Written by: Rima Suleiman

In the complex realm of healthcare decisions, having a plan in place can provide both peace of mind and clarity for individuals and their loved ones. In Florida, the legal instruments of living wills and healthcare surrogates empower individuals to assert their preferences and make informed choices regarding their medical care, even when they are unable to communicate their wishes. Below are brief explanations of the importance of living wills and healthcare surrogates in Florida, the legal requirements for these documents, and how they can bring assurance during critical moments.

Understanding Living Wills: Your Voice in Healthcare

A living will, often referred to as an advance healthcare directive, is a legal document that enables you to articulate your medical treatment preferences in circumstances where you cannot convey them due to incapacitation. This document comes into effect when you are diagnosed with a terminal condition, an end-stage condition, or find yourself in a persistent vegetative state.

Key Components of a Living Will in Florida

Artificial Life-Prolonging Procedures: Your living will provides you with the opportunity to specify your preferences concerning various medical treatments, including the use of ventilators, feeding tubes, and other artificial life-prolonging procedures. You can indicate whether you wish to undergo these interventions or not.

Organ Donation: Florida’s living will form also offers you the option to express your intentions regarding organ donation.

Appointment of a Healthcare Surrogate: While the primary focus of a living will is to outline your treatment preferences, it additionally allows you to appoint a healthcare surrogate. This individual will make healthcare decisions on your behalf if your condition does not precisely align with the scenarios outlined in your living will.

Healthcare Surrogates: Trusted Decision-Makers

A healthcare surrogate, also known as a healthcare proxy or agent, is a person chosen by you to make medical decisions on your behalf when you are unable to do so. This person should be someone you trust implicitly to act in your best interests and in accordance with your wishes.

Designating a Healthcare Surrogate in Florida

In Florida, you can designate your healthcare surrogate by completing a specific form. This document should include the following details:

Surrogate’s Designation: Clearly state the full name of the person you are appointing as your healthcare surrogate.

Alternate Surrogate: It is wise to name an alternate surrogate in case your primary surrogate is unavailable or unable to fulfill their duties.

Powers and Limitations: Define the powers and limitations of your healthcare surrogate to ensure they fully understand your preferences.

Signatures and Witnesses: The document must be signed by you in the presence of two witnesses, neither of whom should be the designated surrogate. 

Revocation: You retain the right to revoke or change your surrogate designation at any time, as long as you are mentally competent to do so.

The Intersection of Living Wills and Healthcare Surrogates

Living wills and healthcare surrogates in Florida work in tandem. Your living will serves as a guide for your surrogate, providing explicit instructions about your end-of-life wishes. In scenarios where the living will does not explicitly address your medical condition or treatment, your healthcare surrogate can make decisions that align with your overarching values and preferences.

Conclusion

Planning for end-of-life decisions can be emotionally challenging, but it is a vital part of responsible life management. In Florida, living wills and healthcare surrogates provide a legal framework to ensure that your medical preferences are upheld when you are unable to express them yourself. By taking the time to create these documents and selecting trustworthy attorney to act on your behalf, you can find solace in knowing that your healthcare decisions will align with your values and desires. Consulting with an attorney or healthcare professional can help navigate the complexities of these documents and ensure they adhere to Florida law. 

Like the milestone inspection, the SIRS involves a visual examination of certain building components deemed critical to structural soundness and safety. Its purpose is to determine an annual reserve amount that achieves the estimated replacement or deferred maintenance cost for the components, by the end of their useful lives. Condominiums must then incorporate those amounts into their annual budgets, meaning associations can no longer waive reserves for the specific SIRS components. SB 4-D also set the initial SIRS deadline as

December 31, 2024

– for condominium associations existing on or before July 1, 2022.A major concern with SB 4-D was that the SIRS components included load-bearing walls, floors, and foundations. Performing a visual inspection of these items, however, may be difficult or practically impossible without significant destructive work. The original list of SIRS components also included windows, but condominium associations typically only maintain windows if they are included as common elements (i.e., not windows deemed part of the units). Additionally, SB 4-D was unclear as to when annual budgets must start including reserves for SIRS components despite the initial deadline to have a SIRS report completed. Again, there were also numerous concerns with the feasibility and implementation of the SIRS.    SB 154 attempted to address these as well. For example, floors and foundations were removed from the list of SIRS components, and “load-bearing walls” was replaced with: “structure, including load-bearing walls . . . and primary structural systems as those terms are defined in s.627.706.” In addition, windows are now accompanied by “exterior doors,” along with clarification that the SIRS requirement only applies to components maintained by the association. SB 154 also authorized those performing the SIRS to determine that no reserves are required for certain components with an estimated useful life greater than 25 years – or the SIRS may recommend a deferred maintenance expense for such components. Either way, this was intended to address “structure” or any other SIRS component that may be difficult or impossible to inspect. Finally, the mandatory reserve requirement was clarified to apply to any budget adopted on or

