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Elder Law

Digital assets act grants personal representatives access to digital data

By Asset Protection Planning, Elder Law, Estate Planning

Senate Bill 494, also known as the Florida Fiduciary Access to Digital Assets Act, took effect July 1, 2016. The act allows fiduciaries to manage digital assets and communications in the same way one would with tangible assets.

Digital data includes emails, photos, social media content, and online account information.

The four types of fiduciaries that this bill applies to are personal representatives; guardians of minors or incapacitated persons; agents under the authority of a power of attorney; and trustees. Fiduciaries must provide evidence of their authority under Florida law.

The bill does not extend access to digital data to family members or loved ones who aren’t fiduciaries. Also, the act does not grant the fiduciaries the right to own the asset; it only allows them to access it.

By granting fiduciaries access to digital assets while you are competent, you can properly protect and plan for your assets.

December 27, 2016
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Preventing financial institutions from refusing to honor POA’s

By Asset Protection Planning, Elder Law, Estate Planning

In the last blog, we discussed the issue of financial institutions refusing to honor powers of attorney and making clients sign their own institutions’ legal forms.

In order to prevent this from occurring, here are some suggested steps to take:

  • Draft your durable power of attorney with a trusted and experienced Florida elder law attorney who will prepare comprehensive documents for you.
  • Show your DPOA to your financial institution to ensure that it will accept the document in the future. Make sure to have this agreement signed and in writing. If the institution does not approve of the DPOA, go back to your attorney for assistance.
  • If the institution is difficult to work with, ask your elder law attorney to speak with them or move your assets to a new financial institution.

While it is important to have a durable power of attorney, it is also critical to take the extra steps to ensure that it will be honored at other institutions. If you have more questions on this topic or wish to prepare end-of-life documents, contact our office at (941) 906-1231 to schedule an appointment with one of our attorneys.

December 23, 2016
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Financial institutions refusing to honor POA’s

By Asset Protection Planning, Elder Law, Estate Planning

In a recent New York Times article titled “Finding Out Your Power of Attorney Is Powerless,” the author discusses an issue that frustrates families and elder law attorneys alike —financial institutions refusing to honor powers of attorney. Some banks and brokerage firms have reportedly failed to accept powers of attorney out of fear of elder exploitation or concerns over liability.

Due to these reasons, the financial institutions have required their clients sign new forms with their institution. The banks have reportedly argued that some power of attorney documents were signed too long ago (“stale”) or even that it lacks the proper language.

Florida’s Durable Power of Attorney Act includes provisions aimed at preventing banks and financial institutions from refusing to honor a power of attorney, although they may legally require an opinion of counsel from a Florida lawyer that the document is valid.

The attorneys at Bach & Jacobs, P.A. can assist you in both the creation and enhancement of a durable power of attorney to ensure that it complies with Florida law.

December 20, 2016
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Death with Dignity: Using Advance Directives

By Elder Law, Estate Planning

While the debate about proposed death with dignity laws continues in Florida, it is important to know that current Florida law prohibits assisted suicide, which is allowed in several other states. However, there are still ways that you can have autonomy in directing your own medical care within the parameters of Florida law. In a living will document or advance directive, you can specify your refusal of life-sustaining treatments such as feeding tubes, chemotherapy, and artificial nutrition. Doctors, caregivers, and other health care providers are required to honor these documents.

If you have further questions about this topic or setting up your end-of-life documents, contact one of our experienced estate planning attorneys at (941) 906-1231.

December 9, 2016
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Death with Dignity in Florida

By Elder Law, Estate Planning

A movement that is spreading throughout this country is the death with dignity initiative, or laws that allow terminally ill patients to use prescribed medications to end their lives on their own terms. Also known as the right to die, death with dignity is only legal in Washington, Oregon, California, and Vermont. Although Florida and several other states have not adopted such laws, there are still ways to direct your own end-of-life medical care.

The death with dignity movement is a controversial one. Advocates posit that the laws minimize suffering for terminally ill patients, grant individuals authority, and lessen the burden on family, friends, and caregivers. Opponents of death with dignity believe that some patients could be pressured into making the decision, the regulatory authority over who can administer the pills is too lax, and the cheap cost of the assisted suicide could improperly affect the decision-making of doctors and patients.

This week, we’ll be blogging about what options you have as a Florida resident with regard to end-of-life planning.

December 6, 2016
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How to Use Advance Directives to Stop Financial Abuse of Seniors

By Asset Protection Planning, Elder Law, Estate Planning

Advance directives are documents that allow individuals to express their preferences and instructions regarding their healthcare and finances. Some advance directives include living wills, appointment of health care surrogates, and durable power of attorney documents. These documents are helpful in specifying your wishes for when you are unable to make decisions for yourself. By creating advance directives you can help prevent others from taking advantage of you and your assets in the event of incapacity.

When designating someone to fill these roles, it is recommended that you appoint someone trusted like a spouse, child, or a long-term friend. This person will make medical decisions for you, have access to records and finances, and will be given powers to act on behalf of you.

