Florida has taken a major stand against abuse and fraud perpetrated on senior and disabled citizens. A week ago, the Protection of Elderly Persons and Disabled Adults Bill was passed; it is headed to the governor for signature. The new law’s effective date would be July 1, 2021. The bill has a myriad of protections for seniors and disabled individuals. Key provisions include:

As a part of many estate and elder law plans, an elder law attorney will draft a financial power of attorney for a client. The client, as the principal, names another person, an agent, to act on their behalf. The power of attorney can be effective immediately, meaning the agent can act even if the principal has capacity. Or, the power of attorney can be springing, meaning the agent can only act if the principal becomes incapacitated and unable to manage his or her own financial affairs. But what happens if an agent begins to act under the document before the springing provision has been satisfied? Are the agent’s acts legally binding?

In a case out of the Superior Court of Pennsylvania, this issue was litigated. Here, Mercedes had six children. In 2013, she named child Joseph as her agent on a power of attorney form that Joseph had downloaded off the Internet. Therein was a clause that stated Mercedes must be incapacitated or disabled and there must be a physician’s statement to that effect before the power of attorney became effective and Joseph would be able to act. However, Joseph began acting as Mercedes’ agent immediately after signing the document, in routine financial affairs. Mercedes had not been declared incompetent and had not obtained a written physician’s statement.

Language can be tricky, imprecise, and confusing. When drafting legal documents, it is important to convey a certain meaning without needing external input on deciphering that meaning. After all, these documents may need to be interpreted after the person expressing their wishes has died or is incapacitated. Having a legal document with a term that can be ambiguous can lead to family discord, a lack of the Grantor’s intent being carried out, and even litigation.

In a case out of Texas, the meaning of the word spouse was litigated. Here, the Grantor left a share to her son’s spouse. To whom did spouse refer? Did it refer to the son’s spouse at the time the trust was established and executed, or did spouse refer to his wife at the time the trust was administered after the Grantor’s death?