Who needs an estate plan?
Everyone. People of all ages and all walks of life benefit from having an estate plan. In the unlikely event you are in an accident and need assistance making financial and medical decisions, documents, such as a durable power of attorney and health care surrogate, executed
prior to the tragic even can keep you from becoming a ward of the court requiring the supervision of a judge to monitor the activities of a court appointed guardian. In the event you may need someone to take care of your children, a pre-need guardian designation executed and filed prior to any tragedy gives you a voice in who should be appointed.
There are several different types of documents that can be used to design a plan that may be suitable for decades. As we age, Medicare and other types of concerns require a review of the plan. At some point, you may become concerned with who may assist you in your daily living as
well as who shall provide care and protection of adult children with disabilities or adult-children with creditor problems. Estate plans consider protections from creditors, predators, and a host of other issues not just for the person executing the documents but also for the people he or she hopes to benefit in some meaningful and considered manner.
What are the essential estate planning documents?
Most estate plans contain the following documents:
Last Will and Testament
Health Care Surrogate
Durable Power of Attorney
Each document is different and governed under a specific set of statutes. Whether a probate case needs to be opened after someone dies is determined on a case by case basis.
Last Will and Testament.
A Last Will and Testament is the primary estate planning associated with probate cases filed in the circuit court of the county in which you are domiciled. However, by having a last will and testament, one can sometimes avoid having to open a probate estate to move personal
property, such as cars and boats. For instance, in Florida, the Department of Motor Vehicles will accept signed affidavits and a copy of a will that has not been probated to transfer title to vehicles, vessels, trailers, and other types of personal property that have titles regulated by it.
Thus, having a will does not mean you family is necessarily forced to probate your estate. In the event an estate is needed, a last will and testament designates the person you want to act as your executor/personal representative and enumerates your wishes are carried out in the handling of your estate’s affairs. It provides peace of mind in knowing you have thought through an estate plan that will be followed in the settling of your affairs—from explaining how you would like your body handled to who should handle your affairs, it is a power document that speaks for you after death.
A living will is not a trust and it is not a will in that it does not operate after death. It is document that works only while you are technically still living in the care of your healthcare provider. A living will has nothing to do with your property and the disposition thereof. Rather, a living will is a document that directs healthcare providers as to your wishes regarding extraordinary measures in keeping your body supported on machinery, known as life support apparatus, when you are unable to speak on your own behalf and specific statutory circumstances are present and attested to by your physicians. It is oftentimes referred to as the “pull the plug” directive but that does not do justice to the care, consideration and on templation that go into creating a document unique to you and specific to your desires that will be honored by your loved ones and healthcare facility.
If you are 18 or over, you are never too young to have a healthcare surrogate. You may name a parent or your parents; you may name a significant other; you may name a close friend. The fact is, the Legislature allows you to name someone to assist you in making healthcare decisions, to pickup your medications, to receive healthcare records. Due to federal privacy laws referred to as HIPAA, your family could exclude your ignificant other from your bedside without one. It is right that all adults should exercise and update as needed.
Powers of Attorney.
There are a variety of types of powers of attorney. What they all have in common is the ability for the Principal (person executing) to designate an Agent (person who can acting for the Principal) to handle a task or tasks, such as financial transactions, buying/selling a house, and other acts on your behalf. These documents, whether general, limited, specific or durable, ALL terminate upon your death. No one can perform any act on your behalf once you are dead under a power of attorney. Thus, the confusion with the term “durable” power of attorney. A durable power of attorney survives the principal’s incompetency, such as going under anesthesia for a couple of hours. It also survives in the event you have dementia and may survive when you are declared incapacitated by a court. However, if court action results, a court must decide whether the document is an adequate alternative. In those cases where it is not, the document will be voided by court order and powers to act on your behalf over your property shall be given to the person appointed as your guardian. Designating a pre-need guardian can offer protection in that scenario.
Florida Statutes allow Florida residents to name pre-need guardians for themselves and for their children. The court reviews your designation, the qualifications of the person selected, and hears testimony in making an appointment. They are considered highly persuasive and an essential part of estate planning. For minor children, both parents if living must execute a pre-need guardian designation. These documents allow a court to review who you desire to be the guardian over you and/or your child.
Forms are distinguishable from estate planning. Ms. Kerkhoff takes the time to understand your concerns, needs, and desires. Although many clients execute the same types of documents, the plan that results should be one that is unique to your situation. Thus, your friends may have a last will and testament and a living will, but the contents of those documents should reflect their wishes just as yours should reflect what you desire. Each document should express the intent of the person executing the document. The proper exercise of the formalities of executing various documents governed by statute and used as part of the estate plan are also essential to the overall validity of the package.