According to Florida law, nursing homes, hospices, hospitals and some insurance organizations are legally required to provide consumers with a written summary of their legal rights to create advance health care directives.

A living will is an instrument you create while you are still alive and well enough to make those decisions. You may want to create one in addition to drafting a document appointing your health care surrogate.

Once you create a living will, you should give a copy of it to the person that you appoint as your health care surrogate if you appointed one. The surrogate has the legal ability to make decisions on your behalf regarding any medical treatments if you become incapable of making them. If you want to designate a health care surrogate, you should do that in writing. Like a living will, you must sign your surrogate document in front of two witnesses, one of which is not a spouse or a relative. Your surrogate is not able to serve as a witness to your document.

It is your legal responsibility to notify your physicians of your living will. Once you give your physician a copy of it, he must place it in your medical file for future reference.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

A Living Will is a written document that allows you to make advance decisions regarding life-sustaining or prolonging medical treatments. A valid living will must contain certain information as outlined in Section 765.303 of the Florida Statutes. Also known as Health Care Advance Directives, Living Wills are completely different from legal wills.

A legal will allows a person to decide who inherits his personal and real property. A living will or health care advance directive, on the other hand, is a written document that allows a person to make decisions regarding his own health upon physical or mental incapacity.

A valid living will must be in writing and signed by the person creating it in front of at least two witnesses. At least one of the witnesses must be unrelated to the person creating it and must not be a spouse. If the person creating a living will is physically unable to sign his document, he may direct another individual to sign it on his behalf. The third party signing a living will on the drafter’s behalf must sign it for the drafter in his physical presence. Finally, to create a living will, an individual must be mentally competent at the time he signs it.

Note that a living will created in another state is valid in Florida if it was valid in the other state. In other words, similar to a legal will, a living will created outside of Florida is enforceable in Florida if it complies with the other state’s laws.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

In most states, including Florida, individuals can appoint third parties to make decisions for them if they become mentally incapacitated or otherwise too ill to make decisions regarding their medical care.

In Florida, residents can use several different types of forms or documents that allow others to help them make decisions for them. Before using any of these forms, you should contact our office or another experienced estate planning attorney to help you determine whether or not they would be suitable for your individual needs.

You may use a Health Care Surrogate Designation form to appoint a mentally competent adult to make decisions on your behalf regarding medical treatments and health care decisions if you become mentally unable to make them. If you become well, your designation form is no longer valid, since you can make your own medical decisions. A Health Care Surrogate Designation document is similar to a living will but serves different purposes. In the next two blogs, we will cover the definitions of both and the differences between them.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

Both in elder law and estate planning you may see the term Guardian ad Litem used.  But do you know what that term actually means?

A probate court handles not only issues of wills, estates and trusts, it also deals with the issues of incapacitated adults and minor children. They are considered vulnerable in the eyes of the Court, and may require the help of skilled legal representatives to ensure that their interests are protected in court proceedings. One option to represent the best interests of an incapacitated adult or a minor child is by the court appointment of a Guardian ad Litem.

A judge, family members, the court, or other professionals, such as a doctor or social service case worker, can nominate a qualified attorney to act as Guardian ad Litem for an incapacitated person or minor. The appointment of a Guardian ad Litem is at the discretion of the courts within that particular jurisdiction, such as a probate court in the case of a guardianship hearing.

People who have diminished capacity do not lose their right to due process of law; however, they may not be able to advocate for themselves, understand the process or have the capacity to determine what is in their best interest. The job of the Guardian ad Litem is to advocate for the best interest of the allegedly incapacitated person. Often they will be tasked with gathering all relevant information, interviewing the parties involved and advocating for the course of action that protects and promotes the best interest of the client.

There are estate planning tools that can be used to avoid the need for a Guardian ad Litem, such as drafting a Durable Power of Attorney that allows you to appoint a person to handle your affairs in the event you can no longer handle them on your own.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

When creating a will, you will list all kinds of information including who you want to have some of your most prized personal possessions and guardianship of any minor children. However, some people believe that their last will and testament is also the place to lay out their health-care wishes in the event that they become incapacitated in some way.

A will is definitely not the place to talk about your healthcare wishes as no one will be looking at your will until you have passed away. Obviously, you want them to know your healthcare wishes before that happens! What you need is something called a healthcare directive. Some states refer to these as living wills which may have caused some of the confusion when people think that they’re supposed to put that information in their last will and testament.

In a healthcare directive, you will name someone who is going to be your durable power of attorney for health care. This person will carry out your wishes and make sure that you are cared for in your time of need. You may also need a power of attorney for financial matters if you are going to be incapacitated for a long time. Sometimes it’s fine to have the same person do both if you trust them with your healthcare and money matters.

To create a healthcare directive, it’s very important to speak with a knowledgeable estate planning attorney who can walk you through the process and make sure that things are drawn up legally. You want to make sure that your document is set in stone and able to be easily utilized by your loved ones in the event that you cannot make decisions for yourself.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

A power of attorney is an essential estate planning document. It lets you appoint an agent to make a range of decisions for you in the event you become disabled (or in case you’re otherwise not available to be there, in person, for a legal or financial transaction).This helps to keep you out of living probate if you ever suffer a disabling injury or illness – instead of needing a court-appointed guardian, your power of attorney gives your agent the ability to act on your behalf.  However, while a power of attorney can give your agent a wide range of authority when it comes to your financial affairs, there’s one thing that’s off limits to your agent: the assets in your trust.

When you establish a trust, you designate a trustee to manage all of the property you fund into the trust. Once property is transferred to your trust, it’s within the control of your trustee, and it is not governed by the terms of your power of attorney.