after December 31, 2024

– meaning one adopted beforehand is the last time a unit owner-controlled condominium association can provide no reserves or less reserves than required by the SIRS.It is important to note that there are many additional aspects to SB 4-D that continue to remain in place. Furthermore, SB 154 includes new provisions that were not originally part of SB 4-D. It will thus take some time to reconcile both bills to understand the full impact on condominiums going forward. But the general takeaway from this “glitch bill” is that milestone inspections, SIRS, and increased reserve requirements are here to stay.

By: Erum S. Kistemaker, Managing Partner (Attorney), Juris Doctorate

• A milestone inspection is a mandatory inspection that is required when a condominium
  reaches a certain age. The association is required to visually inspect all buildings, three
  stories or more, for substantial structural deterioration per SB 4D that was passed in
  the 2022 legislative session. If any is detected, the association must perform testing
  and/or repairs. SB-4D set the initial deadline for milestone inspections as December 31,
  2024, or by the end of the year in which the condominium turns 25 or 30 years old,
  depending on its vicinity to the coastline. According to some experts, this instantly
  triggered the inspection requirement for over 20,000 condominiums across the
  state. Therefore, making Compliance by December 31, 2024 UNreasonable or
  UNachievable under SB 4-D. For example, milestone inspections had to be performed
  directly by a limited pool of licensed architects or engineers *WHICH HAS BEEN
  CHANGED UNDER SB 154. In addition, the 25-year deadline for certain coastal
  condominiums had already passed, or the method of computation caused the
  inspection outside date to be sooner than the end of 2024. SB 4-D also permitted local
  enforcement agencies to send compliance notices, but it was unclear whether the
  notices could effectively shorten or extend the statutory deadlines. Causing numerous
  concerns with enforcement and implementation of the milestone inspection
  requirements *SEVERAL OF MY CONDOS IN DAYTONA BEACH HAVE STARTED TO
  RECEIVE THESE NOTICES FROM THE CITY OF DAB. SB 154 attempts to address these
  concerns.
• First, milestone inspections can now be performed by a “team of professionals” working under a licensed architect or engineer.
• The initial deadline for condominiums reaching 30 years old between July 1, 2022
  and December 31, 2024, was extended to December 31, 2025. This addressed the deadlines that had already passed, or those with outside dates sooner than December 31, 2024. Therefore, the notices become moot.
• SB 154 also removed the strict 25-year deadline for coastal condominiums, and instead, authorized local enforcement agencies to impose a 25-year deadline for any applicable condominium because of local circumstances, such as the proximity to saltwater.
• SB 154 revised the notice procedure for local enforcement agencies, which can now extend the milestone inspection deadline for a condominium that shows
• good cause (e.g., a pending contract for a milestone inspection that cannot be reasonably completed by the deadline).

To access our Facebook Live video on the topic – click here – https://www.facebook.com/KistemakerBusinessLawGroup/live_videos/

Seen as a “glitch bill,” SB 154, which recently passed, is a legislative means to resolving certain issues that came from the previous years legislative session’s SB 4D.

Last year one of the significant updates to the Florida Condominium Act, SB 4D is viewed by many experts as a crucial step toward preventing another catastrophic incident similar to the Surfside tragedy. This year, SB 154 attempts to clarify ambiguities in SB 4D. Why SB 154 is considered a glitch bill.

