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 health care decisions.
A Designation of Health Care Surrogate
(DHCS) allows you to nominate a person to
make health care 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.