Law change could affect your legal documents
People think that a document such as a power of attorney would be good forever but that isn’t the case...
WIMAUMA — Some residents of Valencia Lakes were shocked to hear that documents they thought were set in stone might not hold up in court because of changes being made to the law.
“People think that a document such as a power of attorney would be good forever but that isn’t the case,” attorney Amanda Wolf told a group of about 80 March 14.
Wolf was the speaker at the monthly meeting of the Valencia Lakes Community Club.
“At first I was going to ask her to speak to our Woman’s Club but when I heard about the law change I knew it was something the whole community needed to hear,” said Kay Laughlin, who booked the event.
While other issues, including probate, estate planning, wills and trusts were briefly discussed, the meat of Wolf’s talk concerned a new law being drafted by the American Bar Association.
Because each state and territory under federal jurisdiction has its own rules for bar admission – which gives permission to practice law in that state– there are many differences among the states, and in some cases, documents written in one place are not recognized in another.
How this works is explained on the American Bar Association’s Web site, www.americanbar.org and the site of each particular state, but basically, the American Bar is changing requirements so that all states will be more uniform.
This has come about because of confusion in interpretation, Wolf explained.
When powers of attorney are granted a certain specified person is named to act as representative for someone else should they become unable to act (or think) for themselves.
“What’s happened is that financial institutions don’t want to be responsible for determining whether people are capable of making their own decisions,” Wolf said.
If the new law goes into effect as it is being drafted, when documents are in question a court would send out three mental health professionals and then a judge would declare a guardian.
“Portions of the POAs already in existence won’t stand up in court under the new law that’s being drafted now,” Wolf said.
Some people in the audience said this was probably being done to drive more business to lawyers but Wolf stated that uniformity would make things easier for everyone in the long run, especially in cases where someone has moved from one state to another.
“Many people in Florida who had their documents drawn somewhere else have found they’re no good just when they need them most,” she added.
Even if the new law wasn’t being drawn up, Wolf said a power of attorney (and other important documents) should be closely examined at least every five years because of changing situations in life.
She explained that certain powers must be expressly granted on the power of attorney form, especially things like changing beneficiaries on a life insurance policy or making a financial gift.
Families change; relationships change; and situations change; and each change could mean something important to the existing document. Grown children’s marriages, divorces and the birth of grandchildren were named as other times all documents should be reviewed.
“I’ve seen cases where courts tried to rely on 20-year-old powers of attorney where the people named in documents were no longer even alive,” she explained. “It isn’t about lawyers wanting to make more money.”
One thing she advised was that husbands and wives not be each other’s power of attorney unless alternate powers of attorney are also named.
“We see situations like this all the time. Maybe Dad is dying and Mom has dementia and the children can’t decide who should make the decisions,” she asked.
End of life issues must also be reviewed as situations change.
“Everybody needs to plan ahead not just to make life easier for those who have to carry out their decisions, but for themselves. Nobody wants to be in a situation where someone else makes a decision for them that they would never have made for themselves.”
Wolf also talked about the lack of funding in Florida for programs that help older people stay in their homes.
While it would be cheaper in the long run to have services for people who need them than house them in nursing homes and assisted living facilities, the programs in force are not set up that way.
“Sometimes family members place other family members in nursing homes because the Medicaid system will pay for that while they can’t get services for daily living- like bathing or cooking- at home.”
To be eligible for any elder programs, some states look at income and others look at assets but Florida looks at both. She advises not waiting until someone is sick or otherwise incapacitated to look into requirements for programs like Medicaid.
“Everybody needs a nice good plan ahead of the time they will need to use it,” she said.
Wolf currently works out of Pinellas county but is taking appointments and will be setting up a satellite office in South County because many of her clients come from the area.
To find out more about her visit www.WolfElderLaw.com or call (813) 350-7991.