Key Takeaways
- About 75% of seniors who meet with Cary Moss for the first time discover they are either not covered, have the wrong documents, or have a significant gap in their plan — even when they thought everything was handled.
- A will does not avoid probate. It provides instructions for probate. This is the single most common and costly misconception in estate planning for seniors.
- Having documents is not the same as having a plan. How accounts are titled and how beneficiary designations are coordinated can completely override what any document says.
- Florida’s durable power of attorney has unique “special powers” that must be individually initialed — and out-of-state documents almost never include them. For seniors, this is the one document that almost always needs to be updated when moving to Florida.
- Every adult age 18 and older needs basic estate planning documents. On the day a child turns 18, a parent loses all legal authority to make decisions for them — including medical ones.
Most Seniors Think They’re Covered. Most Aren’t.
If you’re a senior living in Orange, Lake, Osceola, or Seminole County — whether you’re in Orlando, Winter Park, Windermere, Winter Garden, Dr. Phillips, or Horizon West — there’s a good chance you believe your estate is already handled. You may have a will. You may have documents drafted years ago in another state. You may have done some planning and simply moved on.
Cary Moss, an elder law and estate planning attorney at Sawyer & Sawyer, P.A., has been working primarily with senior clients for years — most of them 65 and older, retired, and in a different stage of life than when they last thought about their documents. Her experience is consistent: about 75% of seniors who come in for an initial review leave the meeting surprised. Some didn’t have the right documents. Some had gaps they didn’t know existed. Some had documents that were valid on their face but weren’t coordinated with how their accounts were actually titled — which meant the plan wouldn’t work the way they intended.
The review isn’t just about the paperwork. It’s about looking at the whole picture: what documents exist, how assets are owned, what the beneficiary designations say, and whether everything is actually working together. That coordination is where most plans quietly fall apart.
What Happens When the Right Documents Aren’t in Place
Before getting into the documents themselves, it helps to understand what’s at stake when they’re missing.
If someone passes away without proper estate planning documents, Florida’s intestate statute takes over and determines who inherits — regardless of what the person may have wanted. That could mean an estranged child who hasn’t been spoken to in decades suddenly becomes a legal heir. It could mean a minor grandchild inherits assets directly, and because Florida law requires a legal guardianship for minors who inherit more than $15,000, the family now faces an additional legal proceeding just to allow that child to receive the inheritance.
The situation is similarly complicated when someone becomes incapacitated without the right documents in place. Without a valid power of attorney, no one has legal authority to access that person’s accounts or make financial decisions on their behalf. The only path forward is a guardianship proceeding — which is expensive to establish, requires ongoing court approval for financial decisions, and significantly limits what an elder law attorney can do to protect the person’s assets during a long-term care crisis.
These outcomes are entirely preventable. But they require the right documents — drafted correctly, coordinated properly, and reviewed over time.
Document 1: The Last Will and Testament — and What It Can’t Do
The will is the document most people think of first when they hear “estate planning,” and it’s also the most misunderstood.
A will is a legal document that controls how probate assets are distributed at death. The critical word there is probate. A will does not avoid probate — it provides instructions for probate. This is the single most common misconception Cary Moss hears, almost daily: “I have a will, so I don’t need probate.” That is simply not the case.
A will only governs assets that are in the individual’s name alone, with no joint owner and no beneficiary designation. Any account with a named beneficiary — a retirement account, a life insurance policy, an investment account — passes directly to that beneficiary, completely outside of the will. The same goes for jointly owned property. If the asset has a joint owner or a beneficiary designation, the will has no say over where it goes.
This distinction matters enormously. A senior who assumes their will reflects their wishes may not realize that a single beneficiary designation on a large investment account — perhaps named years ago for convenience — could override the entire plan.
Two other common mistakes: first, handwriting changes directly onto a will (crossing out dollar amounts, adding names) is not enforceable in Florida and creates significant problems at probate. Second, a will from New York or New Jersey may not need to be fully redone, but it needs to be reviewed — Florida has specific execution requirements, homestead provisions, and personal representative rules that out-of-state documents often don’t address.
Florida requires a will to be signed by the individual in the presence of two witnesses. A will with only one witness is invalid. Florida also strongly recommends a self-proving affidavit — signed by the testator, witnessed, and notarized — completed at the time of signing. Without it, proving the will after death requires tracking down the original witnesses to sign an oath before the court, adding delay and expense to the probate process.
Document 2: The Revocable Living Trust — When It Makes Sense
Not every senior needs a revocable living trust. But for many, it’s the better tool — and understanding when that’s the case is part of what an estate planning review surfaces.
A trust-based plan becomes worth serious consideration in several situations. One of the clearest is out-of-state real property. If a senior has a lake house in Georgia and only a will-based plan in Florida, settling the estate after death requires opening a separate ancillary probate in Georgia just to transfer that property. A properly funded revocable trust avoids that entirely — the property is retitled in the trust’s name and passes to beneficiaries without court involvement in either state.
