Your Guide to a Comprehensive Estate Plan
Part 1- Planning for Incapacitation
“Do you have an estate plan? You need an Estate Plan.”
Most individuals, at some point in their life, will be asked this question and likely given some [unsolicited] advice from a friend or family member. In order to answer this question appropriately, you might be asking what actually encompasses an “estate plan.”
Estate planning is the process of writing down instructions and nominating trusted individuals who will take over for you if something happens. A comprehensive estate will plan for two main life events: (1) you are alive but unable to make your own business, legal, financial, or health care decisions; and (2) you pass away. By making a comprehensive estate plan ahead of either or both of these live events, you ensure your loved ones will not have the financial and legal burden of going through guardianship or probate to obtain the same authority you could have conveyed with a thorough estate plan. Please remember estate planning is essential for everyone, regardless of age and wealth.
In order to explain all the documents needed for a comprehensive estate plan, we will writing a two-part series as follows:
- Part I- Planning for Incapacitation. The documents required to authorize who will make decisions for you if you become incapacitated during your lifetime.
- Durable Power of Attorney
- Healthcare Surrogate
- Living Will
- Part II- Planning for Death. The documents required to ensure your property is distributed according to your wishes after your death.
- Last Will and Testament
- Revocable Trust
- Transfer by operation of law such as deeds, joint ownerships, and beneficiary designations.
Phase 1: The Necessary Documents
1. Durable Power of Attorney (POA)
A Durable Power of Attorney is a legal document wherein you nominate a person to make business, legal, and financial decisions on your behalf. This person is also called your Agent. Your Agent should be someone you trust absolutely, as they may have access to privileged information such as your social security number, bank records, tax returns, and property deeds.
The purpose of having an Agent is so someone is authorized to make decisions and take action on your behalf. Your agent may need to make payments on bills, sell your house, purchase a handicap-accessible vehicle, or defend you in a lawsuit. We typically suggest having 2-3 backup agents designated. The agent can be a family member, friend, or advisor.
You can learn more about Durable Power of Attorney online at The Florida Bar.
2. Healthcare Surrogate
A healthcare surrogate is a legal document wherein you nominate a person, your “Surrogate,” to make healthcare decisions if you are unable to make those decisions yourself. Your Surrogate can be a trusted advisor, loved one, or next of kin and should be someone who would make the same healthcare decisions you would make for yourself in similar circumstances.
Your Surrogate can be the same person as your Agent, who you nominated for financial, business, and legal decisions under the Power of Attorney, but using the same person is not required. Whether these two agents are the same or different people is entirely up to you, particularly but you trust one person to make health care decisions for you but do not trust them with access to your bank account.
Your Surrogate is also authorized to access your privileged health information and medical records. Using this information, your Surrogate can provide or withdraw consent for medical treatment, release pertinent medical records, and permit your transfers between healthcare facilities.
3. Living Will
A Living Will is a legal document regarding a person’s end-of-life decisions and their preference whether to remain on life support. The Living Will removes the burden of requiring your loved ones to make a decision regarding ending your life; rather, while you are of sound mind, you make your decision known in writing about your desires to remain on life support.
The Living Will is only utilized when the following conditions are met:
- You are both physically and mentally incapacitated and cannot communicate your wishes regarding medical treatment; and
- You either:
- have a terminal illness, or
- have an end-stage condition, or
- are in a persistent vegetative state; and
- Your treating physician plus a second physician unanimously agree there is no reasonable medical probability your life will be sustained without the breathing and/or a feeding tube.
Upon all three of these conditions being met, a metaphorical clock will be ticking for how long you remain on life support; without direction or a valid Living Will, the medical team will continue to provide life support to you. Your medical team will seek out the opinion of your next of kin, who will be shouldered with the task of determining the appropriate time to allow you to die naturally. If you do not want your next of kin to determine the length of the clock ticking, a Living Will will override and control what happens next.
You may choose any length of time to remain on life support once the three conditions above occur. Some people choose to have life-support removed right away, while others may choose a week, a month, or a year. There’s no right or wrong answer. However, we often advise our clients with families who live outside of Florida to give at least 72 hours before removing life support that way far-away families can travel to say goodbye. Particularly in the wake of COVID, after experiencing restrictions in place, you might want to give family a longer time.
What happens if I do not have documents from Part I:
Without authorizing individuals to act on your behalf in the event of incapacitation, your loved ones must file in court to obtain guardianship. A guardianship is an arduous process to obtain a court order giving your loved ones the right to make decisions for you. The process requires resources like time and money and ensures your family must give frequent updates to the Court on your condition throughout the duration of the guardianship. This can all be avoided with a comprehensive estate plan.
Regardless of your age, net wealth or occupation, a comprehensive estate plan is essential. Your planning and preparation will save your loved one’s time, money, and emotional strife in what is an already draining situation. If you are considering making a healthcare surrogate designation, power of attorney, or living will, McCart & Tesmer can help. Please call 813-498-2757 or email info@McCartTesmer.com for a free consultation. Stay tuned for our next blog, which will break down Part 2.