All I Need Is A Will, Right?
When people think of estate planning, the document most people think of is a Last Will & Testament (often simply referred to as a Will). One of the crucial needs for adults, regardless of age, is to perform some basic estate planning. This article briefly addresses the importance of a durable power of attorney and advanced directives for financial and medical affairs.
I mentioned that these documents are important regardless of age because we all run the risk of illness and disability. I hate to think of this but what if I was involved in a car accident leaving work today. If I was, who would make medical decisions for me if I was unconscious? Who would handle my financial affairs? What if I was irreversibly brain dead? Would I want to be kept alive by machines? As you can imagine, these are major issues to contemplate. At the very least, all of us should make some preparations for such events.
A durable power of attorney is a document which allows a designated agent (an “attorney-in-fact” also known as a “power of attorney”) to perform certain specified acts on behalf of the principal, the person giving the power to someone to act for him or her. The Florida Legislature recently modified Chapter 709’s power of attorney language which has resulted in greater scrutiny over the language used in the document. This is having a dramatic and practical impact on families. Recently, I have witnessed adult children encountering obstacles while trying to handle their duties as power of attorney because the power of attorney document did not have adequate language.
In addition, it is important to have a contingency plan in case the agent you chose cannot act for some reason. For example, while my document names my wife as my initial agent, it also names my sister as a backup.
A health care surrogate is a document that designates a person (the “surrogate”) to make health care decisions if one is unable. Chapter 765 of the Florida Statutes governs this area. Again, one wants to specify what decisions he or she wants made on his or her behalf. Analogous to a backup power of attorney, it is important to consider naming a backup surrogate. Quite often, married couples will name each other but forget to name a backup. What if they are in an accident together or fall ill simultaneously?
A living will is a document stating a person’s wishes for end of life decisions. This document describes whether one wants to have artificial measures utilized when he or she is incapacitated, has a terminal condition, and a physician determines there is no reasonable medical probability of recovery. Some people do not want any artificial means to keep them alive, such as feeding tubes to feed or hydrate a person. Others take the position to keep their body functioning no matter the prognosis.
As you can imagine, these documents are critical when needed. Remember, if you do not have these documents, the Florida legislature does its best to guess at what you would want. However, that outcome may not be what you personally desire and may not fit your particular situation.
If you have questions as to whether you, or your loved ones, need a Last Will & Testament or need to change its language, I suggest that you contact an experienced and knowledgeable Elder Law Attorney (one that is Board Certified in Elder Law most preferably) for such assistance.