Estate Planning typically involves the drafting and execution of Testamentary Documents, Health Care Related Documents and Powers of Attorney. Testamentary Documents, in layman’s terms are documents such as Wills or Trusts which state what is to happen to your assets upon your death. Health Care Related Documents are medically specific powers of attorney that apply in certain situations as set forth in more detail below.
Last Will and Testament
All property an individual owns in his or her own name at the time of death must pass through probate in order to be distributed to heirs or beneficiaries. A Will is your directions to the court on how your property should be distributed upon your death. If you do not execute a Will, the State of Florida has legislation in place which dictates who will receive your assets. Executing a Will allows you to control who receives your assets after your death.
Wills are also useful in establishing trusts for beneficiaries, appointing guardians for minor and/or incapacitated children and directing your funeral desires.
Revocable Living Trust Agreements
A Revocable Living Trust Agreement is a useful tool in avoiding probate and helping to avoid the necessity of a guardianship in the event of your incapacity. Living Trusts work by transferring all of your assets into the trust thereby avoiding the necessity of probate in the event of your death.
In addition to maintaining control of your assets during your lifetime, a Living Trust allows you to appoint a Successor to act on your behalf in the event you are determined to be incapacitated. A Living Trust also sets forth your directions for distribution of your assets upon your death.
A Living Will allows you to choose whether or not you wish to have your life artificially prolonged in the event you have a terminal condition, an end-stage condition or are in a persistent vegetative state, as defined by law. You should appoint a surrogate in your Living Will (who may be the same as your Health Care Surrogate) to insure that your wishes are followed.
A Living Will should not be confused with a Last Will and Testament which appoints a personal representative and disposes of property after death.
Health Care Surrogate Designation
Probably the single most important document you can have is a Health Care Surrogate Designation. This document allows you to appoint an individual to be authorized to make medical decisions on your behalf in the event you are unable to make your own medical decisions.
HIPAA is the Federal Privacy Act that restricts the ability of health care professionals to discuss an individual’s medical care and/or condition with anyone other than the individual being treated. By executing a HIPAA Release, you have the ability to authorize individuals you have chosen to obtain medical information on your behalf.
Durable Power of Attorney
A power of attorney is a legal document delegating authority from one person to another. In the document, the maker of the power of attorney (the “principal”) grants the right to act on the maker’s behalf as that person’s agent. What authority is granted depends on the specific language of the power of attorney. A person giving a power of attorney may make it very broad or may limit it to certain specific acts. A durable power of attorney remains effective even if a person becomes incapacitated. There are certain circumstances where it makes sense to execute a Durable Power of Attorney as part of a comprehensive estate plan. We can help you decide whether you need a Durable Power of Attorney.