Do you want to have control over what happens to your own healthcare? If so, it is imperative that a Florida resident develop a plan for incapacity. As can be expected, there may come a time when individual Florida residents may not be in a position, either temporarily or permanently, to make their own medical decisions. In fact, the Centers for Disease Control and Prevention (CDC) reports that approximately 1 in 4 people will be incapacitated at some point during their lifetime. A Florida Living Will or Advance Directive is necessary. This guide provides a brief and general overview of making your healthcare wishes known.

What is a Living Will?

A Living Will in Florida is a legal document that allows an individual to state their wishes regarding medical treatment or care, especially life-sustaining procedures, in the event they become unable to make their own decisions. In other words, a Living Will clarifies how you want your healthcare to be handled in the event of incapacity. Most often, a Living Will addresses decisions about life-sustaining treatments and end-of-life care. However, the document may address a wide range of other healthcare matters as well. By clearly and unambiguously stating your choices in advance (when you are of sound mind), a Living Will can not only assure or safeguard that your wishes are followed, but it can also reduce the stress and strain placed on loved ones.

How to Create a Living Will in Florida

Creating a Living Will in Florida involves several essential steps to ensure it is legally valid and accurately reflects your medical care preferences.

1. Know the Law: In Florida, a Living Will must be in writing, signed, and witnessed by two people. At least one witness cannot be your spouse or a blood relative.
2. Speak to Your Doctors: Consult with your physician to discuss medical scenarios and treatment options to help you make informed decisions.
3. Clarify Your Preferences: Decide on your wishes regarding medical care, including life-support measures, artificial nutrition and hydration, and organ donation.
4. Get a Lawyer to Draft the Living Will: Once you decide on your preferences, an experienced Florida estate planning attorney can and should properly draft a Living Will to ensure clarity and legal compliance.

What Should You Address in a Living Will?

A well-prepared Living Will outlines specific medical issues and personal preferences regarding treatment. Consider addressing the following provisions:

• Life-Sustaining Treatment: Specify whether you want treatments like mechanical ventilation, dialysis, or other measures that prolong life in the event of terminal illness or permanent unconsciousness.
• Resuscitation Preference: Indicate if you want cardiopulmonary resuscitation (CPR) performed if your heart stops beating or if you prefer a “Do Not Resuscitate” (DNR) order.
• Pain Management: Outline your preferences for pain relief, including the use of strong medications such as opioids, even if they may hasten the natural process of dying.
• Nutrition and Hydration: Clarify your wishes regarding artificial feeding and hydration through feeding tubes or IV lines if you cannot eat or drink on your own.
• Organ and Tissue Donation: State your choices regarding organ and tissue donation, including any restrictions you wish to impose.

All Medical Needs Cannot Be Anticipated: Consider a Healthcare Proxy or Surrogate

A Living Will is an essential estate planning document, but it cannot address every possible medical scenario. Advances in medical treatments, unexpected emergencies, or unique medical conditions may arise, requiring flexibility in decision-making.

A Healthcare Proxy or Surrogate (or medical power of attorney) is the solution. This designated individual is authorized to make healthcare decisions on your behalf if you become unable to do so. Unlike a Living Will, a Healthcare Proxy can adapt to changing circumstances and provide input based on the latest medical advice and your known values. Importantly, a Healthcare Proxy cannot override your Living Will but can make decisions where your written instructions are unclear or incomplete.

How Estate Planning Lawyers Can Help You with Healthcare Planning

Estate planning is beyond asset distribution; it also includes essential healthcare planning. Setting up a Living Will ensures that your medical care aligns with your wishes and relieves your loved ones of difficult decision-making burdens. If you need assistance in drafting a Living Will or designating a Healthcare Proxy or Surrogate, consult with an experienced estate planning attorney to ensure that your preferences are legally documented and enforceable.

The foregoing is a brief and general overview of the topic and the need for specific and experienced legal and tax advice is emphasized.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

Long-term care costs are extremely expensive. According to the latest data from the Florida Health Care Association (FHCA), the median cost of a private room in a nursing home has now increased to six figures. As Medicare provides little long-term care coverage, it is imperative that Florida seniors utilize the right Medicaid planning strategy to protect their assets. The following are a few key factors to consider when determining one’s asset protection through proactive Medicaid planning.

Medicaid Covers Long-Term Care, Not Medicare (Why it Matters)

Knowing how expensive long-term care costs can be, each elder resident may have an important question: Can a senior citizen in Florida access public benefits to help cover long-term care costs? The answer is yes—but only when certain financial requirements are met. Here is the major issue:

• Medicaid, not Medicare, covers most long-term care expenses in the United States.

Understanding the distinction between Medicare and Medicaid is crucial for senior citizens who are trying to make viable financial plans for their future long-term care needs.

• Medicare, a federal health insurance program, primarily covers hospital stays, doctor visits, and short-term rehabilitation services. This program does not cover long-term care in nursing homes or assisted living facilities.
• Medicaid provides long-term care coverage. However, qualifying for Medicaid is not automatic. For many seniors in Florida, Medicaid eligibility is by no means straightforward. The Medicaid program has both strict income limits and strict asset limits.

