Terri Schiavo, Karen Quinlan and Estelle Browning: Historical Cases that Led to Development of the POLST Form

Quinlin Terry SchiavoAttorney Hamden Baskin discusses the historical end-of-life cases of Terri Schiavo, Karen Quinlan and Estelle Browning and how they influenced the creation of the POLST (Physicians Orders for Life-Sustaining Treatment) form.

 

 

What is Probate?

Living willProbate is a legal process through which the assets of a deceased person are properly distributed to the heirs or beneficiaries under a will, or if there is no will, according to Florida law. The Court oversees the estate to make sure debts are paid and proper distribution is made.

There are 3 types of Probate Proceedings:

1. Formal Administration is available for all estates.

Probate2. Summary Administration may be filed when it appears the decedent’s will does not require Formal Administration and that the value of the entire estate subject to administration in this state, less the value of property exempt from claims of creditors, does not exceed $75,000, or that the decedent has been dead for more than 2 years.

3. Disposition of Personal Property Without Administration may be filed to request release of the deceased’s solely owned assets to reimburse the person who paid the final expenses; funeral bills, medical bills for the last 60 days, etc. This procedure may be accomplished with the filing of an informal petition.

WillThe decedent’s will, if any, and certain other documents are required in order to begin probate proceedings. Typically, these documents are filed with the clerk of the circuit court in the county in which the decedent lived at the time of his or her death. The clerk maintains an ongoing record of all documents filed with the court and clerk, for the administration of the decedent’s probate estate. Click here for a list of the required recordable documents.

You may wish to seek legal advice before deciding which type of proceeding is appropriate. For help or answers to estate-related questions, you can contact BaskinFleece at 727.572.4545.

 

This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Because the law is continually changing, some provisions in this blog may be out of date. It is always best to consult an attorney about your legal rights and responsibilities in your particular case.

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POLST (Physicians Orders for Life-Sustaining Treatment)

A POSLT is a form that your doctor fills out with you that expresses your wishes for life-sustaining medical treatment. Attorney Hamden Baskin explains the differences between a Living Will, a DNR and a POLST:

 

This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Implications of the Recent Update to the Guardianship Statute

BaskinFleece is proud to announce that attorney Jeffrey A. Eisel has been made a partner, effective January 1, 2016.By Jeffrey A. Eisel, Esq.

As of July 1, 2015, significant changes were made to Florida Statute Chapter 744 regarding guardianships. Many of the changes to the previous statute focus on professional guardians. One major change that will affect many, if not most, guardianship proceedings is the change to 709.2109, Florida Statute. This statute concerns the efficacy of a Power of Attorney during the pendency of the guardianship proceedings. Prior to the changes to the statute, a Power of Attorney was deemed suspended during the pendency of the guardianship proceedings.

GuardianshipThe statute now reads as follows (emphasis added):

If any person initiates judicial proceedings to determine the principal’s incapacity or for the appointment of a guardian advocate, the authority granted under the power of attorney is suspended until the petition is dismissed or withdrawn or the court enters an order authorizing the agent to exercise one or more powers granted under the power of attorney. However, if the agent named in the power of attorney is the principal’s parent, spouse, child, or grandchild, the authority under the power of attorney is not suspended unless a verified motion in accordance with 744.3203, Fla. Stat. is also filed.

744.3203 states as follows:

1) At any time during proceedings to determine incapacity but before the entry of an order determining incapacity, the authority granted under an alleged incapacitated person’s power of attorney to a parent, spouse, child, or grandchild is suspended when the petitioner files a motion stating that a specific power of attorney should be suspended for any of the following grounds:

(a) The agent’s decisions are not in accord with the alleged incapacitated person’s known desires.

(b) The power of attorney is invalid.

(c) The agent has failed to discharge his or her duties or incapacity or illness renders the agent incapable of discharging duties.

(d) The agent has abused powers.

(e) There is a danger that the property of the alleged incapacitated person may be wasted, misappropriated, or lost unless the authority under the power of attorney is suspended.

Grounds for suspending a power of attorney do not include the existence of a dispute between the agent and the petitioner which is more appropriate for resolution in some other forum or a legal proceeding other than a guardianship proceeding.

