LibGuides: Florida Estate Planning by Leesha Newkirk-Crouch: Law Review Articles

Wills and Trusts

34 Nova L. Rev. 1

REVOCABLE TRUSTS UNDER THE FLORIDA TRUST CODE

"Revocable trusts are a special type of inter vivos trust under Florida law that can be used effectively for some clients and some assets. This article explores revocable trusts under the Florida Trust Code, considering the important provisions and elements of a trust in general and of revocable trusts in particular. This article compares the provisions of Florida law and the Uniform Trust Code, as well as legislative history, and raises questions that have not been addressed by the Florida Trust Code. It considers which assets are appropriate for revocable trusts. The article also discusses important provisions for planning and drafting revocable trusts to administer and marshal assets during lifetime, to provide an alternative to guardianship, and to dispose of assets on or after death in conjunction with a will."

48 Fla. L. Rev. 675

Florida Law Review

September, 1996

David T. Smith

THE POTENTIAL PERSONAL REPRESENTATIVE: READY, WILLING, BUT PERHAPS UNABLE TO ACT IN FLORIDA

"Today, Florida uses the term “personal representative” to generically refer to fiduciaries that were known as executors and administrators prior to the enactment of the Florida Probate Code.1 In the administration of either a testate or intestate estate, it is necessary to go through the process of court appointment of a personal representative. When a will exists, the personal representative usually is the person nominated in the will.2 Ordinarily, this person offers the will for probate. This potential personal representative may be ready and willing to serve. *676 However, legal disqualification may prevent him or her from acting as personal representative.3 Qualification for the position of personal representative is a necessary criterion."

85 St. John's L. Rev. 683

Saint John's Law Review

Spring 2011

Karen J. Sneddond

SPEAKING FOR THE DEAD: VOICE IN LAST WILLS AND TESTAMENTS

"This Article examines voice in wills. First, this Article considers the function of wills and the continued importance of the will in the age of will substitutes. Second, this Article explores the concepts of voice and persona, including the applicability of these terms to wills. Third, this Article analyzes voice in wills by contemplating voice in both non-attorney drafted wills and attorney drafted wills. Fourth, this Article highlights five opportunities that enable the draftsperson to consciously craft a persona that appropriately injects the individual's voice into the will while ensuring that the will continues to be both substantively accurate and operative."

Advanced Directives

28 Harv. J. on Legis. 609

Harvard Journal on Legislation

Summer, 1991

PROTECTING THE RIGHT TO DIE: THE PATIENT SELF-DETERMINATION ACT OF 1990

"Patients generally possess the right to refuse medical treatment, even if it will result in their death. However, if the patient becomes incompetent, and his family seeks to terminate life-sustaining treatment, state law may provide the family and physician little guidance: who should make the decision to terminate treatment, and how should the decision be made? This legal uncertainty, combined with ethical concerns, makes some health-care providers wary of discontinuing life-sustaining treatment. Thus, the patient and his family may be forced to bear the tremendous costs of unwanted treatment."

48 U. Miami L. Rev. 193

University of Miami Law Review

September 1993

HEALTH CARE ADVANCE DIRECTIVES: IMPLICATIONS FOR FLORIDA MENTAL HEALTH PATIENTS

"A competent individual in Florida has a well-established right to refuse unwanted medical treatment. The Florida Legislature has found “that every competent adult has the fundamental right of self-determination regarding decisions pertaining to his own health, including the right to choose or refuse medical treatment.” To give meaning to the right of self-determination, the Health Care Advance Directives Act (“Advance Directives Act”) allows a competent adult to direct his future health care through the use of a health care advance directive. More significantly, mental health patients in Florida also have a statutory right to forego psychiatric treatment."

Living Wills

69-DEC Fla. B.J. 14

Florida Bar Journal

December, 1995

Sandra G. Krawitz

THE FLORIDA DURABLE POWER OF ATTORNEY BECOMES A DOCUMENT TO RESPECT-- 1995 CHANGES

"The intent of the durable power of attorney, authorized by F.S. §709.08, is to delegate powers to another, in the event the principal is unavailable or unable to act. Until the 1995 legislative session, the statute was fairly simplistic. Effective October 1, 1995, however, §709.08 undergoes significant changes. This article will discuss those changes in detail and will provide a form for the durable power of attorney under the new statute,1 as well as a form for a durable power of attorney specific to transactions involving real estate."

29 Harv. J. on Legis. 175

Harvard Journal on Legislation

Winter, 1992

Marni J. Lernera

STATE NATURAL DEATH ACTS: ILLUSORY PROTECTION OF INDIVIDUALS' LIFE-SUSTAINING TREATMENT DECISIONS

"The Supreme Court's decision in Cruzan v. Director, Mo. Dep't of Health has increased the importance of documenting individual desires regarding life-sustaining treatment in living wills. Many states have passed natural death acts authorizing living wills under certain conditions.In this Note, the author argues that although the natural death acts profess to protect individual autonomy and self-determination, the acts in fact seriously restrict an individual's right to control treatment decisions. The author discusses how the class of people protected by the statutes is narrowed through the terminal-condition requirement, as well as how the exclusion of nutrition and hydration from the types of treatments that can be withdrawn restricts the individual's right to refuse treatment. The author addresses how natural death acts protect the medical profession's control over treatment decisions at the expense of reducing the patient's control over those decisions. Finally, the author discusses practical problems that arise when implementing living wills, which further frustrate individual autonomy and self-determination."

20 Stetson L. Rev. 519

Stetson Law Review

Spring, 1991

Scott Allan Fricka

THE RIGHT TO FORGO LIFE-SUSTAINING PROCEDURES IN FLORIDA: IS FLORIDA “CRUZAN-PROOF”?

“If I ever become so mentally and physically far gone that the only way I could be kept alive would be through the use of artificial life support, I would rather be let alone, to die a natural death.” How much weight will this request be given in determining whether a person would be allowed to die naturally? Must the request be in writing? Must the request be notarized and signed by witnesses? Who will decide whether someone may forgo life-sustaining devices — family members, doctors, or judges? Further, what factors will be involved in the determination — religious beliefs, doctors' evaluations, judges' opinions as to legal rights, or some combination of the three?"