The following is a summary of the key provisions of SB 154:

1. Community Association Managers: The law removes the term “that has a building on the association’s property” from the requirement for community association managers to comply with certain provisions relating to mandatory structural inspections.
2. Milestone Inspections: The law revises milestone inspection requirements, focusing on residential condominium and cooperative buildings. It clarifies responsibilities, cost-sharing, and reporting requirements for associations. It also provides an option for local enforcement agencies to set a 25-year inspection requirement based on environmental conditions.
3. Flood Insurance: The law exempts certain units from flood insurance requirements if they are insured for personal property under a flood master policy or if they are located above specific floors based on their position within a special flood hazard area.
4. Access to Records: The law clarifies that both association members and their authorized representatives have the right to inspect official records of the association, and the association cannot choose who has this right.
5. Reserves and Structural Integrity Reserve Study (SIRS): The law introduces an alternative funding method for multicondominium associations to fulfill reserve funding obligations. It revises requirements for reserve funding, SIRS recommendations, and reserve assessments. Certain buildings and portions/components may be exempt from SIRS requirements.
6. Dispute Resolution: Starting July 1, 2027, the law expands mediation options for condominium and cooperative unit owners, allowing them to utilize the mediation process for certain structural and life safety inspection disputes.
7. Maintenance Obligations of the Association: The law specifies maintenance responsibilities for condominium and cooperative associations, including the repair and replacement of applicable property. After turnover of control, the association must maintain property as specified by the developer until new maintenance protocols are obtained.
8. Presale Disclosures: Developers must provide prospective buyers with statements regarding milestone inspections, SIRS, and reserve studies, if applicable. The law introduces additional presale notice requirements in contracts to ensure buyer awareness.

The law is effective immediately, except for the dispute resolution provision, which takes effect on July 1, 2027.

To access our Facebook Live video on the topic – click here – https://www.facebook.com/KistemakerBusinessLawGroup/live_videos/

By: Rima Suleiman

Condo: It is not unusual for boards/board members to receive a written request from a unit owner seeking answers to questions about various issues. How the association must respond depends on the type of community association and the manner in which the inquiry was received. If the community association is a condominium association then the Florida Condominium Act governs. 

Section 718.112, provides that when a unit owner of a residential condominium sends their board a written inquiry by certified mail, the board shall respond in writing to the unit owner within 30 days after receipt of the inquiry. The condominium association board’s response shall either give a substantive response to the inquirer, notify the inquirer that a legal opinion has been requested, or notify the inquirer that advice has been requested from the division. If the condominium association board requests advice from the division, the board shall, within ten days after its receipt of the advice, provide in writing a substantive response to the inquirer. If a legal opinion is requested, the condominium association board shall, within 60 days after the receipt of the inquiry, provide in writing a substantive response to the inquiry. There are penalties if these deadlines are not met. For example, in the event there is a lawsuit concerning the issues asked about, the association would be precluded from recovering its attorney fees—even if it were to prevail in the lawsuit. 

However, please note, the condominium association may, through its board, adopt reasonable rules and regulations regarding the frequency and manner of responding to unit owner inquiries.

HOA: Alternatively, if the community association is a homeowners’ association (“HOA”), then the Florida Homeowners’ Association Act governs. This Act contains no such similar provision. This means the HOA has no statutory obligation to respond to a certified inquiry. However, the board may have an obligation to respond pursuant to the HOA’s governing documents and should review them to confirm there is no requirement therein to respond. Even if not legally required to do so, the HOA board should consider seeking advice from legal counsel as to whether it is in the best interest of the association to respond.

By: Rima Suleiman

The lady bird deed is an estate planning tool, allowing Florida residents to transfer property while avoiding probate. Please see below a complete overview of this unique tool.

1, What is a Lady Bird Deed?

The lady bird deed is a type of deed that conveys real property ownership from one party (the Grantor) to another party or parties (the beneficiaries or remaindermen), upon the death of the grantor, without the need for probate. 

A lady bird deed is also called an “enhanced life estate deed” because it is a life estate deed with more control. A life estate deed allows an owner to use his/her property during their lifetime, while giving away ownership of the property after death. The property interest kept during the owner’s life is called a “life estate,” and the property interest given away is called a “remainder.” After the owner dies, the person with the remainder becomes the full owner of the property.

The big advantage of a traditional life estate deed is that it avoids probate. The remainder beneficiary does not have to wait for a court to approve the transfer after death; rather, the whole transfer is automatic. This makes life estate deeds incredibly useful for estate planning because it makes things easier for the owner’s loved ones after he/she passes. However, there is also a big disadvantage to a traditional life estate deed; the future owner or beneficiary is a co-owner with the life tenant. Because of this co-ownership, the grantor cannot deal with the property as they see fit; they require the co-owners’ approval.