Living Will

A living will allows you to specify your wishes for life-prolonging procedures and end-of-life medical care.

Appointment of Health Care Surrogate

In this document, your health care surrogate has the authority to make medical decisions for you when you become incapacitated.

Durable Power of Attorney

A DPOA is used for making financial and legal decisions. While you are competent, you should designate an “attorney-in-fact” who will be given powers to act on your behalf.

Creating these documents is an important step in protecting you and your estate, and for ensuring safety and stability during times of incapacitation.

November 29, 2016
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Florida’s process of determining adult incapacitation (in a nutshell)

By Elder Law, Guardianship

The process of determining an adult to be incapacitated can be extensive and challenging for loved ones to watch. However, it is a sometimes necessary task to undertake in order to protect and care for your loved ones.

In Florida, the incapacitation process typically begins with a family member or friend filing two petitions with a Florida Court: the Petition to Determine Incapacity and the Petition for Appointment of Guardian. A court appointed attorney is assigned to the alleged incapacitated person, however, the alleged incapacitated person may use his or her personal attorney.

After an attorney has been appointed, the members of a three-person examining committee must be designated. These individuals may be social workers, psychologists, physicians, or be of a different background. The committee is responsible for evaluating the individual and preparing a report that includes a mental, physical, and functional assessment. Each report must include a variety of evaluations such as a diagnosis, or recommended treatment, the ability to retain his or her rights, the extent to the incapacity, and the results of the examinations.

When the three-person examining committee members have finished filing their reports with the court, a hearing on the Petition to Determine Incapacity is held.

If you have questions about the guardianship process for potentially incapacitated individuals, contact our office at (941) 906-1231 to schedule an appointment with one of our attorneys.

November 22, 2016
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Iowa Nursing Home Case Raises Questions about Social Media Abuse

By Elder Law, Long-Term Care

According to an NPR article titled, “Social Media Abuse of Nursing Home Residents Often Goes Unchecked” a very disturbing incident involving social media abuse occurred at a nursing in Hubbard, Iowa. The article states that a certified nursing assistant sent a Snapchat photo of a resident covered in feces to six of her coworkers. After being fired from the facility, she faced no charges because it technically wasn’t against the law.

In Iowa, the law that protects dependent adults includes no mention of social media apps due to the fact that it was last updated in 2008. Because the photo the CNA took did not show the resident’s genitals, the CNA did not violate the law by committing sexual exploitation of a dependent.

This story raises concerns for other states and their handling of senior abuse. In Florida, and in most states, there is no mention of social media apps. Although there is a clause that includes exploitation by photography, it only qualifies if the genitals or other private areas are shown.

To find a solution to this problem, try contacting your representatives in order to create legislation that properly addresses this issue.

November 18, 2016
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Changes in Estate Tax Law Alter Use of Bypass Trusts

By Asset Protection Planning, Elder Law, Estate Planning, Tax Law

In 2013, changes were made to estate taxes and now few people are subject to federal estate taxes. For those who die in 2016, the first $5.45 million of an individual’s estate is exempt from federal estate taxes, which means that up to $10.90 million is exempt for a married couple’s estates.

With these changes it now may be that a bypass trust is unnecessary for someone’s estate. Due to the restrictions put in place on the bypass trust, the surviving spouse has less control over the assets.

However, a bypass trust is still useful for estates larger than the current estate tax exemption. Additionally, even married couples who have less than the exempt amount of assets may still choose to use a bypass-style trust in order to provide for a surviving spouse’s income needs during their remaining life while still protecting an inheritance for children from a prior marriage.

To see a bypass trust would be appropriate for your family and financial situation, call our office at (941) 906-1231 to schedule an appointment with one of our attorneys.

November 15, 2016
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How to Vote While Living in a Nursing Home

By Elder Law, Long-Term Care

Voting is an important facet of democracy, but for many seniors, it can become increasingly difficult to get to the polls. For seniors who live in nursing homes, it can be even more challenging.

While it is necessary in Florida to physically cast a ballot, Florida allows absentee voting. The requirements for absentee voting vary by state, and some states require an excuse such as a physical disability to vote absentee. However, Florida and 36 other states do not require an excuse. A form of absentee voting used by 23 states, including Florida, is mobile polling. Mobile polling allows residents to vote from within their facility. To access mobile polling, contact your local elections office. Florida also offers supervised voting for absent electors. The supervisor of elections, pursuant to 101.65, F.S., is required to provide supervised voting at nursing homes if requested by the facility. Teams of at least two people, representing at least two parties, are provided for assistance. The senior can receive help from the supervised voting team or a person of the elector’s choice to cast the ballot.

Florida and 36 other states also allow early voting for those who can’t make it on Election Day. Early voting allows voters to visit an election office early without having to provide an excuse. In Florida, you can also receive personal help during early voting without having to explain the extent of your disability.

October 14, 2016
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