Florida Probate and Trust Litigation Blog

Florida Electronic Wills - What does Vulnerable Adult Mean?

Most probate and trust litigation attorneys have been paying extremely close attention to the proposed legislation that would permit estate planning documents to be executed electronically. This is often referred to as Florida’s Electronic Wills Bill or the E-Will Bill.

In a nutshell, the legislation is supposed to allow people to sign these important testamentary documents remotely, for example from the comfort of their own home without driving to a lawyer’s office. In many ways this creates a more informal will signing and there is a strong debate among lawyers on whether the execution of these critical legal documents should continue to be in a formal execution ceremony. That is a topic for another day.

The bill passed in the Florida House through  CS/CS/HB 409 - Electronic Legal Documents. The related senate bill also passed.CS/SB 548 - Electronic Legal Documents. It is important to note that under the senate version, the execution by a vulnerable adult is voidable.

Florida’s Electronic Will Statute cannot be used by a “Vulnerable Adult”

One of the most interesting things about the proposed statute is that it renders any remote signature by a “vulnerable adult” void as a matter of law. In other words, if a testator is a vulnerable adult and executes the will electronically, then the entire will is void.

In fact, the Florida House staff analysis reportstates as follows:

The bill provides that a document signed by a vulnerable adult and witnessed remotely is not valid, and a RON service provider must post that disclaimer if the electronic record to be signed is a(n):

• Will;
• Trust with testamentary aspects under ch. 736;
• Advance health care directive;
• Waiver of spousal rights under ss. 732.701 or 732.702, F.S.; or
• Power of attorney authorizing a transaction enumerated in s. 709.2208, F.S.

It is important to note that under the senate version, the execution by a vulnerable adult is voidable. The senate analysis report can be viewed here.

The logical question is what does vulnerable mean and who does that apply to?

What is a vulnerable adult in Florida?

The E-Wills statute relies on the definition of vulnerable adult under Florida’s Adult Protective Services Act (Chapter 415, Florida Statutes). The legislature’s selection of this definition is curious, because it is intentionally broad and expansive.

The term “vulnerable adult” is defined in Fla. Stat. § 415.102to mean:

a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long- term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.

Fla. Stat. § 415.102(28).

This can be broken down into two possibilities:

1. a person 18 years of age or older whose ability to perform the normal activities of daily living is impaired due to a mental, emotional, sensory, long- term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.

Or

2. a person 18 years of age or older whose ability to provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long- term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.

There are a lot of specific terms in this statute that need to be broken down to fully understand just how broad the definition really is.

What is impairment under Florida law?

The most critical word in this definition is impaired.Notably, a party is not required to prove a complete inabilityto either perform the normal activities of daily living or provide for their own care or protection; rather, a party is merely required to prove impairment of the testator’s ability to do so. See Fla. Stat. § 415.102(28).

Think about that for a moment.  In a typical will or trust contest, a party challenges the validity of the document on the grounds that the testator lacked the requisite testamentary capacity. To prove that, there is a long investigation process about the testator’s mental ability and whether they could understand the nature and extent that they were executing. A medical record showing dementia and Alzheimer’s while helpful, is not dispositive of the issue. Depending on the severity of the diagnosis, a person with dementia or Alzheimer’s could conceivably have the mental capacity to execute a will or trust. Courts in Florida have found wills to be valid in these circumstances.

This electronic will statute would completely create a new method of attacking the will. If the testator had dementia or Alzheimer’s they would automatically meet the “mental impairment” requirement without further evidence needed.

The statute is not just limited to mental impairments, either. It extends to physical, sensory, and emotional impairments. Our firm handled a case that addressed the issue of whether the testator was a vulnerable adult that explored these additional terms.

For physical impairment, ambulatory function can meet the standard. If a person needs assistance walking with a cane, walker, wheelchair, then they suffer from a physical impairment that could meet the definition.

Likewise, emotional impairment from a state of grief can meet the definition. So often, estate planning instruments are drafted after some tragedy. So, if the testator is still in a state of grief, they may meet the emotional impairment standard.

Perhaps the broadest term is that of “infirmities of aging.” That term appears to be a catchall but presents particular concerns in the estate planning context. Generally, most people executing estate planning documents are elderly and suffer from some infirmities of old age.

Activities of daily living: means “functions and tasks for self-care, including ambulation, bathing, dressing, eating, grooming, toileting, and other similar tasks.” § 415.102(2). So, if a testator needs assistance with any of these enumerated or “similar tasks” there is a serious possibility that the person is vulnerable.

So, as you prepare to attack or defend the execution, keep these tools handy.