Elder Law FAQs
Answers to basic elder law questions
Below are answers to frequently asked questions regarding various elder law matters. You may also wish to consult our Glossary of Elder Law Terms.
What is a Health Care Surrogate Designation?
A Health Care Surrogate Designation designates an agent to make health care decisions for you should you be unable to make them for yourself. Your Health Care Surrogate Designation also instructs your agent to follow your wishes as contained in your living will. All adults over the age of 18 should have a Health Care Surrogate Designation.
What is a HIPAA Release Authorization?
The HIPAA Release Authorization is prepared in compliance with federal law and supplements the Health Care Surrogate Designation. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) requires a written and signed authorization for the permitted use and disclosure of your protected health information. All adults over the age of 18 should have a HIPAA Release Authorization.
What is a living will declaration?
A living will is your declaration under Florida law that you do or do not want your life to be artificially prolonged or heroic measures taken to sustain your life at the time of a terminal illness or when you are in a permanently unconscious state. All adults over the age of 18 should have a living will declaration.
What is a durable power of attorney and nomination of preneed guardian?
Your durable power of attorney and nomination of preneed guardian is a legal document that allows you to name another individual to take all legal action on your behalf in your name, in the same capacity as you could for yourself. This durable power of attorney may allow your family to avoid the necessity of going through the procedure of establishing a guardianship through the probate court should you no longer be able to manage your own affairs. If a guardianship is required, this document provides for your selection of the person to serve as your guardian.
A durable power of attorney is an estate planning tool that allows your agent to act on your behalf. Therefore, the choice is an important one because the named attorney in-fact will have the power to transfer your property, access bank accounts, etc. as you may expressly provide in the document. The authority granted by the durable power of attorney ceases upon your death. All adults over the age of 18 should have a durable power of attorney and nomination of preneed guardian.
What is a revocable living trust agreement?
A revocable living trust provides that the assets transferred into it will be used for your benefit during your lifetime and will be distributed to your beneficiaries, e.g., your spouse, children, grandchildren, charities, etc. under the terms stated in the trust. This is a revocable trust which means you may amend or revoke the trust as you see fit.
What is a last will and testament?
A last will and testament addresses the distribution of your probate assets at the time of your death. Please note that your will does not govern property that is already designated by way of specific beneficiary designations, joint and survivorship accounts, payable-on-death accounts, transfer on death accounts, beneficiaries under life insurance policies, or pension plans. In your plan, your will provides for distribution to your trust, spouse, children, grandchildren, charities, etc. Your will also appoints an executor or personal representative who will oversee the distribution of the probate estate. Your will also provides your designation of who shall serve as guardian of your minor children.
If I have a will, does it go through probate?
Yes. A will is an important document that is recommended to all clients. However, it does not avoid probate, but is presented to the court with your selection as to a personal representative, and/or guardian of your minor children, and contains instruction as to how the personal representative is to distribute the remaining assets after the payment of debts and expenses. A personal representative appointed under a will must obtain approval and authority from the probate court in order to act.
Can I avoid probate without a trust?
Yes. For modest estates, it may be beneficial and more cost-effective to provide for distribution through the use of transfer on death designations.
How can a trust help me?
There are many reasons clients choose to set up a trust. Some of the benefits in setting up a trust that you should consider are: avoidance of probate and privacy with respect to your distribution plans, possible avoidance or minimizing of estate taxes, maintaining a fund to provide for the care of a beneficiary without outright distribution either indefinitely or until the beneficiary reaches a certain age, while avoiding forced distribution to the beneficiary or his/her creditors, or interfering with federal assistance where an outright transfer to a beneficiary would render him/her otherwise ineligible
While trusts have become very popular estate planning tools in Florida, they are not a one-size-fits-all solution to estate planning. In some cases, it might be more beneficial to employ the judicial oversight required of a will, and as noted above, modest estates typically do not require trusts.