Estate planning is necessary for self-determination of how your property will be handled when you pass away. Without a Will in place, your estate will pass to heirs according to the law. A part of your estate planning involves powers of attorney that operate during life to manage your affairs and avoids a costly guardianship proceeding. Elder law is an area of law where different planning techniques may be necessary to preserve assets in a well spouse.
Third party special needs trusts may be created to protect assets to enhance quality of life for a disabled person.
The basic estate plan includes a Last Will and Testament, a Durable Power of Attorney for financial decisions and a Living Will and Health Care Surrogate Designation for medical decisions. You may also consider organ donation.
Why do I need a Will? What is estate planning?
Estate planning is preparing in advance for incapacity and end of life decisions. By planning ahead, you will alleviate the burden on family members making these decisions for you if you fail to plan. Estate planning may reduce the cost of probating your estate at your death or may be avoided altogether. A properly executed power of attorney avoids costly guardianship proceedings. Most important, you are in the driver’s seat and you can decide who will make decisions for you, how certain events will be handled and who gets your property when you are no longer here.
What is a Will?
The Will is the centerpiece of any estate plan. A person may create a Will as early as the age of 18. A person has legal capacity if the person knows the nature and extent of his or her property, who are the natural objects of his or her property, understands the disposition which he or she is making of the property, appreciates these elements in relation to each other and forms an orderly desire as to the disposition of his or her property. A Will created for a person domiciled in the State of Florida must be signed with certain formalities in order to be valid and may only be altered by another written document signed with the same formality.
What is a Power of Attorney?
A General Durable Power of Attorney allows a person to choose an “attorney in fact” who will act as an agent to protect the individual’s property during any period of incapacity. The Durable Power of Attorney will allow the designated attorney in fact to access bank accounts to pay bills, to gain access to insurance information to contract for care that may be required and to do any other actions to handle the financial affairs of the incapacitated person.
What is a Living Will? What is a Health Care Surrogate? What is a Medical Power of Attorney?
A Medical Power of Attorney appoints an “attorney in fact” to make medical decisions on behalf of an incapacitated person and other end stage decisions, such as whether to remove the person from life support, withhold nutrition or remove a feeding tube, etc. Typically, if a person will be removed from life support or nutrition is to be withheld, then at least two physicians must consent that it is in the best interest of the person to pursue that course of action.
Both Durable Powers of Attorney become effective immediately upon signing by the person giving authority to an attorney in fact. A Durable Power of Attorney is effective solely through a period of incapacity and during life, andwhen the person granting the power dies there is no valid authority to operate under the power of attorney. A valid Durable Power of Attorney will avoid the need and the cost of formal guardianship proceedings that may otherwise be required.
What is a revocable living trust? Why do I need a living trust?
A Trust can be created for certain specialized needs, such as property ownership in multiple states, tax planning purposes and in the event that you have children from a prior marriage and a current marriage and you want to provide for both.