Common Questions About Florida Law
It is natural to have many questions and worries when faced with a legal issue or litigation. The experienced lawyers at DeLoach, Hofstra & Cavonis, P.A., ask many common legal questions and provide useful answers to help get you in making the best decisions for you and your family.
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How is VA Pension counted for Medicaid purposes?
This is not an easy answer as you may think!
When someone is on Medicaid in Florida, there is both an income and asset limit for eligibility. The financial guidelines are provided at this link. Medicaid counts the applicant's gross income for qualification purposes. When income exceeds the income cap, a qualifed income trust is necessary in order to qualify for Medicaid.
But what about when the Medicaid applicant is receiving VA Pension? VA Pension can be very helpful for paying for an elder's assisted living or in-home care. VA Pension Benefits are outlined here. The highest Pension benefit is known as "aid and attendance," with monthly benefits as follows (2018):
- Married Veteran: $2,169/m
- Single Veteran: $1,829/m
- Surviving Spouse: $1,176/m
But if someone is applying for Medicaid, how much of the Pension income is countable for gross income purposes? The answer is NOT ALL! Medicaid excludes "aid and attendance" income from the gross income calculation. But the answer does not even stop there! Aid and Attendance is only the highest level of VA benefits. Lower levels are "base pension" and "homebound." Interestingly, the base pension amount is countable as income for Medicaid purposes. For 2018, base pension levels are as follows:
- Married Veteran: $1,436/m
- Single Veteran: $1,097/m
- Surviving Spouse: $ 735/m
An example is as follows:
Surviving spouse of a wartime veteran is receiving $1,176/m in VA Pension Aid and Attendance. Her Social Security income is $1,500/gross per month. Her income for Medicaid purposes towards the income cap of $2,250/m is $2,235/m, so she does not need a QIT. ($1,500 plus $735 (the base pension amount) = $2,235). Notice that only the $735/m counted as income for Medicaid purposes, not the full $1,176/m that she receives.
When you are applying for Florida Medicaid and VA Pension benefits are already coming in (mostly meaning Aid and Attendance) then these calculations will be very important.
It is also important to note is that if the elder receives Medicaid in the nursing home, the VA will need to be notified and then his/her VA Pension (including Aid and Attendance) will eventually be reduced to $90/month, which is not countable as income for Medicaid purposes.
VA Pension income does not include any VA Disability payments. VA disability is all countable income for Medicaid purposes, so it is important to know what type of VA income is being received.
If you want to learn more about VA or Medicaid benefits, please feel free to attend one of my free monthly seminars.
If I am on Medicaid, will Florida take my home upon death?
The basic answer is "no." If you die and your home goes to your heirs-at-law (i.e., family members) then the state of Florida cannot take your homestead property. It is true that Florida has a claim in the decedent's estate as part of estate recovery laws, but in Florida, your homestead property is exempt from your creditors, even upon death. There are a few caveats here:
- Your last will and testament must not direct that your home be sold; and
- Your home must not have been rented during your lifetime, which would cause it to lose its homestead status.
The homestead property can be sold and the proceeds can be protected, importantly. Another issue is that the home may be sitting there for a long time, which creates more issues. It may be best to protect your homestead property in advance with an irrevocable asset protection trust.
You may also ask:
- What happens to my homestead if I go on Medicaid in Florida?
- My elder is on Medicaid - can we sell the homestead property?
If you want to learn more about asset protection in Florida, download a free copy of my book, Don't Lose Your Nest Egg to a Florida Nursing Home. This book will explain ways to protect your assets and pay for your long-term care, among other important aspects.
What happens to my home if I go on Medicaid?
The rules for Medicaid and homestead in Florida have different rules depending on if you are single or married.
If you are married, the spouse can live there and there are no potential problems or hitches for the homestead property. There is not asset limit here and the cost of the home may help the community spouse keep more income. We may be concerned if the spouse at home - the community spouse - were to predecease the Medicaid recipient, but that is another issue.
