Legal Developments

Revised DHC Surrogate Law

Chapter 765 of the Florida Statutes has been revised, with important sections effective October 1, 2015. The two main improvements were the ability to make a Designation of Health Care Surrogate immediately effective, and the creation of a specific Designation of Health Care Surrogate for a Minor.

https://www.flsenate.gov/Session/Bill/2015/1224/Analyses/2015s1224.rc.PDF

Updated Product Features

Designation of Health Care Surrogate Revised

The Designation of Health Care Surrogate form has been revised to allow it to be effective immediately (per §765.202(6)) rather than only after a determination of the principal’s incapacity. Because of the concerns expressed by the legislature, the form has been rewritten to include “suggested” language (both long and short forms), and the long form has been expanded to include expressed duties for the surrogate and statutory definitions. New Question 1217

New Health Care Surrogate for Minor Added and Medical Power of Attorney for Minor Child Revised

A new Designation of Health Care Surrogate for Minor form has been added pursuant to the authority created in §765.2035. New Questions 1333-1354

In addition, the Medical Power of Attorney for Minor Child has been renamed as Power of Attorney for Care of Children and revised to exclude medical issues (now covered by statute), while retaining other desirable powers for temporary custodians that are arguably permitted.

A new “Authorization forms for minors” choice replaces the “Medical Power of Attorney for Minor Child” choice on the DPA documents menu and a new question includes options for both forms discussed above for dealing with minors. Question 8 and New Question 13

New Simple Joint Trust Option Added and Trust Menus Revised

In response to customer requests, a new simple joint trust option has been added. A new simple joint trust template file “Trust_7.xmp” was created to expedite drafting. In addition, the Question 3 “trusts” menu was simplified and new sub-menu questions were added for the revocable, joint revocable and irrevocable trusts. Question 3 and New Questions 4-6

Revisions to enhance administration

Based on presentations at this year’s Heckerling Institute, we made several changes to add flexibility in the administration of trusts. For example, the person who has the current right to appoint (and/or remove) trustees may wish to be able to change his or her successor who has that power, or may wish to get information from the trustee so as to be able to exercise the power effectively; the Grantor(s) of an irrevocable might want to have information about the trust that the trustee may be reluctant to give because of fiduciary obligations to the beneficiaries; some definitions have been expanded (including an interesting addition to “disability” to cover incarceration); and the world’s shortest ART provision was added to the definition of descendants. New Question 852

New Form allowing Trustees to delegate powers to non-trustees

Adds an option for the trustees to appoint a person other than a trustee as an agent. Combined with existing form to allow delegation among trustees in a new menu item. New Questions 17, 1459-1461

REPEAT Questions Added for Alternate Guardian for Will and Declaration Preneed Guardian

New REPEAT questions were added to replace the single text fill in questions for the alternate guardian of both person and property. New Questions 915-922, 1228-1231 and 1234-1237

Expanded Custom Provision Questions for Wills and Trusts

In response to customer requests, we have replaced the single ‘Add Custom Provision’ question at the end of each major section in the Navigator for wills and trust documents with a REPEAT question. This allows the user to add more than one provision at the end of an article and provides greater flexibility when drafting documents and creating templates.

In addition, we have added three new custom questions at the end of the Substance Abuse, Qualified Plan Proceeds and Administration and Construction articles.

As before, you have the option of adding custom text either with or without a section heading. If you wish to create a template from your client answer file, the custom text will automatically become part of that template.

Important: This is a major program upgrade. Because the new REPEAT custom questions are structured differently than the old ones, any custom provisions in your templates will not appear if you open the template with this update. You will need to re-copy any custom text into your templates and then re-save the template.

For more information on creating templates see Creating Templates for Estate-Planning Products in the Using Templates topic by selecting HELP from the Lawgic menu. In addition, you may attend one of our monthly template Webinars. Click here for more information and registration.

New Questions 157, 183, 202, 218, 227, 237, 255, 259, 384, 456, 489, 553, 611, 658, 676, 710, 877, 900, 937, 1012, 1029, 1045, 1075, 1104

Removal of Equalization of Estates

The article equalizing the estates of spouses dying within six months of one another has been removed from the program. The usefulness of this provision has decreased in recent years with the compression of the federal estate tax brackets and the introduction of DSUEA portability between spouses. The inadvertent inclusion can cause unwanted problems such as unnecessary delay in funding and a shifting from the Marital gift to the Nonmarital beneficiaries.

Increased Federal Tax Exemptions and other tax numbers are current for 2015; these sometimes appear in the Law & Strategy and the document synopsis

Applicable Exclusion Amount: $5,430,000 (from $5,340,000)

GST Exemption Amount: $5,430,000 (from $5,340,000)

Gift Tax Annual Exclusion Amount: $14,000 (no change from 2014)

The adjusted amounts for 2016—an increase in the estate tax and GST tax exemptions to $5,450,000—will be reflected in the program when it is used in 2016.

Cleanup of some ambiguous wording and removal of potentially inconsistent provisions

Minor changes were made, inter alia, to the fiduciary powers article, the portability article, and the tax apportionment article. These are more in the nature of clarification, and were in response to issues raised by practitioners; while we are comfortable the former text was correct, it is always helpful to reduce opportunities for arguments that might twist the meaning.

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To view those questions that are new in this update, or where Law & Strategy, choices, or default answers have changed, use the "Up_Oct15" flag file. From inside Lawgic, open any existing answer file; on the Flags menu, click Open Flags, select the appropriate Title (click OK), and next select the "Up_ Oct15" flag file (and click OK). To view all flagged questions, click Expand All on the Answers menu and scroll the Navigator. Flagged questions will be indicated with blue bold text.

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