An effective and often requested “simple estate plan” for any single or married person with one or more assets includes a Last Will & Testament, a Durable Power of Attorney and a Health Care Surrogate with a Living Will.
A Living Will is a legal document in which you declare, in the event of a terminal or end-of-life condition, specific actions to ensure your family knows your wishes during this difficult situation. This document takes the burden of making painful decisions from family members and explicitly expresses your instructions for treatment.
A Living Will gives direction in critical situations:
- A legal document in which you declare to continue or withhold life prolonging measures that would keep you alive on a machine.
- In the State of Florida two physicians must sign off agreeing nothing more can be done.
- It is a permission slip of sorts that works to avoid disagreements among family members.
- A Living Will is important as it takes the burden of those tough decisions from your loved ones.
Last Will and Testament
A Last Will and Testament is a document which allows you to determine who will handle your property, who will inherit your assets and, if applicable, who will care for your minor children (guardianship). If you have minor children, it is critical that you direct the guardianship of your children if you were to predecease them while they are minors.
Without this preplanning, guardianship will default to the laws of the state and a decision of the court. You may also choose to have a testamentary trust added to your Will to plan when an inheritance would be distributed.
Generally, a Will gives you the power to determine:
- Who will manage and distribute your property and your estate?
- Who will inherit your assets and your estate?
- Who will care for your minor children?
Why do I need a Will?
- If you die “intestate”, the legal term for one that dies without a Will, a court determines who gets your property and who gets custody of your minor children.
- If you have only one asset, including one bank account, a piece of property or a solely owned business, you need a Will.
- If you want to determine specific details such as when an inheritance is received or who receives an asset, you must state this in a Will.
- If you have minor children, you need a Will to appoint a guardian if both parents have passed away.
- If you have a trust you also need a Pour Over Will to direct that any asset inadvertently left out of your trust, should be put in your trust at your passing.
Choosing a Guardian for Minor Children
This is your child and they belong to you. However, in the event of tragic circumstances where the parents predecease a minor child, it is critical to identify who will become the legal guardian. In absence of this document a court can decide who will best care for your child. Do not leave this decision up to a judge, be prepared and plan in advance.
Considerations and reasons for choosing a guardian:
- Consider the best person at this moment. This assists with making a difficult choice. As children grow you can always change your choice.
- You know who you would choose to be a guardian but you haven’t mentioned this or yet named them in a document.
- You know someone who would be an excellent guardian but they are not good with managing money; there are options for this situation.
- You and your spouse have different opinions on who would be the best guardian for your children. In this case consider:
- Do their family values match yours?
- Do their religious beliefs match yours or would they honor yours?
- Do they have the mental, physical & emotional capacity to care for your children?
- Do they have a close relationship with your children? Would relocation be involved?
What is required to create a Will?
Since a will is a directive for whatever you own at the time of your passing, it includes general statements regarding your assets. We review your assets but do not need to compile a comprehensive listing of assets to draft your will.
- You should discuss what is included in your estate (i.e. bank accounts, real estate, investments) and what are your debts (i.e. mortgage).
- You should be able to answer 3 questions:
- Who do I want to handle the distribution of my estate?
- Who do I want to inherit my estate?
- Who do I want to take care of my minor children or my pets, if applicable?
Durable Power of Attorney
What would happen if you were physically or mentally incapacitated and unable to make personal financial or business decisions? A Durable Power of Attorney designates someone you trust to make financial and business decisions on your behalf. This document is valid upon signing, is only valid during life and is necessary in the event of an emergency or incapacity. It gives the appointee the right to act as you in making financial decisions.
A Durable Power of Attorney covers the following,
- A legal document which allows you to designate another to make personal financial and business decisions – essentially managing your “financial” life.
- Important in the event of incapacity – who will pay the bills, taxes, etc.?
- Allows your spouse or designee to access your information or make financial decisions on your behalf and vice versa
- Especially critical if you are single, have a business or have accounts in your name only.
Health Care Surrogate
What would happen if you were unable to communicate your wishes regarding your health care or unable to permit the release of medical records to or from a medical facility? A Health Care Surrogate/Living Will designates someone you trust to have access to your medical records that would otherwise be withheld due to HIPAA privacy regulations.
The surrogate acts as a personal advocate to ensure proper care and comfort during your time of need. With this Living Will, you determine in advance the extent to which you want life-saving measures to be taken. While unpleasant to confront, it removes the stress to your loved ones who are forced to make the decision in absence of any documents.
A Health Care Surrogate is also recommended as a protective measure for parents with college age children. Please ask about our Health Care Surrogate for 18 to 22-year-old dependents.