If the Medicaid applicant is single and needs Medicaid in the nursing home or assisted living facility, the applicant is allowed to own a home of up to $572,000 in value (2018). Even if the applicant never returns to the home, the homestead is protected and will never be made a countable asset for Medicaid purposes (unless rented!). Upon the applicant's death, the homestead is protected from creditors, including the state of Florida, if it descends to your heirs at law. We have more on Medicaid estate recovery here. Problems occur though because all of your income goes to the nursing home as part of your patient's responsibility. This means that your family will have to pay for the home's mortgage, upkeep, insurance, taxes, etc., as your assets have been depleted and your income goes to the nursing home! Renting the home is possible but this removes the homestead protection, so that can be an issue as well.
If you want to learn more, please read our Free Guide to Protecting Your Florida Homestead.
Also, we have more on selling your homestead in the event you are in the nursing home.
If my spouse is in on Medicaid, how much of my income can I keep?
If your spouse is in the nursing home on Medicaid (the "institutionalized spouse"), you are allowed to keep ALL of your income. Medicaid allows the spouse at home (the "community spouse") to keep all of their income.
The next question is what income can the community spouse keep of the institutionalized spouse? The big picture is that the community spouse can divert up to $2,030/month (2018) from the institutionalized spouse's income with a maximum amount diverted up to $3,020.50/month. The amount diverted depents upon the community spouse's own income and the amount of housing costs the community spouse has.
When your spouse is in the nursing home, it can be a very stressful time. Find our more about the Florida Medicaid and Spousal Diversion on this webpage.
If you are reading this, you may want to read:
What is the difference between Medicare and Medicaid?
When you or your loved one has gone to the nursing home for rehab, which frequently occurs after a three day hospital stay, the family has to learn the difference between Medicare and Medicaid!
Simply put, Medicare is a form of health insurance for those over age 65 and the disabled. Medicare pays for someone's doctors, hospital stay, medical supplies, etc. No health insurance is long-term care insurance and Medicare is no exception. Medicare can pay for up to 100 days of rehabilitation in a skilled nursing facility after the patient had a three-day qualifying stay in the hospital. The point of the rehab is to get the patient stronger through therapy. When the patient is no longer getting stronger, Medicare will typically end. Medicare completely covers days 1-20 while co-pays of $167.50 (2018) are for days 21-100. If the patient has a Medicare supplement (i.e., a Medigap policy), the policy may pay for the co-pays during the patient's stay. Most people who work during their lifetimes will get Medicare.
If the elder has to stay in the nursing home after Medicare ends, the patient may need to apply for Medicaid. Medicaid is the government program that helps the indigent pay for their care in a long-term care facility, such as the nursing home or assisted living facility. In order to qualify for Medicaid, the applicant must pass a strict test looking at the applicant's income and assets. We have the 2018 Medicaid income and asset numbers for Florida here. When the elder is in a nursing home, now may be the time to protect assets for his or her care, which is done through a good elder law attorney.
If your loved one just entered the nursing home, or may not be safe at home, you may also want to read:
- Questions to ask when your elder just entered the nursing home
- Will my loved one get good care on Medicaid?
Finally, we have a free book that may be be able to help. Please download Protect Your Nest Egg from a Florida Nursing Home today.
My Elder is receiving VA Benefits - can we sell or rent the homestead?
If your elder is receiving VA pension benefits, which typically means Aid and Attendance, he or she is allowed to own a home as a non-countable asset. A problem may occur if the elder is not living and home and the family wants to sell or rent it. Selling or renting the home will most likely stop the VA pension benefits as you would be converting a non-countable asset into a countable asset. The VA cross-references with the IRS and they will find out about the home sale, so you should do something to help.
It is likely that the best solution to selling or renting the home when an elder is on VA benefits is to place the property into an irrevocable trust. This trust has a lot of potentially positive benefits in the right situation, such as:
- Avoiding probate upon the elder's death;
- Allowing the property to be sold tax free (if it has appreciated less than $250,000);
- Allowing rental or the property while the elder is in a nursing home/assisted living;
- Allowing a step-up in basis upon the elder's death so heirs can sell it tax free;
- Starting the Medicaid five year "look-back" period;
- And more . . .
