Durable Power of Attorney

May 28, 2008

Estate Planning and Moving Overseas

Often clients do Florida Estate Planning in anticipation of an overseas trip or international relocation. They often ask if they should make special considerations because of their anticipated location.

Generally we advise clients that the planning is basically the same even if they will be living overseas for an extended period of time. The one area where there may be differences is in their Durable Power of Attorney where it might be advisable to make changes.

These changes require an evaluation of the current and anticipated needs of the individual client and cannot be generalized.

April 17, 2008

Power of Attorney Abuse on Rise

by David M. Goldman

The Wall Street Journal online has an article on How to Ensure Relatives Don’t Rip You Off. Also the Toronto Estate Law Blog has an article today on POA abuse.

The article mentions several things that can be done to safeguard clients.

1) a provision requiring regular accounting statements from the agents.

March 24, 2008

Response from RocketLawyer about Defective Durable Power of Attorney

by David M. Goldman

Today, I received a response from RocketLawyer about the article I wrote on using a Free Durable Power of Attorney and potential problems. The good news is they are asking for help to fix the problems. As noted in their email, they do encourage visitors to seek legal counsel from attorneys like me when they are unsure of doing something for themselves. My only question which I shall pose to them, is how is a consumer who is uneducated in legal matters supposed to determine when they are unsure of how to do something. Isn’t the point of using a service like theirs to rely on their expertise to help create legal documents?

Below is a copy of their email

Dear David,

I recently read your critique of our Florida Durable Power of Attorney form on your blog. We strive to offer the best legal help to consumers online and we take criticism like yours seriously.

March 16, 2008

Can Trust be Modified by Agent Acting Under a Durable Power of Attorney

by David M. Goldman

Gurfinkel v. Marmor, 32 Fla. L. Weekly D2931 (Fla. 3rd DCA December 12, 2007)

The decedent’s trust beneficiaries challenged a pre-death “amendment” executed by the decedent’s spouse as attorney in fact pursuant to a valid Durable Power of Attorney . The amendment “deleted” the trust’s primary asset stock in a family corporation. The stock was subsequently transferred to one of the decedent’s sons. The trial court relied upon language in the Durable Power of Attorney to uphold the amendment. The appellate court reversed, relying upon language in the Trust which indicted powers granted by the trust could be exercised only by the grantor and not by a conservator, guardian, or any person other than the grantor.

What does this mean, if you want your agent acting under a Durable Power of Attorney to be able to change your trust, your trust should include language to allow for it.

March 12, 2008

Free Combination Living Will, Designation of Health care Surrogate and HIPAA Release

by David M. Goldman

The other day, I wrote an article on the pitfalls of using a Free Florida Durable Power of Attorney. I have been thinking of a way to provide a good power of attorney for my readers. I have been unable to come up with a generic form that I feel comfortable publishing because of the huge liability associated with the Power of Attorney in Florida. Perhaps I will figure a way to accomplish this in the future. In the mean time, I have created the second most important document to any Florida Estate Plan – the Combination Living Will, Designation of Health care Surrogate and HIPAA Release.

You may ask what is a Combo Living Will and how is it different than my existing document. The biggest difference is that this document contains a HIPAA release which is necessary for your agent to obtain medical records, and the power for your agent to make decisions when you are unable to.

Many lawyers provide these as 3 separate documents. I find that my clients like to have them in a single document because it avoids the ability for your agent to show one or more but not all of the documents to achieve their desired results and circumvent yours. By having a single document you can make sure the objectives of Florida Living Will are preserved and consistent with any actions taken by your medical agent.

March 10, 2008

Free Florida Durable Power of Attorney – Will it work?

by David M. Goldman

Over the weekend, I read an article about a Free Power of Attorney written by Jerry Bartholomew of the Michigan Elder Law Blog and decided to look for a FreeFlorida Durable Power of Attorney. I ran across a website by H & R Block called RocketLawyer.com.

This website offered me a free Durable power of attorney for Florida residents. In reading fine print, I discovered that the “Free” document was going to charge my credit card 19.95 per month for ever if I did not cancel my account within 5 days. ( I did cancel my account, but it took me a while because they do not tell you how to cancel the account. (FYI to cancel your RocketLawyer account simply send and email to support@rocketlawyer.com with the words Cancel Account in the subject.

Anyway, I thought being a lawyer I could use their service to create a valid Power of Attorney but I wanted to know if someone who did not know what to do could create an invalid document.

March 8, 2008

Gifts to yourself with a Power of Attorney

by David M. Goldman

Although a Power of Attorney often authorizes the agent to give gifts, agents should be careful when making gifts to themselves.

The Chicago Tribune has an article on an agent who gave herself $180,000 in gifts and the ensuing court battle over theft by deception, financial exploitation of an elderly person and conspiracy to commit financial exploitation of an elderly person.

If you believe someone has taken advantage of your or a loved on by the inappropriate use of a Durable Power of Attorney or Power of Attorney you should Contact a Florida Estate Planning Lawyer to review the facts.

February 26, 2008

Out of State Durable Powers of Attorney and Validity in Florida

by David M. Goldman

A Power of Attorney is generally valid when you travel because a Power of Attorney valid in another state will be valid in Florida. That being said there has been a problem with out of state Power of Attorney being properly recognized in Florida. As a result Florida passed laws that when complied with allow the agent to recover fees associated with the enforcement of a Power of Attorney which is in substantial compliance with the statute.

What does that mean for you? There is no reason why someone should not accept an out of state Power of Attorney, but no recourse when they do not.

Generally when moving to Florida, we recommend that our clients execute new Durable Power of Attorney Documents when possible. When this is not possible clients can check with their local banks to see if they will accept them. This should be done prior to transferring money to the financial institution. We have seen cases where banks accept the transfer and creation of accounts and then do not accept the agent’s authority later.

February 24, 2008

Florida Hospice Refusal to Allow Visitation

by David M. Goldman

Recently we have notice that Hospice organizations are refusing to allow people to visit relatives or friends while under the care of Hospice.

In these cases, the people were turned away because someone with a Power of Attorney was able to state that the person was not wanted.

It is important to remember that a Power of Attorney or Durable Power of Attorney give an agent the right to act in certain circumstances. In Florida, a Power of Attorney does not give someone the right to make decisions regarding where they are located, who they can visit, or who they can talk to.

February 22, 2008

Terry Schiavo judge handles divorce cases

by David M. Goldman

Florida judge who presided over the Terri Schiavo case until her death, has a new assignment. He no longer judges Florida Guardianship cases. He judges divorce cases.

The Judges transfer from Florida Probate and Florida Guardianship court to family court should allow Judge Greer who is now 65 to serve the next three years in obscurity before his retirement.

Judge Greer is nationally famous and has 20 honors displayed in his chambers. The largest is the 2005 President’s Award of Merit from the Florida Bar, “for your unswerving commitment to the rule of law, the independence of the judiciary and the fundamentals of American democracy.”