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Elder Law

Changes to the Florida Health Care Surrogate Act for Minors

By Elder Law, Estate Planning

Legislation that made changes to the Florida Health Care Surrogate Act was enacted in October of 2015. Although many of the changes affected competent adults, there were also changes that affected the medical treatment of minors. The bill makes a change that no power of attorney executed after October 1, 2015 can consent to the treatment of a minor.

The bill makes an amendment to s. 743.0645, F.S. to establish that a power of attorney executed between July 1, 2001 and September 30, 2015 is sufficient to authorize an individual to consent to ordinary and necessary health care for a minor. However, the bill changes the statute so that no power of attorney executed after October 1, 2015 will have the authority to consent to the treatment of a minor.

After October 1, 2015, only a health care surrogate, designated pursuant to 765.2035, F.S., can allow someone other than a parent or guardian to consent to medical care or treatment for a minor. This designation must be in writing and signed by two witnesses. The designation can be revoked or amended at any time.

April 21, 2017
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Changes to the Florida Health Care Surrogate Act for Adults

By Elder Law, Estate Planning

Florida recently enacted changes to the Florida Health Care Surrogate Act that gives patients additional flexibility in appointing an agent and add additional notification requirements for facilities. These improvements went into effect October 1, 2015, and impact both adults and minors.

The bill created a new statute 765.202(6), F.S. that allows an individual to designate a health care surrogate who can act and make health care decisions while the individual is still competent. Historically, a determination of incapacity has been essential to a health care surrogate taking effect. Now, however, a health care surrogate can be given authority immediately upon execution of the document. The bill also maintains that when a conflict arises between the principal and the surrogate, the decision of the principal prevails.

The bill amended s. 765.204, F.S. so that a health care facility is required to notify the surrogate of a determination of incapacity. It is also required now that if the health care facility knows of a durable power of attorney, it must also notify the attorney in fact of a determination of incapacity. Lastly, the bill makes it a requirement that the attending physician’s office notify the principal’s primary physician of the principal’s incapacity.

To update your appointment of health care surrogate document or other estate planning documents, contact Bach & Jacobs, P.A. to schedule an appointment.

April 18, 2017
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Arbitration agreement surviving death of signatory

By Elder Law, Long-Term Care

In the 2013 case Laizure vs. Avante at Leesburg, Inc. (SC10-2132), the Florida Supreme Court had to consider whether a nursing home patient’s agreement to arbitrate all claims against a nursing home applied to the heirs of the patient in bringing a wrongful death claim against the facility. The Supreme Court ruled that the arbitration agreement applied to the wrongful death action.

After undergoing a surgery, Harry Lee Stewart entered into a nursing home to receive rehabilitation. In order to be admitted to the facility, Stewart had to sign an arbitration agreement that required patients to arbitrate any claim made against the nursing home. Quickly after his admittance to the nursing home, Stewart died. His personal representative, Debra Laziure, then filed a wrongful death suit and alleged that the nursing home violated the Florida Nursing Home Resident’s Rights Act.

According to the arbitration agreement, the claims include “breach of contract, breach of fiduciary duty, fraud or misrepresentation, common law or statutory negligence, gross negligence, malpractice or a claim based on any departure from accepted standards of medical or nursing care, where the alleged damages exceed ten thousand dollars ($10,000).”

The Court ruled that the claim of negligence is arbitrable and the agreement also applied to the estate of Stewart.

April 11, 2017
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Guardianship vs. POA: Incapacitated Individuals Making Dangerous Decisions

By Elder Law, Estate Planning, Guardianship

Despite having a power of attorney and other lesser restrictive alternatives in place, there may still be situations in which appointing a guardian is necessary for the safety of the incapacitated individual. Sometimes, an incapacitated individual will become uncooperative and refuse care and assistance from loved ones. Incapacitated individuals can also put themselves in physical danger by mishandling electrical equipment, refusing medicine, forgetting to eat, and carelessly driving.

Under Florida law, it is unlawful to force an individual to stay in an assisted living facility or to house an unwanted caregiver absent a guardianship. It is sometimes necessary to appoint a guardian that will protect the individual from their own incapacity.

If you have more questions on this topic, please contact our office at (941) 906-1231 to speak with one of our attorneys.

April 4, 2017
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Guardianship vs. POA: Exploitation

By Elder Law, Estate Planning, Guardianship

While appointing a power of attorney can mitigate the need for a guardianship, there are other times in which a guardianship is necessary.

In the last blog post, we discussed the need for a guardianship in the event that the incapacitated person lacks competency and makes harmful decisions. A guardianship may also be needed if the power of attorney does not act in the best interest of the incapacitated person.  If the power of attorney is exploiting the individual by depriving them of their funds or their rights, a court will appoint a guardian to prevent any continued abuse.

If you have more questions on this topic, please contact our office at (941) 906-1231 to speak with one of our attorneys.