If your elder is looking to apply for VA benefits, or if you just want to consider protecting the homestead property from the nursing home, please fee free to download a copy of my free report on protecting your Florida homestead property.
Can I receive damages for pain and suffering after a Florida car crash?
Under the state’s injury laws, Florida victims may be awarded payment for their medical bills as part of their economic losses. However, this isn't what is meant by “pain and suffering.”
Pain and suffering is the legal term for an additional amount of damages that are paid on top of medical and disability costs, and it's up to a jury to decide how much should be awarded in each case.
When Can Florida Victims Be Compensated for Pain and Suffering?
Florida has rules regarding who may and may not be awarded pain and suffering damages in an injury case. As Florida is a no-fault insurance state, drivers are required to file claims with their insurers to collect the costs of an accident, regardless of who caused the crash. If these claims aren't sufficient to cover the costs of injury, an accident victim may sue the at-fault driver or another negligent party whose actions led to the injury.
Under Florida law, victims who seek pain and suffering damages in car accident cases must meet the state’s “injury threshold.” Simply put, in Florida, if you have been in a car accident, you cannot sue for pain and suffering damages unless the crash has resulted in one or more of the following:
- Significant loss of ability to perform a necessary bodily function
- Permanent injury or a permanent aggravation of a pre-existing condition
- Significant and irreversible scarring or disfigurement
Types of Pain and Suffering Damages That Can Be Recovered After a Crash
Victims may be awarded two kinds of damages in car accident cases: economic damages and non-economic damages.
Economic losses are costs that can be totaled, such as medical bills and lost wages. Pain and suffering awards are a form of non-economic damages, and aren't easy to quantify. Depending on the degree and severity of the injury, the extent of medical treatment, and the impact of the accident on the victim’s life, non-economic damages may range from a few thousand to several million dollars.
Pain and suffering damages may be awarded to compensate a victim for:
- Physical suffering. This is meant to compensate a victim for the trauma at the time of the injury; the pain throughout the recovery process; and any discomfort he or she will suffer in the future.
- Mental anguish. Victims suffer a wide range of psychological effects after an accident. The stress of paying medical bills, the fear and embarrassment of living with physical restrictions, the anger of having to deal with a new problem every day, anxiety and depression throughout recovery, and lingering symptoms of post-traumatic stress disorder (PTSD), can all qualify as emotional pain and suffering.
- Other non-economic loss. Accident victims may sue for the injustice of the accident and inconvenience of having portions of their lives taken away. Common effects of a sudden and traumatic crash include disability, loss of fertility, loss of a family member, and lost enjoyment of life.
A jury has to consider many different factors to determine how much should be paid to an accident victim for his or her suffering. Two people injured in the same crash can be awarded vastly different amounts, depending on their personal circumstances.
For example, a victim who is retired to a wheelchair after the crash, may be awarded a significant sum, if he or she was very active before the accident. On the other hand, a victim who had suffered a pre-existing injury to the same part of the body, may see a reduced award, unless his or her attorney can prove that the damage from the accident played a significant role in her suffering.
We Help Minimize the Difficulties
At DeLoach, Hofstra & Cavonis, P.A., we can examine all of the details of your case to maximize the amount of your pain and suffering award. We'll carefully review the change in your activities, career path, medical treatments, family situation, and future prospects, securing the rightful compensation fo you, to put the accident behind you. And we don't collect any fees until your case is won.
Simply fill out the quick contact form on this page to set up your consultation.
Why use an attorney to change your estate planning documents?
You should use an attorney to change or amend your estate planning documents (last will and testament, power of attorney, revocable living trust) because you want to be able to rely upon these documents upon your death or incapacity.
First, you should go to an attorney to create your estate plan because only an experienced estate planning attorney can apply your specific situation to the facts. No on-line form can give you advice based upon your own situation. We generally think that estate planning is much more than just "document preparation." While some familial situations may be simple, we want to make sure the documentation, goals and assets all align, and an estate planning attorney is the best person to make this happen.
Next, changes to the documents must all be done with care and should be done with an attorney as well. Any changes to your documents must be made in the same way your original documents were created. This typically means witnessing and notarizing the changes, among other matters. You do not know what you do not know.
