Living Will - Dade Legal Aid

Life Planning
Gerald W. Pierre, Esq.
David Howard Goldberg, P.L.
Office in Miami, Florida
Phases of Life
• Younger Years
– Simple Will
• Middle Years
– Complex Will, including provisions for
children, life insurance, etc.
• Retirement
– Estate Tax Planning
– Incapacity Planning
– Insurance Planning
Life Planning Documents
Health Care
Living Will
Burial and
Of Attorney
• Estate Planning is the set of all the action
that a person takes to provide for the
orderly and timely settling of his or her
affairs after death.
• Estate Plan arranges what will happen to
your assets after your death – who and
Advanced Health Care Directives
• Florida Statute Chapter 765, which is
entitled, “Health Care Advance Directives”,
will be the primary resource.
• Two important areas to focus on:
– Appointment of Health Care Surrogate
– Creating a Living Will
Advance Health Directives Legislative Intent
• As stated in Florida Statute 765.102(1) and (2):
– (1) The Legislature finds that every competent adult
has the fundamental right of self-determination
regarding decisions pertaining to his or her own
health, including the right to choose or refuse medical
treatment. …
– (2) To ensure that such right is not lost or diminished
by virtue of later physical or mental incapacity, the
Legislature intends that a procedure be established to
allow a person to plan for incapacity by executing a
document or orally designating another person to
direct the course of his or her medical treatment
upon his or her incapacity. …
Appointing the Right Health Care
• Health Care Surrogate is covered under Florida
Statute sections 765.201 through 765.205.
• Duties are covered under Florida Statute
• Health Care Surrogate can be any competent
adult who has been given authority to make all
health care decisions during a person’s
• Appointment of a guardian affects the surrogate
to the extent the Court so orders under Florida
Statute 744.3115.
Appointing (Cont.)
• Principal can designate an Alternate
• In the absence of a living will, the
surrogate can make decisions to withhold
or withdraw medical treatment
• Surrogate must be satisfied that principal
will not regain capacity so that they can
exercise that right and that principal has
an end-stage condition.
Appointing Health Care Surrogate
• Requirements:
– Written document
– Signed in the presence of two witnesses
– If the principal is physically unable to sign the living will, one of
the witnesses can sign it in the presence and at the direction of
the principal.
– Designated Health Care Surrogate cannot be a witness.
– Exact copy must be provided to surrogate
• Remains in effect until terminated by the principal
• A suggested form of a Health Care Surrogate is provided
under Florida Statute Section 765.203
Health Care Surrogate
• Is effective only when the attending
physician determines in the principal’s
medical record that the principal does not
have the capacity to make informed health
care decisions.
Health Care Surrogate Revocation
• By a signed and dated letter of revocation
• By physically canceling or destroying the
original document
• By orally expressing their intent to revoke
• By executing another document that is
materially different from the original.
Health Care Proxy
• Comes into effect where the principal has
neither executed an advance directive nor
appointed a surrogate to execute an
advance directive or the designated
surrogate is not available to make medical
Proxy Candidates
• Spouse
• Principal’s Adult child or majority of adult
• Parent
• Sibling or majority of siblings
• Adult relative
• Friend
Living Will - Generally
• Purpose is to provide the principal’s instruction to
medical professionals as to the provision, withdrawing,
and withholding of life prolonging procedures in the case
where the patient has a terminal condition, end-state
condition, or is a persistent vegetative state.
• Living Wills are covered under Florida Statute sections
765.301 through 765.310
• To be effective, the principal must be incapacitated to
give instruction and there must be no reasonable
medical probability of recovering capacity.
• Florida will recognize a Living Will, which has been
signed in another state, if it complies with the laws of that
state or is in compliance with the laws of the State of
Living Will
• Requirements:
– Written document
– Signed in the presence of two witnesses
– If the principal is physically unable to sign the living
will, one of the witnesses can sign it in the presence
and at the direction of the principal.
– A suggested form of a Living Will is provided under
Florida Statute 765.303, which is provided as a
courtesy of The Florida Bar and the Florida Medical
Living Will
• Revocation:
– At any time, principal can revoke by a signed
and dated letter of revocation
– By physically canceling or destroying the
original document
– By orally expressing their intent to revoke
– By executing another document that is
materially different from the original. Practice
tip: remember to notify the principal’s
physician of the changes!
Durable Power of Attorney
• Generally: It is a written authorization to
represent or act on another's behalf in
private affairs, business, or some other
legal matter.
• This power is “durable” because it
continues even after the principal
becomes incapacitated.
Durable Power of Attorney
• A power of attorney that states it is a
durable power of attorney and which is
executed after October 1, 1995 will survive
the incapacity of the maker of such power.
