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The 4 MUST HAVE Estate Planning Instruments

by / Wednesday, 14 October 2015 / Published in Estate Planning, The Blog
patients and doctor

Am I being a little bit dramatic? Probably. As you really may not need any estate planning documents at all, but I can assure you your family will be eternally grateful to you for properly planning and making their life easier. Let me tell you, I have seen families and fortunes forever lost when someone fails to have these simple and low-cost instruments in place, prior to a medical crisis or death.

These Must Have instruments are:

  • A Last Will and Testament
  • Durable Power of Attorney
  • Living Will
  • Health Care Surrogate Directive

Let’s look at each one individually.

Last Will and Testament

last willEveryone knows what a Will is and what it is used for – essentially this is an expression of who you wish to receive your assets upon your death. In most states, if you fail to have a will, the State is happy to dictate who should receive your assets (nice of them), but that may not be what you intended. And of course there will be much greater costs and expenses to your family to complete your “intestate” (estate without a written will) administration. Good times! Ronald Reagan was on the money when he said, “The 10 scariest words in the world are, ‘Hi, I’m from the government and I’m here to help.’”

Durable Power of Attorney

A power of attorney (POA) is an instrument in which you grant another person the authority to sign your name and to conduct legal matters on your behalf. Ordinarily, a power of attorney is automatically revoked if you become incapacitated; however, a “durable” power of attorney contains special language authorized by Florida statute, which provides that it continues to be effective even though you are incapacitated. Any power of attorney, including a durable power of attorney, is automatically revoked upon your death. Usually, this instrument can be used in lieu of a cumbersome court directed, controlled and expensive guardianship.

A Durable Power of Attorney should be granted cautiously and given only to people in whom you have an absolute trust and confidence, as they enable your designated agent or attorney-in-fact, to access your bank accounts, borrow money in your name, make gifts of your property, etc. You are bound by the acts of your agent.

Florida Living Will

living willA living will is an expression of your desire that artificial life support be withheld if you are terminally ill, or if you have an end-stage condition and death is imminent, or if you are in a persistent vegetative state and there is no hope of recovery. In addition to the other forms of life support, you also make an election as to whether or not you want food and water withheld. Two physicians must first determine there is no medical treatment that will help you recover and there is no medical probability of recovery. If that threshold requirement is met, then the Living Will is your written rejection of life-prolonging medical treatment. The document is similar to, but not the equivalent of, a Do Not Necessitate Order (DNR). A DNR is only issued by a physician after the patient approves the directive. In times of great emotional despair, your family will want to know exactly what you have deemed to be your wishes. This instrument will give them strength and comfort in carrying forward with your decision.

Healthcare Surrogate Advance Directive

Chapter 765 of the Florida Statutes permits you to appoint another individual as your Healthcare Surrogate, to make medical decisions on your behalf, if you become incapacitated. A Florida Living Will is limited only to situations in which you are terminally ill. The Healthcare Surrogate Advance Directive, on the other hand, applies any time you are unable to make a medical decision yourself. Like the Durable Power of Attorney, the Healthcare Surrogate Advance Directive often eliminates the need for the court to establish a guardianship on your behalf, in the event of your incapacity.

As you can see, these 4 Must Have instruments each serve a different, yet vital, role in your medical and estate plan. So it’s time to stop procrastinating and get your estate in order, as we all know that death never takes a holiday and nor does the tax collector (but proper estate planning can also help keep them away).

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