True Story: We created a last will and testament for a client who left money to his girlfriend. Before he died, he crossed his girlfriend off the will and initialed the change. When he died, the change he made had no legal effect - his ex-girlfriend inherited the money from the will.
Another True Story: I received a frantic phone call from a daughter. Her father just had a stroke. The father created a living trust through an on-line company only months before, but he did not even create a last will and testament, durable power of attorney or other incapacity documents. Dad died shortly after our conversation and we are probating his assets, among other matters, while dad could have just gone to see an attorney and saved his family a lot of grief, heartache and money with going to a good attorney for his estate plan.
This is the point - your life, your family, your wishes are all too important to leave to chance, so you should see an attorney to help make sure your wishes are followed. Estate planning is difficult enough as there are many things that can go wrong, but leaving things to chance and not seeking professional advice in order to save money just should not be a priority. Your end-of-life wishes, and your family, are just too important to take the cheap way out to avoid attorneys.
Want to learn more about creating a good estate plan?
Come to one of my free monthly seminars to learn more! Follow this link to learn more and register to attend our no-obligation seminar.
Download my Free Book!
Besides my free monthly seminar, I also wrote a book, the Top 20 Ways to Protect Your Florida Estate. Download your free copy today!
What do I have to prove to get compensation for a pedestrian accident in Florida?
It may seem relatively straightforward who is at fault in a pedestrian accident. The driver of a car travels much faster and is far less likely to be injured in a crash, so there's often no question in the victim’s mind that the driver of the car will be seen as responsible for the accident.
Unfortunately, these injury claims are rarely open-and-shut cases that offer quick compensation to pedestrians.
In order to get payment for medical bills and lost income, pedestrians are required to prove that someone else’s actions directly led to their injuries and losses.
What Injured Pedestrians Have to Prove to Recover Damages
In all injury cases, the victim is responsible for providing clear evidence of negligence. Negligence is a legal term that describes an action that a reasonable person in a similar situation wouldn't have done. If someone's negligence caused or contributed to an accident, he or she can be held liable for the costs.
The injury victim must prove four elements to legally establish negligence in a pedestrian crash case:
- The person at fault owed the victim a duty of care. This tenant of an injury case establishes that the negligent party was responsible for acting as safely as possible under the circumstances. If the person at fault is a driver, proof of this duty is contained in state traffic laws that require drivers to be capable and alert at all times.
- The person at fault breached the duty of care. Many actions that fail to uphold the duty of care constitutes negligence, such as driving distracted, speeding, ignoring traffic signs or signals, and driving while intoxicated.
- The at-fault party’s negligence caused the victim’s injuries. Negligence in itself isn't enough to win a claim. The breach of care must have directly led to the injuries the pedestrian suffered. For example, texting at the time of the crash may be a direct cause, but sending a text three minutes before the accident is likely not a cause of the crash.
- The victim suffered actual harm. Victims must provide evidence of the economic losses they suffered as a result of their injuries, such as financial hardship, increased medical bills, permanent disability, and other costs.
Who Should Be Held Liable for a Pedestrian’s Injuries?
The legal process for proving negligence can go a long way to determining who's at fault for the accident. In the majority of cases, pedestrians file injury claims against the driver of the car that struck them. However, there are many other parties who could have played a role in the accident, including:
- The local municipality. In some cases, a city government may share responsibility for a crash. Public entities may be liable for accidents involving poorly-placed crosswalks, malfunctioning traffic control devices, ineffective sidewalk or parking lot maintenance, and other safety hazards.
- A product manufacturer. You may be able to file a product liability claim if a malfunctioning device caused you to veer into the path of oncoming traffic, such as a scooter or skateboard.
- Insurance companies. Victims often rely on their insurance providers to pay for medical bills after a pedestrian accident. As Florida is a no-fault insurance state, the pedestrian may exhaust his or her policy and pursue a claim on the driver’s insurance policy. These claims are often met with resistance, and may require a lawsuit to get proper compensation.
