Estate Planning Documents Other Than Last Will and Testament

Florida law allows for a host of documents beyond the Last Will and Testament to assist you in the event of you death or in the event that you suffer illness or accident that makes you incapable of acting on your own behalf. In this blog I will address the three main and most common documents that I recommend that you have in your estate documents arsenal for the event of possible incapacity. Depending on your life and family situation, I may recommend others to assist you with dependents, with inheritance tax issues or other special situations.

I offer consultations to individuals and families for express purpose of tailoring the estate document arsenal to your individual needs. The topic of proper estate planning and the law of estate planning can not be fully addressed in a blog. It is the subject of many legal treatises!

I am concerned that my client has documents allocating authority in the event that my client can not legal (or physically or mentally) act for his or herself. Just because you are the mother, father, sister, brother, best friend, domestic partner or even sometimes spouse of your loved one, you do not necessarily have authority to make banking decisions, healthcare decisions, business decisions, social service decisions for your loved one without proper documentation. And if your family does not agree on a particular decision or do not acknowledge a relationship to which you are committed. What happens can be chaos to the detriment of you and your lovd ones.

I recommend that you have a Durable Power of Attorney. Florida Legislature, under pressure from the banking industry, governmental agencies, dictates the power that you can bestow to another person to act in the event that you can not. The DPA is effective from the day that you execute an sign the document up to the moment of your demise. In the DPA you name an “attorney in fact” or agent, who will step in your shoes, to make decision as if he/she were you, to the extent defined in the document. This is a powerful document which you may revoke if needed but if you need it, and you are without it, there couple be dire consequences to your family and business. This is a very formal document; please see a trusted estate attorney to allow you to understand the implications and protections of this document.

The next two documents are essentially permissions for your medical team.

The first is the Healthcare surrogate in which you name the person that you want your doctor to take instruction from regarding you medical care if you are unable to make your decision. Maybe you are under anesthesia and a strategic decision must be made immediately or you are legally mentally or physically incapacitated, and a decision must be made. If you are married, normally the doctor will listen to your spouse. But if there is a family disagreement or if you are not legally married, the doctor will not make the choice of whose opinion is final; thi situation is fraught with malpractice for the doctor. In that situation the doctor must use the “best medical practice” which may not be what your wishes would be.

The second is a LIVING WILL. This document allows you to opt out of certain medical practices if you are ill and at the end of your life. You also appoint a person to oversee and insure that these restrictions are properly adhered to by the medical team. Most Floridians remember the awful legal and family consequences in the Terri Shivo case some years ago; that horror could have been avoided in Ms. Shivo had had a Living Will.