Florida Estate Planning and Probate Law Blog focused on recent case law and planning ideas.


FLORIDA'S HEALTH CARE SURROGATE STATUTES: Effective October 1st, an individual may assign the power to a surrogate to make health care decisions for that person even if the person is not incapacitated. If there is ever a conflict between the surrogate and the principal, the principal's decision is controlling as long as the principal has capacity. A principal may also amend or revoke the durable health care surrogate as long as the principal is not incapacitated. A principal can do this through a variety of different ways including written amendments or written revocation. Physicians still must discuss treatment and other important information with a person who is not incapacitated regardless of whether or not there is a surrogate. Parents now have an option to name a health care surrogate for minors under 765.2035(6). This will be useful if a parent is unavailable to provide consent for treatment for their child. This could come up in a variety of situations, such as when the parents are traveling without their minor children.

FLORIDA UNIFORM TRANSFERS TO MINORS ACTEffective July 1, 2015, Florida allows custodianships to last until the age of 25. Florida statute 710.123 now allows for an age of 25 to be set as the termination date when the UTMA account is created. A Florida custodianship can be created if the custodian, minor, or transferor lives in Florida or if the property protected by the custodian is in Florida.  Florida Statute 710.123(2) was added, which grants minor beneficiaries of UTMAs with a termination age of 25 the ability to withdraw the funds at 21. However, there is also the ability to limit the right to withdraw to a certain duration so that if the beneficiary does not use their right within the specified time, then the assets cannot be withdrawn until the age of 25 when the UTMA terminates. This time period is generally 30 days.

FLORIDA GUARDIANSHIP LAW: Under prior law, durable powers of attorney were suspended when anyone initiated judicial proceedings to determine incapacity of an individual or to have a guardian advocate appointed. This suspension lasted until the petition was dismissed or withdrawn. The new law provides that certain family members (child, parent, spouse, or grandchild) will no longer be automatically removed from being agents upon the incapacity of the principal, and the powers provided in the document will continue. The new statute also has a process to suspend a power of attorney that is held by a family member in case that family member is abusing their power.