Elder Law at FRLS

If you are found unable to make decisions, Florida law offers several options. Courts will always look for the least restrictive alternative.

From most least to most restrictive, the options are:

• Supported Decision-making
• Banking Services
• Power of Attorney
• Representative Payee
• Advance Directives
• Healthcare Proxy
• Trust
• Guardianship

If you need help deciding which is the best least restrictive option for you or your loved ones, please visit: Turning18.org

Supported decision-making agreements authorize designated parties to help a person with disabilities NOT to make decision for them.

For sample agreements visit: supporteddecisionmaking.org

There are various forms in which you can get help to manage your bank account:

• You can assign someone the power to acton your behalf over matters relating to the bank account.
• You can create a joint account with two or more people.
• You can establish a direct deposit system.

You can establish a Power of Attorney to authorize another adult to act on your behalf over general or specific matters.

A Durable Power of Attorney provides specifically that the authority of your chosen agent will continue even after you become incapable of making decisions.

Any adult with the capacity to give informed consent can execute a Durable Power of Attorney.

If you’re incapable of managing your own money, the Social Security Administration (SSA) allows you to designate a person or organization as your representative payee. The representative payee receives your monthly payment of benefits and
is responsible to the Agency over how the money is spent for your benefit.

An advance directive allows you to state your choices about healthcare or to name someone to make those choices for you, if you become unable to make decisions about your medical treatment.

A Do Not Resuscitate Order (DNRO) is a form of advance directive.

A healthcare proxy is used when someone is incapacitated and has not designated a healthcare surrogate, or the surrogate is unable or unwilling to act.

The healthcare proxy statute provides the order of people who can make decisions for the incapacitated person who is unable to make healthcare decisions themselves. The general order is court-appointed guardian, family members and
then friends. Fla.Stat. s. 765.401

A trust is a legal agreement that directs the trustee to manage the deposited assets for your benefit in your lifetime, and then to distribute them to the people you name as beneficiaries after you die.

In some trusts, you continue to use the assets in the trust while you are alive as if you still owned them.

Guardianship is the most restrictive option for those people that need help in making decisions. It requires two acts from the court:
1. A decision regarding the capacity of the ward to make decisions; and
2. The transfer of all or some of your rights to the guardian.

Types of guardianship:

• Guardian Advocacy - In a guardian advocacy case, the petitioner is not required to demonstrate the ward’s capacity. The court will transfer all the necessary rights for the care of the person or property of the ward. This is the least restrictive and least costly alternative for people with developmental disabilities.
  
• Voluntary Guardianship - Voluntary guardianship is recommended to people unable to manage their properties but otherwise mentally competent. The court will designate a guardian to manage these matters exclusively. At any moment, the ward can terminate the guardianship by going to court.

• Emergency Temporary Guardianship - If you are in imminent danger and your ability to make decisions is questioned in a court of law, a judge can designate a temporary guardian. This kind of guardianship expires if the court does not designate a permanent guardian.

• Limited Guardianship - If a court finds that you are incapable of making decisions in specific areas, a judge can designate a guardian to help you in these specific areas only.

• Plenary Guardianship - If a court finds that you are incapable of making decisions, a judge can designate
  a guardian and transfer all your personal and property rights to that guardian.

A will is a written direction controlling the disposition of property at death. Or used to name a guardian of their minor child.

Florida has several requirements for a will to be valid including:

• You, the maker of the will (called the testator), must be at least 18 years old.
• You must be of sound mind at the time you sign your will.
• Your will must be in writing.
• The two witnesses must sign the will in the presence of the testator and in the presence of each other.

No will becomes final until the death of the testator, and it may be changed or added to by the testator by drawing a new will or by a “codicil”, or written addition.

Federal law and Florida Civil Rights Acts, makes it unlawful for an employer to discriminate based on age. The law also prohibits discrimination against housing based on disability for senior citizens.

Victims of employment age discrimination are often ridiculed about their productivity, competence, and commitment to the job. Employers often target older employees for unfavorable treatment or termination because of their length of employment, amount of compensation, or retirement eligibility.

If you believe you are facing age discrimination, contact Florida Rural Legal Services for help.

Long-term care refers to insurance, programs, and services geared toward helping older adults with the basic activities of daily living. In Florida, Medicaid provides long-term nursing home care for those who are eligible. Eligibility is based on the assets and income of the Medicaid applicant, as well as the assets and income of the Medicaid applicant’s spouse.