A lady bird deed solves the big problem of life estate deeds. The “enhancement” is that the person keeping the life estate retains complete ownership of the property. He/she can do as they please with the property without the involvement of the remainder beneficiary, including the right to change the beneficiaries as he/she wishes, sell the property, and/or mortgage it. The lady bird deed accomplishes this by not allowing the remainder beneficiary’s title to vest until the death of the grantor.

. 2. Does a Lady Bird Deed Avoid Probate?

Yes, similar to the life estate deed, the lady bird deed will let you avoid the probate court in Florida. When you pass away, your interest in the property goes away and the person you list as a beneficiary on the deed gains full ownership of the property outside of the probate code.

Avoiding probate also allows the property to pass without involvement from the personal representative of the estate. This can alleviate a lot of frustration on the part of the beneficiary of the property. It can also save money, as probate can be a costly process.

However, if your main goal in using a lady bird deed is to avoid probate, you should take steps to ensure that the deed is drafted properly. Incorrect drafting can cause many problems, and without proper planning, this occurrence could result in the property still needing to be probated. 

3. Is a Lady Bird Deed Revocable?

Yes, a lady bird deed can be revoked during the property owner’s lifetime. The lady bird deed expressly reserves the owner’s right to convey the property. To revoke a lady bird deed, all the owner needs to do is to validly execute a new deed. Thus, the new deed will extinguish the interest created by the old lady bird deed.

4. What Happens to a Lady Bird Deed After Death?

After the grantor of a lady bird deed dies, the property automatically transfers to the beneficiary listed on the deed. The beneficiary then owns the property. This transfer occurs without any probate of the property.

5. Does a Lady Bird Have to be Recorded?

The state of Florida does not require these deeds to be recorded. However, it is standard practice, and for good reason. In Florida, when a deed is recorded by the clerk of court, it is presumed to be delivered properly. This presumption is a requirement to have a valid deed. Without that validity, the deed could be challenged, resulting in massive consequences.

6. Does a Lady Bird Deed Affect the Florida Homestead Exemption?

No, it does not. The grantor maintains his/her Florida homestead tax exemption after executing a lady bird deed.

7. Does a Lady Bird Deed hinder Medicaid eligibility?

No, it does not. Since the transfer of the property owned does not occur until the grantor’s passing, it is not considered a gift that would hinder Medicaid eligibility.

By: Rima Suleiman

If you’re looking to relocate your corporation to Florida, you generally have three options to choose from. These options, along with each of their pros and cons, are outlined below:  

1. Conversion;

2. Dissolving your business and forming a new Florida Corporation; or

3. Keeping your corporation in your home state and Registering a Foreign Corporation in Florida.

1. Conversion: 

In Florida, conversion is the process of changing a foreign (out-of-state) entity into a domestic one (one based in Florida). Conversion permits the company to continue the day-to-day operations without any significant interruptions. When properly executed, this process ensures seamless continuation of operations while facilitating a smooth transfer of company to Florida. Continuity is ensured by the preservation of all aspects of the corporate entity’s identity, including bank accounts, credit rating, public records, and tax ID number. To file for Florida conversion, and have your company converted to a Florida corporation, you will need to do the following:

• Determine whether your state will recognize the conversion
  • You can only convert your corporation in Florida if your current state of incorporation recognizes the legal process of domestication. Pursuant to FL Stat § 607.11933, the conversion must be “approved by the eligible entity in accordance with its organic law.” Please note that your conversion may also not be recognized by your current state if your corporation is not in good standing due to delinquent annual report filings or other issues.

• Write a Plan of Conversion
  • A plan of conversion is an internal document drafted by the shareholders of your corporation that formally approves the conversion process on behalf of your corporation. The plan will need to detail how ownership will be allocated as the corporation transfers from your original state to Florida. Shareholders will all need to vote in simple majority to approve conversion.

• Submit Articles of Conversion
  • In your Florida Articles of Conversion, you’ll need to list several pieces of information, including: the business name, type of entity (corporation), State where it first incorporated, date of incorporation, new name of the Florida corporation, effective date, and a signature of a corporate director, officer or incorporator. To file the Florida Articles of Conversion, you will need to submit the Articles of Conversion packet (including a cover letter) either by mail or in person delivery. Florida does not currently offer online filing of conversion documents.

