An individual, related or unrelated and residing in Florida, or an institution (such as a nonprofit corporation or bank trust department) can be appointed by the court as a guardian. Public guardians can also assume the responsibility of handling the ward’s assets and property.
There are limitations to guardianship appointments. Individuals convicted of a felony or who are not capable of fulfilling the responsibilities of a guardian will not be considered by the court as a guardian.
Responsibilities
A guardian acts on behalf of the ward for the ward’s assets and well-being. In general, a guardian is authorized to manage the property of the ward. This includes:
- Investing on behalf of the ward
- Locate and providing medical services
- Locate and providing mental health services
- Locate housing accommodations
- Making financial transactions
- Performing inventory
- Providing personal care
Once assigned as a guardian, they are required to inventory the property, invest it prudently, use it for the ward’s support. Annual reports must be filed with the court for these accounts. The guardian must receive court approval for certain financial transactions.
Limited and Plenary Guardianships
When a ward is able to maintain responsibilities for some of their health, daily care, assets, or household responsibilities, but not all, a limited or plenary guardianship may be assigned by the court. Wards who have been appointed with limited or plenary guardians maintain all of their legal rights except those specifically granted to the guardian by the court’s written order. These guardians may be appointed voluntarily by the ward or involuntarily.
Limited guardianships are primarily designated by the court to care for a ward’s estate and personal care. Wards must be found fully or partially incapable of decision-making regarding these areas prior to guardianship. The court will decide which actions can specifically be taken by the guardian. The ward will keep all of the rights not specifically taken away by the court’s written document.
A plenary guardian appointed by the court is designated to care for the legal rights and powers of the ward as outlined in the written order. This is one of the most restrictive guardianships as it requires a judicial decision of the incapacity of the ward. The plenary guardian is able to make decisions for the ward related to:
- Entering Contracts
- Sue/Defend Lawsuits
- Applying for government benefits
- Managing property
- Living arrangements
- Medical and mental health treatment
- Social environments – including who the ward may speak to and visit
Unless specifically allowed by the court, plenary guardians are restricted from decisions relating to:
- Committing the ward to a facility, institution, or licensed service provider
- Consenting to biomedical or behavioral procedures
- Petitions to dissolve the ward’s marriage
- Termination of parental rights
- Consenting to sterilization or abortion procedures
Guardianships for disabled adults serve as court-appointed decision-makers for personal and financial matters.
Trusts (this is for information and an area where we utilize our of counsel attorney)
In lieu of a traditional will, a trust may be more appropriate. They can be set up during a person’s lifetime and guidelines can be established for their distribution. Trusts can be orally dictated, with evidence, or written. Provisions for what the owner of the trust would like to happen should they become mentally or physically incapable of making decisions can be established through a trust.
Trusts are managed by a trustee under the guidelines established by the creator of the trust. A trustee can be the creator of the trust or a trustee can be appointed to another person, bank, or trust company. Trustees determine how the assets of the trust are invested and to whom they are distributed after the trust owner’s death.
Revocable/Living Trusts vs. Irrevocable Trusts
A revocable, or “living” trust, is “revocable” as it can be modified (regarding beneficiaries or stipulations) or terminated during your lifetime unless you are incapacitated, similar to a will. An irrevocable trust cannot be amended after its creation without the consent of the beneficiaries.
Revocable trusts are able to mostly avoid probate and save taxes after death when the trust is fully funded. Fully funding a revocable trust means transferring assets such as bank accounts, real estate, and investments to the trust and formally naming the trust as the owner. Doing this before your death will offer the maximum benefit from the trust. It is important to note that not all assets transferred to the trust will avoid income tax.
Irrevocable trusts go into effect as soon as they are signed. Full consent of all beneficiaries is required for any amendments or modifications to the trust, including adding or removing beneficiaries. The trustee of an irrevocable trust cannot be the owner of the trust.
Revocable trusts can be amended while irrevocable trusts require consent from beneficiaries.
Plan for your future, your family is counting on you.
For more information on how we can assist you and your family with these important documents or your other legal issues, contact the attorneys at Schwam-Wilcox & Associates.
If you are in need of a wills and trusts attorney (lawyer) in Orange, Osceola, Seminole, Lake or other counties throughout Florida call Schwam-Wilcox & Associates at 407-245-7700 or Contact Us by completing the form below to schedule a consultation. Schwam-Wilcox & Associates is a firm you can trust, and our attorneys are ready to help you with your legal needs. The main office is conveniently located near Winter Park in Orlando, with appointments also available in The Villages.