This is an added step which now must be addressed in many contested guardianship actions where family members are the ones who may be abusing powers purportedly granted to them by the alleged incapacitated person.

The statute further addresses the requirements for such a pleading.

2) The motion must:

(a) Identify one or more of the grounds in subsection (1);

(b) Include specific statements of fact showing that grounds exist to justify the relief sought; and

Elder law, elder care(c) Include the following statement: “Under penalties of perjury, I declare that I have read the foregoing motion and that the facts stated in it are true to the best of my knowledge and belief,” followed by the signature of the petitioner.

(3) Upon the filing of a response to the motion by the agent under the power of attorney, the court shall schedule the motion for an expedited hearing. Unless an emergency arises and the agent’s response sets forth the nature of the emergency, the property or matter involved, and the power to be exercised by the agent, notice must be given to all interested persons, the alleged incapacitated person, and the alleged incapacitated person’s attorney. The court order following the hearing must set forth what powers the agent is permitted to exercise, if any, pending the outcome of the petition to determine incapacity.

(4) In addition to any other remedy authorized by law, a court may award reasonable attorney fees and costs to an agent who successfully challenges the suspension of the power of attorney if the petitioner’s motion was made in bad faith.

These changes to the Guardianship Code make it imperative to address the issues of Powers of Attorney naming family members, as contemplated in 709.2109, Florida Statute, to ensure the protection of the alleged incapacitated person and their possessions.

For more information about guardianships, call Baskin Fleece at (727) 572-4545.

This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

What Does a Personal Representative Do?

The personal representative of an estate is a person, bank, or trust company appointed by the judge to administer the decedent’s estate. In Florida, the term “personal representative” is used instead of such terms as “executor, executrix, administrator and administratrix.”

Probate assets are those assets that the decedent owned in his or her sole name at death, or that were owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death. The personal representative is empowered by the court to:

  1. Identify, gather, value, and safeguard the decedent’s probate and non-probate assets.
  2. Object to improper claims against the estate, and defend suits brought on such claims.
  3. File tax returns and pay any taxes properly due.
  4. Pay valid claims against the estate.
  5. Publish a “Notice to Creditors” in a local newspaper in order to give notice to potential claimants to file claims in the manner required by law.
  6. Serve a “Notice of Administration” which provides information about the pending estate administration and notice of the procedures required to be followed by those with an objection to the administration of the decedent’s estate.
  7. Employ professionals, as necessary, to assist in the administration of the decedent’s estate; for example, attorneys, certified public accountants, appraisers and investment advisors.
  8. Conduct a diligent search to locate “known or reasonably ascertainable” creditors, and notify these creditors of the time by which their claims must be filed.
  9. joint accounts in estate planningPay expenses of administering the decedent’s estate.
  10. Pay statutory amounts to the decedent’s surviving spouse or family.
  11. Distribute estate assets to beneficiaries.
  12. Close the estate.

If the personal representative mismanages the decedent’s probate estate, the personal representative may be liable to the beneficiaries for any harm they may suffer.

To schedule an appointment with a BaskinFleece attorney, call (727) 572-4545. For more information about BaskinFleece, visit www.BaskinFleece.com.

This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Some of the content of this information is courtesy of The Florida Bar and represents general legal advice. Because the law is continually changing, some provisions in this blog may be out of date. It is always best to consult an attorney about your legal rights and responsibilities in your particular case.

A Personal Representative’s Compensation for Ordinary Services

Personal Representative's compensationThe Florida Statutes: Compensation of a Personal Representative

The personal representative, the attorney, and other professionals whose services may be required in administering the probate estate (such as appraisers and accountants) are entitled by law to reasonable compensation. The personal representative’s compensation is usually determined in one of five ways:

  1. as set forth in the will;
  2. as set forth in a contract between the personal representative and the decedent;
  3. as agreed among the personal representative and the persons who will bear the impact of the personal representative’s compensation;
  4. the amount presumed to be reasonable as calculated under Florida law, if the amount is not objected to by any of the beneficiaries; or
  5. as determined by the judge.