Does this mean that if you have a trust, you shouldn’t have a power of attorney? Not at all – a power of attorney is an essential document whether you have a will or a trust. When you have a trust, your power of attorney can act as a catch-all, making sure there’s someone in charge of bank accounts and assets that are not included in your trust.

It is, however, important that you know which of your property is controlled by your trust, and which falls under your power of attorney. This way, you can make sure you’re prepared for the possibility of disability – without any unsettling surprises for you and your loved ones.

Your estate planning attorney can help you make sure your entire estate plan is coordinated so that your goals are achieved and your family is protected, no matter what the future holds.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

Having an incapacity plan is vitally important. You never know when catastrophe may strike, and even the youngest and healthiest among us are vulnerable to illness and accidents.

Incapacity Planning is Critical

That’s why it’s critical to plan in advance. With an incapacity plan, you use a living trust and/or other legal documents, called advance directives, to help ensure your wishes are honored if you reach a point at which you can no longer care for yourself. You appoint people of your choosing to take over your financial and medical decision-making, and you let your doctors know your preferences for end-of-life care.

What About Medicaid Planning?

What would happen if you became disabled and needed nursing home care? Unless you already meet the strict financial requirements for Medicaid eligibility, the cost of your care would come out of your pocket. And nursing homes are expensive – paying for care can deplete the life savings of all but the wealthiest among us.

You Need “Medicaid Triggers”

This is why many people choose Medicaid planning to position themselves to receive benefits. But if you’re disabled, you can’t plan for yourself; and your disability plan might not permit your agent to engage in Medicaid planning on your behalf. Unless your plan has “Medicaid triggers,” language that complies with Medicaid rules and specifically permits your agent to do Medicaid planning, your disability could mean a dead end when it comes to qualifying for Medicaid.

To find out if your incapacity plan includes “Medicaid triggers” – or to put a plan in place – contact a qualified estate planning attorney.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

Estate planning involves a number of strategies for protecting yourself and your loved ones. Have you taken advantage of these asset protection opportunities?

• Medicaid Planning: America is facing an enormous demographic shift. As baby boomers continue to age, an increasing percentage of the population will need long-term care – a prohibitively expensive proposition. One strategy for dealing with this is to make sure you carry a combination of adequate health and long-term care insurance. Another strategy is to build provisions into your trust, called “Medicaid triggers”, that let your successor trustee engage in Medicaid planning on your behalf in case you become disabled.
• Special Needs Planning:  When you have a child, grandchild, or other beneficiary with special needs who depends on government benefits, a direct inheritance can deprive that beneficiary of those government benefits. A special needs trust protects your loved one’s benefits while at the same time maintaining their quality of life.
• Asset Protection for Beneficiaries: It is all too easy to fail to protect the inheritances of children and grandchildren. When an inheritance is left outright to a child or grandchild, instead of being shielded in a trust, that inheritance is vulnerable to a laundry list of threats. It is susceptible to creditors, to divorce settlements, to lawsuits, and even to simple poor decision-making on the part of the beneficiary. Leaving an inheritance in a properly established trust can keep it shielded from unwanted threats.

Asset protection is an important, but sometimes overlooked, aspect of estate planning. Your estate planning attorney can help to ensure that you and your loved ones are protected.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

Choosing someone to serve as your attorney-in-fact (also called your agent) pursuant to your Power of Attorney can be a daunting task. This is especially true if you’re a parent who has to choose between children. It may seem like the simplest solution is to name two people to serve simultaneously as attorney-in-fact. While you can do this, it’s usually not a great idea.

Although naming two agents can help to avoid putting the entire burden of managing your finances on a single person, it can also stall the management of your affairs, and land your loved ones in court.

What happens if the co-agents you’ve appointed have a disagreement they can’t resolve? Not only does such a disagreement cause stress for your co-agents, as well as a potential division in your family, it also means that their attention becomes focused on the disagreement, and it can lead to important responsibilities falling through the cracks.  Plus, the final resolution to these kinds of disagreements often happens in court, and avoiding court is one of the reasons for making a Power of Attorney in the first place.

If you are considering appointing two loved ones to serve simultaneously as your attorneys-in-fact, talk to your estate planning attorney. He or she can help you explore all of your options, and settle on the approach that’s right for you and your family.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

An estate planning attorney’s office is the last place you’ll find most college kids, but when your child turns 18, this is one meeting you need to schedule. Why? Because once your child reaches age 18, you no longer have the legal authority to make medical decisions on her behalf, nor are you automatically authorized to manage her finances.

While your child is likely grateful for this independence, what would happen if she were in a car accident and suffered a debilitating injury? Before you could communicate with her doctors, make decisions concerning medical procedures, or access her bank account to make sure that her bills were paid, you’d have to go to court and be appointed her guardian or conservator.

A visit to an estate planning attorney can help prevent this unpleasant scenario, and make sure you have the power to step in and make decisions on your college student’s behalf if she ever faces a situation where she can’t make decisions for herself. This is done through an incapacity plan, a set of documents that pre-authorizes you to take certain actions on behalf of your child. An incapacity plan generally includes the following documents:

• A Medical Power of Attorney: This is a document with which your child names you as her agent for purposes of making health care decisions. With a Medical Power of Attorney in place, you have the power to direct your child’s care in the event of a debilitating injury or illness.
• A HIPAA Authorization: This is a document that permits your child’s doctors to communicate with you concerning her medical records and medical care. Absent a HIPAA Authorization, you can be faced with a number of hoops to jump through before you can talk to your child’s doctors.
• A Financial Power of Attorney: This is a document that pre-authorizes you to access your child’s bank accounts, pay bills on her behalf, and even apply for government benefits on your child’s behalf, if the need arises.

Your estate planning attorney can help your child prepare for an emergency, and ensure that you have the power to be there for her if she needs you.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.