15
Jan

You Know Your Physical and Financial Health, but Have You Checked Your Legal Health?

Legal HealthAs we begin a new year most of us set personal goals. We hope to eat healthy, exercise, and spend more time with our loved ones. Many of us strive to save money and spend less. It is a great opportunity to reflect on our habits and to set objectives for the future. As part of that planning and reflection, consider a review of your legal health.

Do you have documents in place for your healthcare and financial well-being in the event of incapacity? Do you have a will or trust? Set aside time to review your documents and asses your legal health. Consider the date you signed your documents and think about whether you have experienced any significant life changes since that time. Review your bank accounts and financial records and think about whether you bought or sold any real property. As busy lives continue to change, it is important to confirm that your goals are being met.

In the past five years, there have been several changes to Florida law effecting estate planning documents. The Florida Power of Attorney Act has been in place since October 1, 2011. The changes enacted at that time were intended to protect Florida residents from abuse or overreaching by the authorized agent. One of the many significant changes is the requirement that the principal initial specific powers to grant certain authority(s) to his or her agent. Merely signing the power of attorney in the presence of two witnesses and a notary public is no longer enough to extend such powers. More recently, Florida law has been amended as to health care surrogates. In the past, generally a determination of incapacity was required before a surrogate could act on behalf of a principal. Now, a health care surrogate may act at any time, including while the principal is still competent and able to make his or her own decisions. This allows a surrogate to act for principal who may be competent, but may wish for the surrogate to act on his or her behalf. Additionally, it is common for an incapacitated person to vacillate in and out of capacity. This change avoids delays caused by repeated requests for incapacity determinations during the course of medical treatment. Finally, statutory forms have been created for the designation of a health care surrogate for both an adult and a minor.

Also notable, is the change in the descent of homestead, as of July 2012. In the past, a surviving spouse was entitled to a life estate in homestead property upon the death of his or her spouse. Now, a surviving spouse may elect to take an undivided one-half interest in the homestead. The election must be made within six months after the decedent’s death and the notice of election must contain specific requirements.

Like your physical health or financial health, it is necessary to review your legal health. Schedule a check up at least every five years, or upon a significant life event, to review your documents and confirm that they are consistent with your current needs and desires and well as the current laws.

 

Elaine N. McGinnis, Esq.

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