Four Must-Have Documents
Without them your family is at risk.
by Paul Lemieux, Esq, The Slonim Law Firm, PA
Whenever I’m out and about in town and I’m asked what I do for a living, I mention that I’m an estate planning attorney. The common response I get back is, “I won’t need your services, since I don’t have an estate.” What they don’t realize is that if they own any property… that IS their estate. A recent study showed that a whopping 58% of Americans haven’t done any estate planning. Usually this means that they haven’t had a ‘Last Will and Testament’ drafted. Not surprisingly, as the age range is narrowed to the higher age range, this percentage drops. However…
What I would like to share is the simple fact that it’s not a person’s “estate,” per se, that is most concerning, but that there are other areas of life where an estate planning attorney is really useful. There are a group of documents called “Advance Directives” that should be done for all, regardless of age or assets. These Advance Directives are broken down into: 1) Durable Power of Attorney, 2) Health Care Surrogate, 3) Living Will, and 4) Pre-need Guardianship Declaration. These documents, as a group, allow the creator of the documents to nominate someone to handle their personal matters in relation to their legal, financial, and medical needs. In Florida there’s almost no alternative once a person becomes incapacitated (this doesn’t have to be dementia, but can be as simple as being out of it, such as a stroke, heart attack, or even possibly out of the country). It’s either spend a few hundred dollars on these documents, or thousands with a guardianship, where your family will be spending not just money, but time and efforts with the court being involved for the rest of your life.
A Durable Power of Attorney (DPA) allows a designated person (an “Agent”) to make financial and legal decisions on behalf of the maker. The DPA survives the incapacity of the maker. Even in the event of dementia, stroke, heart attack, coma, Alzheimer’s disease or the like, the DPA remains. Once the document is executed, your Agent would legally be able to access many assets in your name alone or sell an asset with your name on it. According to Florida law, the designated agent is permitted to access your financial information and accounts with the use of a DPA. If you have a DPA drafted prior to October 2011 it should be reviewed by an attorney. A DPA is not generally used to make healthcare decisions.
A Designation of Health Care Surrogate (DHCS) allows you to nominate a person to make healthcare decisions on your behalf in case you become incapacitated. If an individual is unable to give informed consent due to incapacity, the hospital or doctor will look at the DHCS to make decisions on behalf of the incapacitated individual. Florida Statutes provides a pecking order of proxies, who can make your decisions for you if you do not have a DHCS. Please keep in mind that the usage of proxies can cause unnecessary tension and may not even be what you intended for. One source of tension is that if a proxy consists of multiple individuals then it must be a majority agreement for a decision to be made.
A Living Will creates a baseline document that indicates the maker’s wishes regarding their end-of-life care. It provides guidance to the maker’s designated representatives on how to best follow through on the final decisions regarding the healthcare. Florida Statutes have been recently amended to carry new conditions in addition to the standard “terminal condition”, such as “end stage condition” and “persistent vegetative” state. Before a living will can be utilized, two physicians must certify in writing that the maker of the document is unlikely to recover.
A Pre-need Guardianship Declaration allows you to designate a guardian of the person (healthcare matters) and a guardian of the property (legal and financial matters), when and if necessary, due to incapacity. This designation, the pre-need guardian, allows the court to know the maker’s wishes as the choice of guardian and creates a legal presumption in favor of that person. Remember, a guardianship removes a person’s Constitutional Rights – rights such as the right to vote and marry, to the right to contract and make your own medical decisions. It is the MOST restrictive means possible of caring for someone. Guardians have education, financial and tax requirements needing to be submitted as well as being present for any legal proceedings, discuss with an elder law attorney for specificity.
It is my considered opinion that failing to plan how your own person and property will be handled if you are alive, but incapacitated, even for a short period of time, will cause unnecessary harm to you and your family. It’s relatively simple and inexpensive, given the alternative. No one should have an excuse for not having these particular documents prepared.
The Slonim Law Firm takes pride in working closely with clients to ensure that they obtain the best representation for the value. Reach us by calling 321-757-5701 or www.slonimlaw.com.