Without proper planning, seniors in Florida may be exposed to the high costs of long-term care, which can quickly deplete their savings.

What You Need to Know About the Medicaid Spend Down Requirement

The Medicaid spend-down requirement is one of the most important concepts that senior citizens in Florida need to be aware of. If your income or assets exceed Medicaid’s eligibility limits, the senior will be required to “spend down” their excess assets to qualify for Medicaid benefits. However, Medicaid has strict guidelines on acceptable expenditures.

• The senior can spend down assets by paying off debts, making home improvements for medical needs, purchasing exempt assets, or prepaying funeral expenses.
• The senior cannot simply gift money to loved ones to meet Medicaid requirements. Any remaining assets above the limit will be used to pay for long-term care before Medicaid steps in. Further, income may be imputed to the senior on improperly made gifts, among others.

How Proactive Medicaid Planning Can Protect a Senior Citizen’s Assets

As stressful and confusing as it can be for seniors and their families to navigate long-term care, proactive planning can help protect assets. A top-tier Florida estate planning attorney who has experience in Medicaid planning can help determine the best course of action. It is recommended by many experienced attorneys to start Medicaid planning at least five years in advance. Strategies include:

• Home Equity Protection/Exemption: Medicaid allows a senior to protect or exempt up to $713,000 of home equity in 2024 & $730,000 in 2025. Paying off a mortgage or making qualifying home improvements can help.
• Early Gifting (Five-Year Lookback): Transferring assets to family members or a trust more than five years before applying for Medicaid can help protect wealth.
• Medicaid Trusts (Five-Year Lookback): An irrevocable trust shields assets from Medicaid eligibility calculations, but the same five-year lookback rule applies.
• Medicaid-Compliant Annuities: These convert liquid assets into an income stream, making them non-countable assets for Medicaid eligibility.
• Personal Care or Services Agreements: A formal agreement where a senior pays a family member for caregiving services can justify asset transfers under Medicaid rules.

Why Trust Florida Estate Planning and Elder Law Attorneys?

Medicaid planning is exceptionally complicated. If you have questions about your options or need guidance, an experienced estate planning and elder law attorney can help you navigate the process.

The foregoing is a very brief and very general overview of the topic and the need for specific and experienced legal and tax advice is emphasized.

If you have any additional questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

Florida Statutes § 709.2202 outlines specific powers under a Power of Attorney (POA) that require the Principal’s separate signed or initialed authorization before an Agent can exercise them. This ensures that the Principal explicitly consents to granting significant financial or estate-related powers to the Agent. The Principal is the person who creates the Power of Attorney and delegates their authority to another person. The Agent is the person who is granted the power to act on behalf of the Principal.

Key Takeaways from § 709.2202 in Florida:

1. Explicit Consent Required – The Principal must sign or initial next to each power listed in § 709.2202 for the Agent to have that authority.
2. Critical Financial & Estate Actions – These include:
   • Creating, modifying, or revoking a trust.
   • Making gifts on behalf of the Principal.
   • Changing rights of survivorship or beneficiary designations.
   • Waiving survivor benefits (e.g., retirement plans).
   • Disclaiming inheritances or assets.
3. Restrictions on Non-Family Agents – If the Agent is not a spouse, ancestor, or descendant, they cannot use these powers to benefit themselves or those they support.
4. Notary Assistance for Physically Incapacitated Principals – If a Principal cannot physically sign, a notary public can sign on their behalf with specific legal safeguards.
5. Does Not Apply to Pre-2011 POAs – This statute does not affect POAs executed before October 1, 2011.

Why This Matters for POA Holders in Florida

This statute prevents abuse by ensuring that major financial and estate decisions are not left to a general POA but instead require clear and deliberate consent from the Principal. If a POA document does not meet these requirements, certain actions, such as gifting assets or changing beneficiaries, may be legally invalid.

The foregoing is a very brief and very general overview of the topic and the need for specific and experienced legal and tax advice is emphasized.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

What Is Fiduciary Duty?
Fiduciary duty refers to the legal and ethical obligation of one party (the fiduciary) to act in the best interests of another party (the beneficiary or principal). In Florida, fiduciary duty applies in various contexts, including trusts, estates, guardianships, powers of attorney, business relationships, and financial management.

Key Fiduciary Relationships in Florida
Fiduciary relationships exist in several legal and financial contexts, including:

• ✅ Trustee & Beneficiary – A Trustee managing assets on behalf of a beneficiary owes a duty of loyalty, prudence, and care to act solely in the beneficiary’s interest.
• ✅ Guardian & Ward – A legal Guardian appointed by the court to care for a minor or incapacitated adult must make decisions in their best interest, including financial, medical, and personal matters.
• ✅ Personal Representative (Executor) & Heirs – A Personal Representative managing an estate must act with integrity and follow Florida probate laws when distributing assets.
• ✅ Agent Under a Power of Attorney (POA) & Principal – A POA Agent has a fiduciary duty to manage the principal’s financial or healthcare matters responsibly and avoid conflicts of interest.
• ✅ Corporate Officers & Shareholders – Officers and Directors of Florida corporations owe fiduciary duties of care and loyalty to the company and its shareholders.
• ✅ Financial Advisors & Clients – Investment advisors and brokers must act in their clients’ best interests and avoid self-dealing.