March 31, 2017
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Guardianship vs. POA: Incapacitated Individuals

By Elder Law, Estate Planning, Guardianship

In estate planning documents, an agent can be  chosen to act under a power of attorney, which is especially  useful in the event that the principal becomes incapacitated and cannot make decisions for himself.  Typically, a power of attorney is given the authority to control financial affairs. Other times, powers of attorney have complete control over the ward.

When the power of attorney is properly advocating for the ward, and the ward is cooperative, a guardianship may be avoided. However, there are instances and situations that nonetheless necessitate a guardianship. If the incapacitated individual continues undertaking financial activities that put their assets at unreasonable risk of depletion and wasting, a guardianship may be necessary. The guardian can make decisions regarding the ward’s financial, legal, and medical affairs, but some decisions must be approved by the court. By appointing a guardian, the court is able to preserve the ward’s property from dissipation.

If you have more questions on this topic or wish to set up documents, please contact our office at (941) 906-1231 to speak with one of our attorneys.

March 28, 2017
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Restricted Filing: Changes to Social Security May Affect Retirement Planning

By Asset Protection Planning, Elder Law, Government Benefits

In 2015, Congress passed the Bipartisan Budget Act of 2015 which put an end to Social Security strategies that allowed couples to grow their spousal benefits. The two strategies “file and suspend” and “restricted filing” were used by married couples and were known as “claim now, claim more later.”

 

Restricted Filing

 The Congressional legislation banned restricted filing for individuals under the age of 62 as of January 2016. Restricted filing allowed an individual who was eligible for both a spousal benefit and a retirement benefit to choose just the spousal benefit at the retirement age of 66. Thus, the benefit could continue to grow at 8% each year and then that individual could opt for a larger benefit at any time up to the age of 70.

 

Despite these changes, there are still ways to grow your Social Security benefits. One method of accomplishing this is by deferring your payout. Because Social Security grows by 8% each year between your retirement age (usually 66 or 67) and 70, you can amass a sizeable increase if you choose to defer. Deferring payment also helps spouses by increasing the Social Security survivor benefit.

March 3, 2017
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File and Suspend: Changes to Social Security May Affect Retirement Planning

By Elder Law, Government Benefits

In the fall of 2015, Congress voted down the Social Security strategies known as “file and suspend” and “restricted filing” which were collectively called “claim now, claim more later.” These practices allowed couples to increase their benefits by thousands of dollars. However, because of the Bipartisan Budget Act of 2015, spousal benefits could cost Americans millions of dollars.

 

File and Suspend

 File and suspend was a strategy utilized by married couples about to retire. One spouse would apply for Social Security upon retirement and then ask to suspend their benefits. The other spouse would then be eligible for a spousal benefit, which is half the normal benefit. While this process is happening, the spouse with suspended benefits would watch their Social Security benefit increase at 8% each year until the spouse turned 70.

However, now due to the changes enacted in Congress, spousal benefits may only be received when the spouse whose financial record is being used for the application is currently receiving their own benefit.

 

February 28, 2017
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What are niche senior communities?

By Elder Law, Long-Term Care

For many retired seniors, finding a senior living community can be a challenging task. It can be tough to transition from living independently to moving into a community with frequent and close interaction with lots of other folks. However, a growing alternative to the traditional senior living community experience is the niche or “affinity” senior living community. These communities offer seniors the opportunity to live with other like-minded individuals who want to engage in similar activities.

Niche senior communities are particularly attractive to the Baby Boomer generation. They provide couples and individuals of certain religions, backgrounds, and groups a place to meet others like them and to connect with their interests.

Examples of these “niche” communities include those geared toward Indian-Americans, fitness enthusiasts, country music lovers, and more. By joining a niche senior community, you can continue to explore your interests into retirement and surround yourself with like-minded individuals with whom you already have a few things in common.

January 31, 2017
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How do I change my advance directive?

By Elder Law, Estate Planning

Advance directives are documents that spell out your medical wishes for end-of-life care. Advance directives include living wills and the appointment of healthcare surrogates. As you get older it is important to revisit and update your advance directives so they properly reflect your intentions.

According to the American Bar Association, there are five “D’s” after which you should revisit your advance directives:

  1. Decade — When you begin a new decade in your life
  2. Death — When a loved one passes away
  3. Divorce — When you get a divorce or experience a big family change
  4. Diagnosis — When you are diagnosed with a disease or other health condition
  5. Decline — When you decline in health and lose certain abilities

Under Florida law, you may change or revoke your advance directive in a number of ways. You may sign and date a document that communicates your plan to revoke the directive, you can physically destroy the original, you can orally express your plan to revoke, or you can establish a new advance directive that replaces the old one.

If you have further questions on this topic or wish to set up end-of-life documents, contact our office at (941) 906-1231 to schedule an appointment with one of our attorneys.

January 17, 2017
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