- Another person or entity. A pedestrian usually doesn't have a right to enter the street outside of a crosswalk. If someone was struck because he or she couldn't use the crosswalk, the case may name additional parties that made safe sidewalk travel impossible. For example, you may take action against a driver or passing cyclist that forced you off the curb, a restaurant owner whose tables blocked the sidewalk and forced you to walk in the road, or a construction company that didn't reroute pedestrian traffic during road repairs.
- The pedestrian. Pedestrians who contribute in some way to their injuries may be assigned a portion of negligence. In Florida, victims can share negligence and still win the injury case, but their damages will be reduced by their percentage of blame for the crash.
If you're struggling after a pedestrian accident, we can help you get the justice and compensation you deserve—and we don't collect any fees until your case is won. Simply fill out the quick contact form on this page to set up your consultation with an attorney.
Are my out-of-state estate planning documents good in Florida?
If you just moved to Florida and have estate planning documents done in another state, the documents themselves may be valid, but you would want to have a Florida attorney review the documents to make sure.
Florida law says that if your estate planning document was valid in your original state, it will be valid in Florida. This is due to the full faith and credit clause of the United States Constitution. So your existing document is "valid", but will it be as "good" as it should be? Mileage will vary, but your out-of-state estate planning documents could likely be updated to make sure:
- Applicable Homestead laws are correct - these rules are very Florida specific
- Durable powers of attorney are very state specific, so it should likely be updated. If you became incapacitated, you would not want to rely upon an out-of-state power of attorney, under most circumstances
- Advance directives (your health care surrogate and living will) are fairly state specific, so they would likely need updating
- Revocable living trusts are generally interpreted according to their state of origin, so it would likely need to be changed to correspond with Florida law
One of the first things we think about is that most of the time, most of us procrastinate making changes to estate planning documents, so it is likely that your estate planning documents are old and need to be updated, regardless.
The point to all of this is that your documents are likely valid, but a good estate planning/elder law attorney should review them to make sure you and your family should rely upon them.
If you want to learn more about your Florida estate plan, you are welcome to download our free book on Florida estate planning.
If you live in the area, we invite you to attend one of our free monthly seminars on estate planning.
What Should You Do When Making a Hurricane Damage Claim Under Your Insurance Policy?
Document all the damage to your property with pictures and video. Preserve any items of personal property that have been damaged so they are available for inspection by the insurance adjuster. Don’t throw out the damaged property. Report the claim to your insurance company by phone and in writing. Keep a log of all your phone calls with your insurance company and save all your written communications (letters and emails). Keeping accurate records of your contacts with the insurance company will be very helpful if there is a dispute later.
What Should You do if Your Insurance Company Either Isn’t Responding or Has Made a Low Offer?
If you are not getting a response, give your insurance company a deadline, in writing, to respond. Tell them that if they do not respond by the deadline, you will hire an attorney. If they do respond and they give you a low offer, get additional estimates to repair or replace your property so you are prepared to support your damage claim. Never accept the first offer from your insurance company. You will get your best offer through negotiations.
How Can We Help?
Call us immediately if you are not satisfied with the response from your insurance company. We can discuss your options. We may be able to take your case on a contingency fee. This means that we would collect our fees and costs from your insurance company and you don’t have to pay them out of your pocket. We are here to help you, so don’t hesitate to call us.
What should I do if I was hit while walking and the driver took off?
Florida is one of the most beautiful places to walk and bike in the nation. While pedestrians can enjoy the health benefits of traveling without a vehicle year-round, they are also at particular risk of hit and run accidents. Thousands of people are struck and injured every year by drivers who speed away, leaving the victim to pay for his injury costs.
Steps to Take if You Were Hit by a Car While Walking in Florida
Any accident that involves a driver failing to stop after striking someone else can be considered a hit and run collision. Cars may collide with pedestrians, and also people traveling on scooters, bicycles, skateboards, or other modes of non-vehicular transport.
Unfortunately, Florida sidewalks are often built close to the roadway, placing pedestrians at risk of accidents when they are next to the road as well as in crosswalks.