Types of Fiduciary Duties in Florida
Fiduciaries in Florida must adhere to specific legal and ethical standards:

• Duty of Care – Fiduciaries must act with competence and diligence, making well-informed decisions that protect the beneficiary’s interests.
• Duty of Loyalty – Fiduciaries must act solely in the beneficiary’s interest and avoid conflicts of interest that could result in personal gain.
• Duty of Good Faith – Fiduciaries must act honestly and fairly in all matters relating to the beneficiary or principal.
• Duty of Confidentiality – Fiduciaries must protect private, confidential, and/or sensitive information and not use it for personal advantage.
• Duty to Disclose – Any potential conflicts of interest must be disclosed to ensure transparency and trust.
• Duty of Prudence – Fiduciaries must exercise caution and sound judgment when managing assets or making financial decisions.

Breach of Fiduciary Duty in Florida
A breach of fiduciary duty occurs when a fiduciary fails to act in the best interests of the beneficiary or principal, resulting in harm. Common breaches include:

• Self-Dealing – Engaging in transactions that benefit the fiduciary rather than the beneficiary or principal.
• Mismanagement of Assets – Failing to prudently invest or protect assets.
• Failure to Disclose Conflicts – Hiding conflicts of interest that affect decision-making.
• Negligence – Failing to fulfill responsibilities with due care.

Victims of fiduciary breaches may pursue legal action to recover damages, seek removal of the fiduciary, or request an accounting of the fiduciary’s actions.

Legal Consequences of a Fiduciary Breach in Florida
If a fiduciary breaches their duty, the consequences may include:

• Monetary Damages – Compensation for financial losses caused by the breach.
• Removal of the Fiduciary – Courts may remove Trustees, Guardians, Agents, or Personal Representatives/executors found guilty of misconduct.
• Legal Penalties – Criminal charges may apply in cases involving fraud, embezzlement, or willful misconduct.
• Professional Disciplinary Actions – Attorneys, financial advisors, and corporate officers may face disciplinary measures, including license revocation.

How to Protect Yourself in a Fiduciary Relationship
Maintain Transparency – Keep detailed records and provide regular updates to beneficiaries.
Avoid Conflicts of Interest – Seek legal advice before engaging in transactions that could pose a conflict.
Follow Florida Laws – Comply with all legal requirements related to estate planning, trusts, and corporate governance, among others.
Seek Legal Guidance – If uncertain about fiduciary responsibilities, consult an attorney specializing in Florida fiduciary law.

By understanding fiduciary duty in Florida, both fiduciaries and beneficiaries or principals can ensure transparency, accountability, and compliance with the law.

The foregoing is a brief and very general overview of the topic and the need for specific and experienced legal and tax advice is emphasized.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

Ensuring the safety and well-being of your children is a top priority as a parent. While you put significant effort into their care and upbringing, unforeseen circumstances such as an extended trip, sudden illness, or legal matters may separate you from your children for an extended period. Proper legal preparation can ensure your children are well cared for in your absence. This guide outlines key legal documents that authorize others to care for your children, giving you peace of mind.

Key Legal Documents for Childcare

By preparing for worst-case scenarios, you can have the necessary legal documents in place to ensure someone you trust can make decisions on your children’s behalf. Below are essential documents for childcare planning:

• Childcare Authorization Form – This document allows a trusted individual to temporarily care for or make decisions regarding your children. It can include permissions for activities such as picking up your child from school, seeking medical care, and more.
• Medical Treatment Authorization for a Minor Form – In case of a medical emergency, this form grants a caregiver the authority to seek and approve medical treatment for your child.
• Childcare Instructions – Detailed instructions help caregivers provide consistent care, including:
  • Daily schedules and routines.
  • Meal preferences, allergies, and dietary restrictions.
  • Emergency contacts, including doctors, relatives, and neighbors.
  • Copies of key documents such as insurance cards, birth certificates, and immunization records.

Organizing these documents into an easy-to-reference binder ensures smooth transitions for caregivers, whether your absence is planned or unexpected.

Planning for Long-Term Guardianship

Short-term authorizations may not be enough if an extended separation occurs due to unforeseen events such as hospitalization, detention, or death. Consider these additional legal measures:

• Power of Attorney for Child – This document grants a trusted individual temporary parental authority, typically for up to six months or a year. In Florida, this can be Durable, allowing authority for more than a year if necessary, and remains valid even if the parent becomes incapacitated, enabling the designated caregiver to make major decisions on behalf of your child.
• Last Will and Testament – Designating a guardian for your children in your Last Will ensures they are cared for by a trusted individual in the event of your passing. Without a legal guardian named, the court may decide on your child’s care.
• Declaration of Preneed Guardian for Minor – In Florida, parents can use this document to predesignate a guardian for their minor child in case they become incapacitated or pass away. This helps ensure that the court honors the parent’s wishes regarding who should take over their child’s care.

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