Florida Elder Law, Estate Planning and Real Estate Attorney
Five Basic Estate Planning Documents Everyone Needs
By Florida Estate-planning lawyer Rebecca M. Becker
Most people think the most important document to have is a “will” - a last will & testament. But that’s not really accurate. I think every adult first needs at least three basic estate planning documents:
1. A Designation of Health Care Surrogate ,
2. A Living Will ,
3. A Durable Power of Attorney ,
Then, the two other documents to consider are:
4. A Living Revocable Living Trust and
5. A Last Will and Testament .
Designation of Health Care Surrogate
A MUST for everyone. In my mind, nothing is more important than ensuring the person making medical decisions on my behalf is the person who knows my wishes and can be trusted to follow my instructions. This document designates who will make decisions regarding your medical treatment or care, if you are unable to communicate your wishes. Normally, a spouse or next of kin makes these decisions, but sometimes (particularly when there's a conflict over treatment) institutions refuse to follow even a spouse's directives. And with the restrictions caused by the health information privacy act (HIPPAA), medical service providers, insurance companies (even Medicare), nursing homes, etc. are refusing to speak with family members. Spouses can no longer speak for spouses; parents cannot speak for their 18 year old children; unmarried partners have no authority regarding one another. Read more about Designations of Health Surrogate.
Living Will
A MUST if you philosophically agree. This informs any medical care givers – and the courts, if it came to it - that you do not want artificial, life-prolonging techniques or procedures applied when you are in a "terminal or end-state condition without hope of recovery." In other words, if you have no quality of life and no hope of regaining any, don’t prolong the circumstance of your death. Although your health care surrogate can make all other decisions, he or she cannot order the withholding or removal of extraordinary measures without either a Living Will or some other clear and convincing evidence that you would not want those means employed. And producing that other evidence would be by going through the courts, precisely what we want to avoid. Read more about Living Wills.
Durable Power of Attorney
In a DPOA, you give someone (an "attorney in fact") the power to act legally on your behalf, in your place, if you become incapacitated. It can be specific (granting power only for a particular act or transaction), or general (granting power to act in whatever ways are deemed necessary). It is effective immediately upon signing or upon the occurrence of a specific event. Contrary to general thought and what the name implies, it is intended to be only a temporary solution for emergency situations and may not solve long-term financial planning problems. Ironically, if an action is filed by anyone questioning your competence, (Section 709.08[c]1, Florida Statutes) the power is suspended until a court rules that the attorney-in-fact can continue to act. In that event, Court approval must be obtained to continue use of the power for specific, "emergency" purposes. Therefore, except for short-term situations, court intervention may still occur. Read more about Durable Powers of Attorney.
Living Revocable Trust
The revocable trust is the most powerful document you can create. It is used to 1) avoid formal guardianships, 2) accomplish uninterrupted management of assets, 3) avoid or minimize probate expenses, particularly when there are out-of-state properties, 4) provide greater flexibility for blended families, and 5) confer legal authority to someone without natural legal rights (e.g., unmarried couples). You set up a trust and place assets into it, and name a person to be trustee (usually yourself). Read more about Living Revocable Trusts.
Last Will and Testament
A will is the document under which you direct the final distribution of your assets - that is, your estate. It has no legal force or use until you have died and it is filed for probate. The purpose of probate is to ensure that your affairs are “wound up” (debts paid, businesses transferred or dissolved, etc.) and the remainder is distributed to the beneficiaries according to your wishes. Thus, each step must be reviewed or approved by the Probate Court. The Florida Rules of Probate Procedure have an expectation that a probate action should be completed within one year; however, that may be extended according to need. Read more about Wills.
WHEN IT’S DONE, IT’S DONE !
The best thing about having a complete plan in place is that, hopefully, you'll never have to completely redo it. We work very hard to create "flexible" documents to provide for the foreseeable contingencies. If a statute changes significantly or you have major changes that require document revision, you can make amendments or modifications relatively simply. Our office will be happy to discuss this with you at length and answer any questions you may have. We serve clients in Flagler and Volusia County in Florida, including Daytona Beach, Ormond Beach, Port Orange, New Smyrna Beach, Edgewater, Deland, Deltona, Pierson, Palm Coast and Flagler Beach.
We look forward to an opportunity to work with you.