If you or someone you love is struck by a car while walking, it's vital you do the following as soon as possible:
- Report the crime to the police. Florida law carries high penalties for offenders in hit and run injury cases. A driver who leaves the scene of an accident, and has caused an injury, may be charged with a felony, face jail time, heavy fines. The sooner the collision is reported, the better chance a police officer will tracking down the driver—improving the odds of getting compensation for your injuries.
- Get medical attention. Don’t take the risk of going home after the accident: go to the hospital immediately. Even at low speeds, a pedestrian accident can result in significant physical, financial, and emotional losses. Adults may suffer broken bones or head injuries that cause them to lose months away from work, while accidents involving children or the elderly may result in permanent disability or death.
- Speak with an accident lawyer. The best way for victims and their families to get compensation after these kinds of accidents is to speak with a personal injury attorney. In order to prove your case, you will need to gather evidence, give statements, and total your medical costs and financial losses accurately. We can examine the circumstances of the crash, tell you what to expect in your case, and work to protect your rights as you take the time you need to heal.
Ways to Pay for Medical Costs After a Pedestrian Accident
If the driver who struck you is never found, there are still many payment options available to you. Other ways to get compensation after a pedestrian accident in Florida include:
- The Crimes Compensation Trust Fund. This fund is paid to victims of crimes, or their survivors, who are struggling financially after an injury. In order to be eligible, victims must have reported the crime to police within 72 hours of the event. Individuals must also apply to the Florida Bureau of Victim Compensation within one year of the accident.
- Personal Injury Protection (PIP) coverage. Victims of pedestrian accidents may claim compensation from their auto insurance, even if they weren't driving at the time of the crash. While all Florida drivers are required to carry PIP insurance, the coverage usually only provides up to $10,000, which may not be enough to cover the costs of a pedestrian’s injuries.
- Uninsured motorist insurance. Drivers who have selected uninsured/underinsured motorist coverage as part of their auto policies can get additional compensation if they are struck while walking.
As the options for compensation in these cases will vary depending on the individual circumstances, it's a good idea to meet with an attorney after a hit and run pedestrian accident. Your lawyer can go through your various insurance policies to determine the best way to get maximum coverage for your injury costs.
Our law firm works on a contingency-fee basis, so we do not collect any fees until your case is won. Simply fill out the quick contact form on this page to set up your consultation with an attorney.
Does Florida Have a Small Estate Affidavit Process?
The general answer is no, or at least not in the way that is helpful to most families.
We usually get this question when someone dies without a beneficiary of a life insurance policy, IRA or 401K. When the family is trying to claim these funds upon the death of a loved one, the financial company may send a claim form with a statement about a "small estate affidavit" that would be necessary in order for the family to receive the assets. Unfortunately, Florida does not have a small estate affidavit process, with one exception, which means the family will more than likely need to consult a probate attorney to help gain control of the assets.
Florida does have a Disposition without Administration procedure, but this is generally used in very specific situations, typically where the decedent's funeral expenses are unpaid. Here, the family can go to the local probate court and file an Petition to release funds held in a bank (typically) so that the petitioner can be reimbursed for paying the decedent's funeral bill. An example of the Disposition without Administration is as follows:
Mom died with a bank account of $3,000 in her own, individual name. The bank will not give the family access to this bank account. The decedent's son paid for mom's funeral expenses of $4,000 out of his own pocket. With the proper petition to the court, the court will order the bank to pay the $3,000 to the son to reimburse him for paying the funeral bill. Here is Pinellas County's petition.
If the decedent had multiple assets and no one needs to be reimbursed for funeral expenses, then it is possible that the family can go through a Summary Administration. An attorney is likely helpful in this process due to the complexity - nothing is easy in the Florida probate process. The Summary Administration process is close to the small estate affidavit but it is not as easy as you would think. We frequently have families come to us for help after trying to do a Summary Administration without legal help.
To learn more about the difference between the disposition without administration/summary administration, I have written more on the types of Probate in Florida that would be helpful if you cannot get control of an assets upon someone's death. This may or may not mean you need to hire an attorney upon the death of your loved one.
If your loved one has passed and you are trying to access their assets, our free guide to Navigating the Florida Probate Process will be very helpful. This guide reviews the Florida probate process from start to finish.