– Florida Statutes, §709.2104
• Document allows the transfer of assets
from an individual’s name to a trust for the
individual’s benefit in the event of
Purpose of Durable Power of
• Florida Statute Chapter 709, which is
entitled, “Powers of Attorney and Similar
Instruments”, will be the primary resource
• Purpose
• Individual (the “principal”) executes a document
giving another person (the attorney-in-fact or
agent”) the authority (the power of attorney or
POA) to act on the principal’s behalf.
Types of DPOA
• DPOA without the designation of a health
care surrogate
• DPOA with the designation of a health
care surrogate
Power of Attorney for
• Document authorizes a trusted friend or
family member to make medical decisions
for you when you are unable to do so.
• Holder can consent to medical treatments
and obtain medical records.
• Similar to powers of a “health care
DPOA Requirements
• Written document
• The agent must be a natural person who is 18
years of age or older or a financial institution that
has trust powers, has a place of business in this
state, and is authorized to conduct trust
business in this state.
• Signed in the presence of two witnesses and a
– Florida Statutes §709.2105
DPOA General Structure
DPOA Agent’s Powers
• Standard powers – Florida Statutes,
• Special powers
• Agent is authorized to act in a limited
fashion with a particular matter
• Power limitations
DPOA Agent’s Powers (cont.)
• Common powers included in DPOA:
– Manage, buy/sell, lease real property interests
– Buy/sell, exchange tangible personal property
– Invest on behalf on principal in
– Contract in various business affairs
– Participate in litigation, i.e. sue on behalf of
DPOA Agent
• Cannot:
– Create a will for you
– Enter into a marriage contract
– Vote in a public election on behalf of principal
– Make any affidavits as to personal knowledge
of the principal
– Perform duties under a contract that requires
the exercise of personal services of the
Effective Date of Power
• As of October 1, 2011, the powers are
exercisable as of the date of execution.
• If an agent seeks to use a springing power
of attorney executed prior to October 1,
2011, then the agent must obtain an
affidavit from primary physician stating
he/she believes the principal lacks
capacity to manage property.
DPOA Termination
• Florida Statutes, §709.2109
• Agent receives notice that the DPOA has been
• Principal has died
• The durable power of attorney provides that it
• The purpose of the DPOA has been
Note: If just a regular Power of Attorney, the principal’s
adjudication of incapacity will terminate the POA.
Recent Changes to DPOA
Before October 1, 2011
After October 1, 2011
Springing provisions
Power effective upon execution
Blanket powers
Enumerated powers, and new
“superpowers” requirements
New provisions to protect
banks from liability for
accepting DPOAs
Document must be signed by 2
Document must be signed by 2
witnesses and a notary
Agent has a new duty to
attempt to preserve the
principal’s estate plan to the
extent it is known to the agent.
If co-agents are named,
concurrence of both are
If co-agents are named, each
can act independently
• HIPAA Release Authorization - Health
Insurance Portability and Accountability Act
of 1996 (HIPAA)
• As noted by the Florida Medical Association,
HIPAA’s purpose was to provide consumer
with greater access to health care insurance,
provide privacy to health care data, and
provide national standardization and greater
efficiency in the health care system.
Burial and Funeral Designations
• Arrangements can be dictated in the last will and
• Disposition of the body (cremation, burial, or
Type of ceremony (Catholic, Jewish, Christian, etc.)
Funeral home to handle the arrangements
Individual to officiate
Place or location of the ceremony
Cemetery or burial plot
Disposition of ashes
Type of casket
• Funeral may be paid out of the estate
• Social Security Administration and
Veterans Administration may have some
benefits available to pay funeral expenses
• Directs how the estate will be handled and
received by the heirs; must be in writing
• Distributes assets through the probate
• Nominates preneed guardian for minor
• Establishes testamentary trusts for heirs
• May reduce estate taxes
Without a Will
• Florida legislature decides who gets what
• If the decedent only has lineal
descendants, first $60k of estate goes to
spouse, then split 50/50 between spouse
and descendants.
• If the decedent has non-lineal
descendants, then estate is split 50/50
with spouse and descendants.
• Preneed Guardian Designation
– Written declaration
– Two attesting witnesses
– Suggestion to the Court as to preference
• Court appoints Limited/Plenary Guardian
• No access to funds; restricted depository
• Florida Statute Chapters 709, 732, 744
and 765
• The Florida Bar, Consumer Information
• The Florida Medical Association
• Florida Estate Planning by Brian V.
McAvoy, Abraham M. Mora, and Shelly
Wald (West’s Florida Practice Series)
• Beliefnet
Contact Information
• David Howard Goldberg, P.L.
SunTrust International Building
One Southeast Third Avenue, Suite 1940
Miami, Florida 33131
• Telephone Number: (305) 760-8888
• E-mail: [email protected]

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