Probate and personal representative

If no arrangements were made for compensation of the personal representative, a personal representative shall be entitled to a commission payable from the estate assets without court order as compensation for ordinary services. The commission shall be based on the compensable value of the estate, which is the inventory value of the probate estate assets and the income earned by the estate during administration. A commission computed on the compensable value of the estate is presumed to be reasonable compensation for a personal representative in formal administration as follows:

  • At the rate of 3 percent for the first $1 million.
  • At the rate of 2.5 percent for all above $1 million and not exceeding $5 million.
  • At the rate of 2 percent for all above $5 million and not exceeding $10 million.
  • At the rate of 1.5 percent for all above $10 million.

Real estate as probate assetIn addition to the previously described commission, a personal representative shall be allowed further compensation as is reasonable for any extraordinary services including, but not limited to:

  • The sale of real or personal property.
  • The conduct of litigation on behalf of or against the estate.
  • Involvement in proceedings for the adjustment or payment of any taxes.
  • The carrying on of the decedent’s business.
  • Dealing with protected homestead.
  • Any other special services which may be necessary for the personal representative to perform.

For help or answers to other estate-related questions, you can contact BaskinFleece at 727.572.4545.

 

This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Because the law is continually changing, some provisions in this blog may be out of date. It is always best to consult an attorney about your legal rights and responsibilities in your particular case.

How Property Passes on Death

Probate, estate planning

When someone dies, their property, be it real estate, bank accounts, stocks, bonds, jewelry, automobiles or whatever that person owns must pass to someone legally entitled to those assets. There are three basic ways property passes on death. Each way depends on how the particular asset is owned or titled at the time of death.

1. Probate. If someone owns an asset in his or her own name at the time of death, that asset should pass to the deceased beneficiaries that are specified in his or her will. If the decedent did not have a will, then the property owned by the decedent will pass under the laws of intestacy. In other words, the state of Florida makes a will for the decedent. This doesn’t mean all of the decedent’s property passes to the state but rather to individuals depending on their relationship to the decedent.

InheritanceFlorida statutes 732.102 and 732.103 set forth the statutory scheme for intestate succession. For example if a man dies without a will but is survived by a spouse and children of that marriage, then the surviving spouse is entitled to the first $60,000.00 of assets and anything over that amount is equally divided between the surviving spouse and the children.

When property passes by the terms of a last will and testament or by intestate succession, the process by which this transfer is accomplished is called probate. Probate is essentially a court supervised process whereby a decedent’s property is transferred in an orderly fashion to the ones legally entitled to those assets.

Living trusts2. Trusts. Some people elect to create a revocable “living” trust during their lifetime. Here, the trust assets are typically titled in the name of the trust. The grantor, the one creating the trust, has full power to change, modify and revoke the trust during his or her lifetime. After the death of the grantor, these trusts usually terminate and the disposition of the property held in the trust will be governed by the terms of the trust. These type of trusts typically contain language very similar to language used in a last will and testament, which specifies how and to whom the decedent’s property will pass. A successor trustee named in the trust document would then have the responsibility of effectuating the terms of the trust and to make sure the intended beneficiaries receive what the decedent intended. The administration of the trust is also similar to the probate process but is not subject to court supervision.

Attorneys are best to handle assets from a trust3. By contractual provisions. Assets subject to contractual provisions pass outside the probate process and the trust process. These assets pass directly to the recipients designated in the contract that governs that asset. The most prevalent type of asset that passes by contract would be a joint bank account. Typically a bank account titled in two or more names will pass to the survivor. Other type of contractual bank accounts include the payable on death account, or the “held in trust for …” account, a Totten trust as these types of accounts are sometimes called. Other forms of contractual arrangements which pass property directly to a named beneficiary include life insurance policies, retirement accounts and annuities.

BaskinFleece lawyer Jay Fleece

Attorney Jay Fleece

Why someone should engage in estate planning. While each of these areas are discussed in greater detail in other articles, this basic outline should illustrate how important it is to make sure that you understand how your assets are titled and how they will pass on death. The unintended consequences of improperly titling your assets could have a devastating effect on your estate plan. For those with substantial wealth, estate planning from a tax perspective can save on income and estate taxes.

To schedule an appointment with a BaskinFleece attorney, call (727) 572-4545. For more information about BaskinFleece, visit www.BaskinFleece.com.

This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Because the law is continually changing, some provisions in this blog may be out of date. It is always best to consult an attorney about your legal rights and responsibilities in your particular case.