Beyond that, a revocable trust makes sense when probate avoidance is a primary goal — particularly for clients who have been through the probate process with a parent or family member and don’t want their own family to experience it. It also provides privacy: unlike a will, which becomes public record when filed with the court, a trust keeps the details of the estate confidential. And for seniors with business interests, a trust generally provides a smoother succession path than a will alone.
The decision is always individual. Every client’s assets, family dynamics, and objectives are different, and the right structure comes from asking the right questions — not from assuming everyone needs the same documents.
Document 3: The Durable Power of Attorney — The Most Critical Document for Seniors
For seniors specifically, the durable power of attorney may be the single most important document in the entire estate plan — especially in the context of elder law and long-term care planning.
A durable power of attorney is effective the day it’s signed and remains valid even if the person loses capacity. It authorizes a named agent to handle financial, legal, and business decisions — but only those specifically listed in the document. The scope of what it covers is entirely determined by what the document actually says.
Florida overhauled its power of attorney statute in October 2011, and the change that matters most for seniors is the addition of enhanced powers — also called special powers or super powers. These provisions must be individually initialed within the document. It is not sufficient to sign at the end or initial a blanket “all of the above” line. Under Florida law, each special power provision must be separately initialed to be enforceable.
These enhanced powers are what allow an elder law attorney to implement long-term care planning strategies — protecting assets, managing Medicaid planning, and navigating care transitions — on behalf of a senior who is no longer able to manage those things themselves. Without them, the attorney’s options are severely limited even when a power of attorney exists.
Cary Moss is direct about this: the durable power of attorney is the one document she insists on updating when a senior moves to Florida from another state. Out-of-state documents almost never include Florida’s enhanced powers. A senior with a New York power of attorney may believe they’re covered, but when a long-term care crisis hits, the limitations of that document become apparent at the worst possible moment.
One additional element worth discussing with any attorney: a self-dealing provision. When the agent named under the power of attorney is also a beneficiary of the estate — which is very common, as most people name their children — any financial actions taken on behalf of the senior that also benefit that child could be considered self-dealing. A well-drafted document includes language that addresses this directly, protecting both the client and the family from future disputes.
If a senior has already lost capacity by the time they come in, no document can be signed. The only path at that point is guardianship — a court-supervised process that is expensive, ongoing, and significantly restricts what can be done for long-term care planning.
Document 4: The Designation of Healthcare Surrogate
A healthcare surrogate designation names a person to make medical decisions on someone’s behalf — speaking with doctors, consenting to treatment, choosing medical facilities — when that person can no longer make those decisions themselves.
The standard activation point is incapacity: the document kicks in when the individual can no longer make their own healthcare decisions. But Florida documents include an option that Cary Moss recommends many of her senior clients consider: allowing the healthcare surrogate to assist even before full incapacity, without the individual giving up control.
This is particularly relevant for seniors managing serious illness. A client going through chemotherapy, for example, may not be incapacitated in any formal sense — but on certain days they may be physically ill, mentally foggy, or simply not in a position to manage every medical decision alone. With this provision in place, the surrogate can step in and help as needed, which reduces burden on the patient without removing their authority.
This document is frequently confused with a living will. They are two entirely different documents serving two different purposes.
Document 5: The Living Will
A living will is a specific type of advance directive that addresses end-of-life decisions — what the person does and does not want if they are dying and cannot speak for themselves.
It only takes effect when all three of the following criteria are met: the person is incapacitated and cannot make their own healthcare decisions; they have been diagnosed with a terminal condition, end-stage condition, or are in a persistent vegetative state; and at least two physicians have determined there is no reasonable medical probability of recovery.
When those conditions are all present, the living will directs medical providers according to the person’s stated wishes — typically declining artificial measures that would only prolong the dying process (mechanical breathing, feeding tubes), while authorizing palliative care and pain management.
The value of a living will isn’t just legal — it’s deeply personal. It removes the burden of that decision from family members and eliminates disagreement about what the person wanted. It gives the healthcare surrogate clear direction and allows the family to act without guilt or conflict at an already painful time.
Document 6: The HIPAA Release — The One Nobody Thinks About
The HIPAA release is the document most seniors have never heard of — and it can quietly undermine every other document in the plan if it’s missing.
Under the Health Insurance Portability and Accountability Act, medical staff cannot share a patient’s protected health information with anyone not specifically authorized to receive it. That includes spouses. That includes adult children. Even if a healthcare surrogate is in place and a living will is on file, medical providers may still be legally prevented from discussing a patient’s care with family members who aren’t named in a HIPAA release.
The fix is simple: a HIPAA authorization that names the people — a spouse, multiple children, other trusted individuals — who are permitted to receive medical information. Multiple people can be listed, and it allows for a free flow of communication between family and medical providers at exactly the moment when that communication matters most.
