Regardless of the size of your estate, Estate Planning is the only way to control what happens to you and to your property in the event of incapacitation or death. Having a proper plan in place with the appropriate legal documents allows you to individualize and meet your personal circumstances and needs and reduce and eliminate uncertainties and possible court intervention, which can be quite long and expensive.
What are Advanced Directives?
The term Advanced Directives generally refers to a Living Will, Health Care Proxy, and Power of Attorney.
These documents are designed to offer direction and guidance to your family and love ones should you become unable to make medical and financial decisions due to an illness or accident.
Having these documents in place can be invaluable for avoiding family conflicts and possible court intervention if you become unable to make your own decisions. These documents are generally prepared along with your other Estate Planning documents.
Health Care Proxy
A Health Care Proxy is a document in which you designate an individual to make decisions concerning your health care if you lose the ability to make decisions yourself. By appointing a Health Care Agent, you make sure that health care providers follow your wishes. Your Agent can also decide how to apply your wishes as your medical condition changes.
A Living Will is a document that allows you to express your feelings about future health care decisions regarding your own body, such as the right to refuse life-sustaining treatment or to have such treatment terminated. Many persons want to make clear their objection to unwanted medical measures in advance; others wish to state that they favor measures to have all available kinds of life-sustaining treatment administered.
Typical medical situations include: terminal conditions and permanent unconsciousness (persistent vegetative state) or being in a state of consciousness but with irreversible brain damage such that you are likely to never regain the ability to make decisions and/or express your wishes. The Living Will can also be used to provide for other wishes regarding health care and treatment.
Durable Power of Attorney
A Durable Power of Attorney is a document in which you (the “principal”) name another (the “agent” or “attorney-in-fact”) to handle financial and business matters on your behalf. This type of Power of Attorney is effective immediately upon execution and continues to be effective if you lose the capacity to manage your affairs. Some powers granted by the Principal to the Agent may include the power to engage in transactions relating to real estate, banking, business operations, insurance matters and other personal affairs. A Durable Power of Attorney terminates upon your death. The Agent you appoint should be a trusted family member, proven friend or a professional with an outstanding reputation for honesty. Florida’s Power of Attorney Act (Florida Statute, Chapter 709) was significantly revised in October, 2011. If your Power of Attorney is an out of state document or is more than a few years old, you should consider having it reviewed.
What is a Last Will and Testament (Will)?
A Will is a written declaration, signed by the testator or testatrix and witnesses, that meets the requirements of Florida law, by which a person can direct the disposition of his/her property upon death. Some important functions of a Will:
- Provides for disposition of property after death (including specific personal property)
- Appoints a Personal Representative (Florida’s term for an executor) and successor Personal Representative to administer the estate
- Appoints a Guardian and successor Guardian, if minor children are involved
Do I need a Will?
A simple Will is generally the easiest and least expensive estate planning tool (other than beneficiary, transfer on death and payable on death designations). If you do not have a Will, the state of Florida will determine how your property will be distributed, based on state intestacy law, which may or may not be consistent with your wishes.
Revocable Living Trust
There are many different types of trusts with different purposes, each accomplishing a variety of goals. A revocable living trust is one type of trust often used in an estate plan. Whether a revocable trust is an appropriate estate planning tool depends on your individual circumstances.
By transferring assets into a revocable trust, you can provide for continued management of your financial affairs during your lifetime (when you’re incapacitated, for example), at your death and even for future generations. Your revocable living trust can allow you to retain control over your assets, avoid probate, and reduce the chance that personal information will become part of public records. Every Revocable Trust has four important components:
- The Settlor (the person creating the trust)
- The Beneficiaries of the trust (the person(s) designated to receive the remaining trust assets)
- The Trust Res (assets transferred to the trust)
- The Trustee(s) – (the person(s) who will manage the trust assets and administer the trust)
A Note on Out-of-State Wills:
If your Will was prepared outside the state of Florida, it is recommended that it be reviewed by a Florida estate planning attorney to determine if it meets certain Florida statutory requirements and to address any other potential issues. State laws vary.
Not sure if you need a Will or a Trust? Already have a Will made in another state? Contact us at (941) 575-5142 for an initial consultation to discuss your specific needs and concerns.