• Submit Articles of Incorporation
  • You must include new Florida Articles of Incorporation for your Florida corporation when you file your Articles of Conversion. The Florida Articles of Conversion packet includes Articles of Incorporation.

• Pay Filing Fees
  • The cost to convert your company to a Florida corporation is $105, to file for Articles of Conversion is $35, and to file for Articles of Incorporation is $70. 

• Dissolve the corporation in your home state
  • Once conversion of your corporation in Florida is completed, you’ll need to dissolve your corporation in its home state or jurisdiction. 

2. Dissolving your business and forming a new Florida Corporation:

Some states do not allow conversion of a corporate entity that was formed elsewhere in the US. Instead, the owner may be required to dissolve the former corporation and establish an entirely different one in the new state. With this option comes additional administrative work, including the need to close bank accounts and apply for a new tax ID number. To form a new corporation, you must file Articles of Incorporation with the Florida Department of State Division of Corporations (along with a filing fee). The articles must include a valid corporate name, which must include a suffix such as “corporation” or “incorporated,” must list the number of authorized shares of stock for your corporation, the address of your corporation’s principal place of business, and the name, address and signature of the incorporator.

3. Keeping your corporation in your home state and registering a Foreign Corporation in Florida: 

Alternatively, you can leave your business in your former state and register it as a foreign corporation in Florida. This allows you to maintain your corporate status in your former state, while also allowing you to transact business in Florida. Functioning as a foreign business entity is usually the quickest way to maintain business continuity in Florida. This option is preferrable if the business has continuing operations in its original state, or the owner ultimately plans to return to the state where the company was established or bequeath it to another of that state’s residents or family members. However, please note that foreign entity status may limit flexibility or create bookkeeping hassles by keeping the company anchored elsewhere.

To register as a foreign corporation, you must file an Application by Foreign Corporation for Authorization to Transact Business in Florida with the Florida Department of State. The form includes information such as the name of your corporation and location of your main office, and it must be accompanied by a filing fee, certificate of existence, or certificate of good standing from your corporation’s home state.

DISCLAIMER

Attorney Erum Siddiqui Kistemaker is the managing shareholder at Kistemaker Business Law Group. Kistemaker Business Law Group is a Boutique law firm with a strong dedication to delivering comprehensive legal counsel to business and corporate entities throughout Florida. Our business lawyers represent entrepreneurs, corporations, green companies, tech companies, as well as buyers and sellers of businesses large and small. Our office is in Ormond Beach, and you can visit our website at https://daytonabusinesslawyers.com/. Please note, the information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Kistemaker Business Law Group or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have any questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisement or this column. 

Please apply ASAP, it is a first come, first serve basis!

For more information go to www.FloridaDEP.gov/hurricane.

The Florida Hurricane Restoration Reimbursement Grant Program addresses coastal beach erosion incurred as a result of preparation for or damage sustained from Hurricane Ian or Hurricane Nicole after Sept. 23, 2022. It provides reimbursement per eligible project to eligible applicants who own an eligible residential property as referenced in Rule 62ER23-2, F.A.C.

Form 1 DEP-62ER23-2: Hurricane Restoration Reimbursement Grant Program Application 

Form 2 DEP-62ER23-2: Grant Terms and Conditions

Form 3 DEP-62ER23-2: Hurricane Restoration Reimbursement Grant Program Attestation of Low-Income or Moderate-Income

The department encourages the submittal of applications through its online portal.

To submit an application online, you must first create a DEP Grants User account and Login to view the application.

For more information go to www.FloridaDEP.gov/hurricane.

So honored to be asked by Florida Department of Business and Professional Regulation to present in their January 19 webinar about Special Assessments – to learn more and register for this informative session, click here – http://bit.ly/3uSzTA2

This is a FREE and virtual event hosted by the Education Section of the Division of Condominiums, Timeshares, and Mobile Homes. This special event is a webinar series called the “The Florida Condo Education Initiative”. The Education Initiative is a partnership between the Division of Condominiums, Timeshares and Mobile Homes’, Office of the Florida Condominium Ombudsman, and the Condominium and Planned Development Committee of The Real Property, Probate and Trust Law Section of The Florida Bar.

This presentation will contain comments and viewpoints from attorneys which will be provided for informational purposes only. The comments and viewpoints should not be construed as legal advice.