For seniors receiving care within Central Florida’s major hospital networks — Orlando Health, AdventHealth, Nemours — these documents can and should be uploaded directly to the patient portal. Once uploaded, they appear in the patient’s chart across every location within that network, so they’re immediately accessible without requiring family members to produce physical copies in an emergency.
Having Documents Is Not the Same as Having a Plan
This distinction is one Cary Moss returns to consistently, and a real case makes it concrete.
A man in his late 50s — not an unsophisticated person, by any measure — died unexpectedly, leaving four daughters ranging from high school to college age. His will was properly executed. His personal representative was correctly named. But alongside the will, he had done a lady bird deed naming his daughters as outright beneficiaries on his home, and on a $3 million-plus investment account, he had named all four daughters as direct, outright beneficiaries.
On a separate spreadsheet — not a legal document — he had written a note to whoever would administer his estate: “Make sure you put my girls’ shares in trust for them.”
That note was completely unenforceable. The assets passed outright to his daughters — no trust, no staged distribution, no protection. He had circumvented his own will by accident, and there was nothing anyone could do to change it after the fact.
The same kind of unintended outcome happens with account titling. A senior who names one adult child as joint owner on a checking account for convenience may intend for that child to divide the funds equally with a sibling. But by operation of law, when the parent dies, the joint owner inherits the full account. If the siblings are in a dispute, or if the joint-owner child dies or becomes incapacitated shortly after the parent, the outcome can be completely different from what anyone intended.
Cary Moss also frequently sees the reverse mistake with disabled children: a parent cuts the disabled child out of the estate entirely, afraid of disrupting their government benefits, and leaves everything to the other children with the expectation that they’ll “take care of” their sibling. But what happens if one of those children gets divorced and those assets become marital property? What if they’re sued? What if the government benefits the disabled child relies on are restructured or cut? The right answer is a properly drafted supplemental needs trust — not disinheritance.
A complete estate plan for seniors accounts for all of it: the documents, the titling, the beneficiary designations, and how every piece interacts with every other.
A Note for Seniors Who Moved to Florida from Another State
Central Florida has seen significant growth from seniors relocating from New York, New Jersey, Michigan, and other states. Many of them arrive with estate planning documents from their prior state — and many assume those documents are still valid and sufficient.
Some may be. Wills from other states that were properly executed there are often still usable in Florida. Healthcare documents can frequently be carried over as well. But the durable power of attorney is almost always going to need to be redone — and for seniors specifically, that’s the highest-priority update.
Beyond the power of attorney, Florida’s homestead laws are unique. Documents from other states often don’t account for Florida’s constitutional homestead provisions, which govern how certain property can be devised — and which can create conflicts with how a trust or will is structured. Any out-of-state document deserves a review before being relied upon here.
When to Update Your Estate Plan
Estate planning for seniors isn’t a one-time event. Life changes, and the plan has to keep up.
Trigger events that should prompt an immediate conversation with an attorney include marriage or divorce — the client’s or a beneficiary’s — the death of a named fiduciary or spouse, any incapacity in the family, a child or grandchild becoming disabled, a significant financial change, the purchase of out-of-state real property, or a move to Florida from another state.
Even without a trigger event, Cary Moss recommends reviewing the plan at least every three to five years. Documents that were appropriate a decade ago may no longer reflect the current family, the current assets, or the current law.
What an Estate Planning Checkup at Sawyer & Sawyer Actually Looks Like
For seniors who aren’t sure whether their documents are current, complete, or even appropriate for their situation, Sawyer & Sawyer offers a structured intake process. Before the first meeting, an intake form covers financial circumstances, family structure, any blended family considerations, and whether any beneficiaries have disabilities or special needs. Clients are asked to bring existing documents — whether drafted in Florida or in another state.
The first meeting is a listening session. Cary Moss asks about objectives, family dynamics, types of assets, and what matters most to the client. From there, a recommendation is made: will-based plan, trust-based plan, or updates to specific documents. Nothing is done that isn’t necessary — the goal is to ensure the plan is right, not to create work.
For seniors age 65 and older in the Orlando area, that conversation is typically with Cary Moss directly, given her focus on elder law, long-term care planning, and the specific legal needs of older clients.
Schedule Your Estate Planning Checkup Today
Whether you’ve had documents for years or you’ve never quite gotten around to it, there’s no better time than now to make sure your estate plan actually does what you think it does.
Cary Moss and the team at Sawyer & Sawyer, P.A. serve seniors across Orange, Lake, Osceola, and Seminole Counties — including Orlando, Winter Park, Windermere, Winter Garden, Dr. Phillips, and Horizon West — with estate planning, elder law, special needs planning, and probate guidance tailored to where you are in life.
Call Sawyer & Sawyer, P.A. at 407-909-1900 or schedule your estate planning checkup online at sawyerandsawyerpa.com/contact-us. Don’t wait for a crisis to find out your plan has a gap.