If you asked this, you may want to know:
Does Florida Have a Minimum Amount Needed for Probate?
When someone dies in Florida, how do we know if probate will be necessary? The answer is if someone had an asset in their own, individual name. The size of the asset does not matter for Florida purposes, just the titling. So if the decedent dies with a bank account worth only $2,000 in their own name, the family/heirs will need some type of help from probate and the court system. Depending on the size of the estate, the probate process differs greatly. Florida generally has three probate processes to consider:
- Disposition without Administration: This process is available some very small estates and technically does not involve the probate process. It does, however, involve the Florida Court system. It is available for someone who is seeking to get reimbursed a funeral bill or for medical expenses within 60 days of death. Here is a link to the Disposition without Administration process in the Pinellas County Clerk of Court's website.
Example: Mom dies with $2,000 in a bank account in her own name. The bank will not let anyone access the funds and tells people they need to get "letters from the court." If someone paid for mom's funeral out of their own pocket, that person can go to the Clerk of Court where mom passed and get a court order directing the bank to pay them the $2,000.
- Summary Administration: This is a more simple probate process that is available only when: 1) the assets are worth less than $75,000; 2) all the heirs consent; 3) all bills are paid (a big issue with summary administrations; and 4) all of the decedent's assets are known. The family would still need to see an attorney for assistance but the process is generally cheaper and easier under most circumstances.
- Formal Probate Administration: This is the full probate process of appointing the personal representative, dealing with creditors, publishing in the newspaper, etc. This is done when assets exceed $75,000, the estate has debts, heirs do not agree, there are unknown assets, and more.
If your loved one has recently passed and your family is looking to probate an asset, please download our free guide on Navigating the Florida Probate Process to learn more.
What is a Health Care Proxy and how is it Different from a Health Care Surrogate?
A health care proxy is used in Florida when someone is incapacitated and has not created a designation of health care surrogate or the designated surrogate is unable or unwilling to act. The health care proxy statute provides the legal ability for the family and others to take over someone's health decisions if the incapacitated person is unable to make health care decisions themselves. When an estate planning attorney (like us) helps with incapacity planning, we always do the appropriate advance directives, which includes the living will and health care surrogate designation. If someone fails to correctly plan ahead for their incapacity, the Florida proxy law provides an orderly determination for who will make the incapacitated person's health care decisions.
The Florida Health Care Proxy statute provides the order of people who can make decisions for the incapacitated person as follows:
(a) The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability as defined in s. 393.063, who has been authorized to consent to medical treatment, if such guardian has previously been appointed; however, this paragraph shall not be construed to require such appointment before a treatment decision can be made under this subsection;
(b) The patient’s spouse;
(c) An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation;
(d) A parent of the patient;
(e) The adult sibling of the patient or, if the patient has more than one sibling, a majority of the adult siblings who are reasonably available for consultation;
(f) An adult relative of the patient who has exhibited special care and concern for the patient and who has maintained regular contact with the patient and who is familiar with the patient’s activities, health, and religious or moral beliefs; or
(g) A close friend of the patient.
Example: Mom has not done correct planning with her advance directives and she has a stroke and cannot make her own healthcare decisions. She is not married and has 3 children. Florida law provides that her three (3) children are her health care proxy, and that the majority decisions on mom's healthcare will rule.
The Florida Department of Children and Families (DCF) has a health care proxy acceptance affidavit, which can be very helpful for those seeking to help their loved one.
Of course, good estate and incapacity planning tries to avoid the health care proxy, among other matters, but if your loved one becomes incapacitated and a health care surrogate was not created, you can follow this statute and use the DCF affidavit (above) to help your family member.
What about financial decisions?
A health care proxy (or designation of healthcare surrogate) does not give the ability for the family to make financial decisions, which includes banking, bill paying, legal matters and more. If the person needing help is competent, then he or she should do a durable power of attorney with a good elder law attorney. If the person is incompetent and family member needs to assist them with bill paying, financial matters and other legal aspects, then a court ordered guardianship would be necessary.
If you want to learn more about estate planning in Florida, we are glad to send you a copy of my book, The Top 20 Ways to Protect Your Florida Estate.