January Open House: Florida Durable Power of Attorney Update Needed

You are invited to an informal OPEN HOUSE at our office in Orange Park on the morning of Friday, January 16, 2015, from 9:00 a.m. through noon.

The purpose of this event is twofold.

First: We want to informally visit with you in person at the start of this New Year, 2015. We had a well attended firm-wide client appreciation event last year in the evening in Orange Park, but not everyone who wanted to attend was able to make it. We also had an informal holiday open house at our office in December, but busy schedules kept some away. Also, some of you still have not met our associate attorney, Alison E. Hickman, who is now in her second year of practice with us. We’d like to see as many of you who can make it to our office in January and catch up.

Second: Most importantly, many of our clients do not have the most current, broadly drafted, legally effective Durable Power of Attorney (“DPOA”). The Florida Legislature made statutory changes to the prior 1996-era, Florida DPOA Act, both in the 2011 and 2013 Legislative Sessions. The 2011 statutory changes in particular were very substantial and wide sweeping. Because of those legal changes, many of our aging clients no longer enjoy the luxury of relying on an existing, broadly drafted, fully effective Durable Power of Attorney, should their appointed attorney-in-fact (i.e., the legally designated representative and agent for them), usually a spouse or close family member, need to take otherwise necessary or appropriate planning actions on their behalf.

The following examples illustrate the importance of having a current Durable Power of Attorney.

Example 1: Mary has a Revocable Trust. Mary also now has some confusion in her thinking, which makes it difficult for her to make good informed decisions. She has been advised that she needs to complete her trust funding as to some assets she now owns in her name alone. Absent an updated DPOA, Mary’s prior DPOA is no longer effective to legally authorize her daughter, Martha, to transfer title of those assets to Mary’s Trust. Result: Potential probate required for those unfunded, or not properly funded, separately titled assets.

Example 2: Mary now does not have the ability to clearly make good informed decisions as to her daily living matters, and Martha is now acting as Mary’s primary decision maker, and provides or arranges for Mary’s in home care. If Mary cannot be well cared for in her home indefinitely, using her existing financial, insurance, and other resources, then Martha will have to undertake long term care eligibility planning for Mary in a safe facility. Absent powers in an expanded, broad, updated DPOA, compliant with the recent legislative changes in Florida, Martha will not be able to take the necessary legal actions to so plan on Mary’s behalf, let alone fully implement and pay for a successful “Crisis Plan” for Mary’s long term care, should quick action be needed. Result: Martha, despite the prior DPOA, now limited in its application by law, has to seek a Court Ordered Incapacity and Guardianship over Mary, and hope that the Judge and any potentially affected family members will agree with whatever long term care planning actions would otherwise be undertaken to ensure a safe, cost effective, long term care plan for the rest of Mary’s life.

Example 3: Martha, due to Mary’s cognitive condition, presents Mary’s older DPOA to the bank, and asks to have check writing ability on Mary’s existing single account. Result: Martha is denied due to the bank refusing to accept “pre-October 1, 2011 DPOAs.” Martha has to fight the bank in Circuit Court to prove up the continuing, but now limited, application of the prior DPOA, initiate an incapacity and guardianship proceeding for Mary, or see if Mary can pre-sign blank checks for Martha to use as an informal solution for the time being, until there is a bigger issue regarding Mary’s bank account.

We are not trying to scare you, but our estate planning and elder law planning clients who have reliable family members or trusted friends need to have the fully updated DPOAs for their own future lifetime planning benefit, and also to aid in any final tweaks which might need to be made later as to their trust or other final estate planning. In addition to the foregoing, further 2014 legislative changes to F.S. s. 825.103, dealing with updated criminal prosecution of and sanctions for “Exploitation of an elderly person or disabled adult”, now make it more challenging to lawfully utilize even a broadly drafted, updated DPOA. More than ever before, this is now an area requiring the advice, planning, and services of an experienced attorney. We want you and your designated agent under a DPOA to be properly equipped, and, if needed, properly counseled and advised in the future use of your DPOA.

The initial cost of an incapacity and guardianship proceeding usually exceeds $5,000.00, and in some cases has even been known to exceed $10,000.00. Plus there are annual recurring costs with the judicial process, once a guardianship case starts. Courts may now be even more reluctant to allowing post-incapacity planning in a guardianship case, based on the 2014 legislative changes mentioned above.

Very few Circuit Court actions to enforce a prior DPOA can be brought for less than $3,500.00, given the cost of 21st Century civil litigation, and the potential complexities and considerations of new F.S. s. 825.103. Not many clients or their families really want to incur that time and expense upfront, even if they expect that they will be able to recover their costs and fees if they are successful in court.

A broad DPOA signed in our office costs only $195.00 per individual, or $295.00 for a married couple, and can often alleviate the need for a future guardianship. You do the math. We like you better protected for the future at a lesser planning and legal cost to you now.

If you want to update to the most current DPOA that we offer in light of these considerations, please contact us by phone, 904-264-8800, or by email to renee@floridaelder.com, to place your order now. We plan on signing orders taken in advance at the event on January 16th. If it is more convenient for you to arrange a signing on your own, we will deliver the documents to be signed to you, with careful instructions, which you can follow to legally sign them outside of our office. We are taking final orders for any other DPOAs that day at our current pricing. Our pricing for DPOAs is increasing in February 2015, and will still be substantially less than the true cost of relying on a weak or out of date DPOA, but your best value is to order your updated DPOA for signing NOW!

We are not trying to pressure you, but we want you to understand that THIS IS VERY IMPORTANT FOR YOUR FUTURE! Please respond and update your existing plan with a broad, current, legally effective DPOA. Thank you, and we look forward to seeing you on January 16th from 9:00 a.m. through noon.