By planning ahead, you have the ability to control your property while you’re alive and well; provide for yourself and your loved ones if you become incapacitated or disabled; minimize costs related to fees, court costs, and taxes; and allows you to give what you have to who you want, the way you want, and when you want. This is an area of life where the term “an ounce of prevention is worth a pound of cure” really is true.
Durable Power of Attorney
One of the biggest myths we hear is that “I have a Will, therefore I don’t have to worry about probate.” Now, it’s true you don’t have to worry about probate (if you’re the one who’s passed away…), but having a Will doesn’t mean your loved ones get to avoid probate. True, having a Will is better than not having a Will (also known as intestacy), as you get to say who gets what, but the purpose of the Will is to provide written instruction to the judge. In fact, the word “Will” in Latin means “to prove.”
Now, probate isn’t evil and it’s not the end of the world if a probate has to be opened. That being said, it is expensive, time consuming, and of course, it all becomes public record. You plan to write someone out of your Will? That’s totally your right, but if a probate is opened, that disinherited person will be able to see that you intentionally excluded them (which may actually push you towards probate, we're not judging, just informing). There are ways to avoid probate and we can absolutely discuss those options during our meeting!
We could write all sorts of books about trusts, in fact, several people have. This is a solid attempt to give you a starting point in understanding how a trust might fit into your Estate Plan. Basic trusts include Revocable Trusts, Irrevocable Trusts, & Testamentary Trusts, just to name a few.
Revocable means the terms can be changed by you or those you grant that power to in your trust. A Revocable Trust becomes irrevocable when the Grantor passes away.
Irrevocable means the terms are typically set once the trust is executed and even you, the Grantor, cannot make changes. A Testamentary Trust means a trust created at your passing, usually through your Will.
Trusts give you the ability to maintain control of your estate, provide for what should happen if you were to become incapacitated, can be designed to give your assets to who you want, when you want, and how you want, and a trust (usually) avoids probate.
Trusts can be designed to protect your assets, provide for your pets, save you taxes, take care of those you love who have special or medical needs, and assist you with long-term care planning. We can discuss your specific needs when we meet.
Appoints an Agent, someone who is authorized to basically step into your shoes to manage your day to day affairs. This typically includes handling financial transactions, legal matters, and providing for your future and your family.
In Florida these powers are granted to the Agent as soon as you sign the document. This is designed to prevent any delays in taking action on your behalf- for example, waiting for the courts to determine whether you’re incapacitated and who your guardian should be.
The language in your Durable Power of Attorney is vital, especially in the event you need long-term care planning or Medicaid. Medicaid has been denying certain planning methods if an Agent is trying to qualify the Principle (you), but the Durable Power of Attorney does not specifically grant that power.
If you haven’t had your Durable Power of Attorney drafted, or if it’s been awhile since you have, give our office a call to ensure it includes the language needed to follow through with your plans.
Health Care Surrogate
This is also known as a Healthcare Power of Attorney. This document allows the person nominated to manage your non-end-of-life health related decisions. The person nominated has no authority to manage any financial or legal issues, only medical decisions, and only if you are no longer able to communicate your wishes. They can advocate that you remain in home (if that’s your wish) and assist with pain management treatment options. They cannot override your wishes if you are still able to communicate your desires, they only get to step in when there’s a problem and you can’t communicate.
**I like to give the example that if you're in a freak roller-skating accident, unconscious, and the doctors need to amputate the third toe on your left foot… That’s the type of decision making issues your Health Care Surrogate may have to make. This should be someone who knows you and can handle emergencies and medical concerns without it adding too much stress.
This is the document that states what you want to have happen if you are facing an end-of-life situation. This includes whether you want to be on life support and ventilators, artificial nutrition or hydration, and then what to do after you’ve passed away like organ or tissue donation. You do not nominate anyone to do anything in this document, it simply states your wishes should the situation arise.
Do not discount the importance of this document simply because it’s less involved than some of the others though. Those living in Florida in the early to mid 2000’s likely remember the case of Terri Schiavo, a woman who suffered a cardiac arrest at age 26 and then lived in a vegetative state for 15 years. A massive legal battle occurred between her husband and parents, each wanting a different outcome. Had she had a Living Will, that battle may have been avoided. But, who thinks they’ll need a Living Will at age 25?
Guardian of Minor Children
If you have minor children, this component is vital for you to have in place. While it is common to include a section covering who should serve as Guardian of any minor children in your Will, the state of Florida allows what is known as a “separate writing” which covers only the nomination of a Guardian. This is helpful as Florida also requires you to record your document nominating a Guardian. Having a separate writing, a document only addressing this issue instead of including a section in your Will, makes life easier because your Will may change multiple times due to a variety of reasons and each time a new copy would have to be recorded so that the Guardian section is kept up to date. By having the separate writing, you would only have to update what was previously recorded if the person(s) nominated were to change.
An additional component to be aware of is that you could nominate one person to oversee the care and raising of the children, and an entirely different person to oversee any assets or money you’ve left for the benefit of the children. This could be a good option if you have someone you know would love and care for your children, but maybe isn’t that great/experienced enough with managing finances. There are positives and negatives for this design, but we will discuss all the options when we meet.