An essential part of estate planning is setting up clear instructions for loved ones about your wishes with regard to medical treatment. It is incorrect to believe that a Last Will & Testament contains information that will empower your loved ones to make decisions in line with your desires in the event that you are incapacitated or unable to communicate. To provide your loved ones with information about your medical care desires and give them the power to make decisions on your behalf, you must set up advance directives. It is recommended that you set up a living will, health care surrogate, pre-need guardian, and/or health care proxy to protect your wishes. These documents should be put into place far before incapacitation occurs and discussed with loved ones so they are clear about your wishes. If you would like to discuss what documents you should have in place to give instructions about medical treatment, please contact Bach & Jacobs, P.A. at (941) 906-1231.
Estate planning involves signing legal documents which those who are incapacitated due to a dementia diagnosis often cannot do. For estate planning documents to be valid, they must be executed by a person with “testamentary capacity.” This is why proper estate planning before capacity is lost or diminished is critically important in ensuring assets will be passed on to the desired beneficiaries.
However, a diagnosis of dementia does not always entail an immediate loss of legal competency or the right to sign contracts and undertake estate planning. If a diagnosis of dementia is made and estate planning documents are not already in place, it is important to meet with an estate planning attorney right away to assess the necessary legal capacity or competency and discuss an estate plan before it is too late.
If you need help with estate planning for you or a loved one, contact Bach & Jacobs, P.A. at (941) 906-1231.
The most important aspect of the new legislative changes to the Florida guardianship law is the modification of the method of appointing an emergency temporary guardian. Under the new law which takes effect July 1st, 2015, a person who is allegedly at imminent risk of physical harm or of having their assets wasted and misappropriated and therefore in need of emergency guardianship protection must be notified along with their attorney at least 24 hours before the emergency court hearing. Previously, advanced notification was not required which left many unprepared for proceedings. This advanced notification is especially important as it has historically been difficult to contest the need for a guardian after one is appointed on an emergency basis as the ability to make a decision to change attorneys or access financial assets is often hindered. Emergency temporary guardianship often led to a permanent guardian being appointed. Now, an emergency guardian will no longer be given preference in hearings appointing permanent guardians and emergency guardians cannot be appointed to permanent positions without a request from the ward or their family.
Another change to the law is that if the ward’s condition improves and they could have some of their rights restored, the guardian is required by law to notify the court. Lastly, a guardianship cannot suspend the power of attorney.
Babette Bach worked for the past year on this new law and is a legal activist for the elderly. If you have questions about the new guardianship law or would like set learn about setting up a Designation of Pre-need Guardian, contact our Florida Board Certified Elder Law Attorney Babette Bach, Esq. at (941) 906-1231.
Bach & Jacobs attorney Babette Bach has been working for the past year on a new law to regulate guardians and emergency guardianship proceedings. Bach stated in an interview with ABC 7 that this law will strengthen the number of quality, educated professional guardians working in the state of Florida. To hear more about this new law, watch the interview with Babette linked below.
To read the 2015 Declaration of Preneed Guardian for Adult, follow this link: Preneed Guardian for Adult
Follow this link to read the 2015 Declaration of Preneed Guardian for Minor Child: Declaration-of-Preneed-Guardian-for-Minor-Child
Question: Can a Foreign Guardian Manage an Incapacitated Person’s Property in Florida?
Answer: A foreign guardian is a guardian appointed in another state or country. A foreign guardian may manage property located in Florida upon petitioning the Florida court for an order allowing them to manage the ward’s Florida property. Managing the property would include any actions necessary to obtain, administer or dispose of real property, intangible property, business property, benefits and income according to §744.102 (12)(a) of the Florida Statutes. The court may require an additional bond if the foreign bond is insufficient to cover the ward’s Florida property.
If you need assistance or information regarding a Foreign Guardianship, please contact our office for an initial consultation.
Question: I was the guardian for a ward who has recently died. Can I petition to open a probate proceeding and be appointed personal representative also?
Answer: Usually, the named personal representative in the decedent’s will is the one who initiates the probate proceeding. The guardian, who typically will have all of the deceased’s personal records, would normally notify all the family members and the personal representative designee upon the ward’s death. However, sometimes the decedent dies intestate (without a will) or the designated personal representative is unable to serve. The guardian is considered an “interested person” under the Florida Probate Code for the purposes of commencing probate proceedings and can open the probate. The guardian may be required to commence the probate proceedings to transfer the guardianship assets to the probate estate. However, there could be some cases where the guardian’s appointment as personal representative of the ward’s estate is inappropriate. For example, if a conflict of interest existed between the ward and the guardian prior to the death of the ward, then the court may be inclined to appoint a guardian ad litem, an administrator ad litem, or a different personal representative all together. If you are the guardian for a recently deceased ward or want to petition to be appointed the personal representative for a deceased ward, contact Bach & Jacobs to schedule an appointment with one of our attorneys.
