Health Care Advance Directives are legal documents important in conveying instructions as to many aspects of your health care, including your ability to appoint certain individuals to make health care decisions for you when you are no longer able to make decisions for yourself. An updated "health care surrogate" authorizing a friend or family member to act on your behalf is crucial. In some cases unless the document includes HIPAA authorization certain health care providers may refuse to disclose any medical information to the surrogate named under the document. Furthermore, many older forms fail to include current (or any) contact information for the health care provider to contact the surrogate in case of an emergency. Through a "Living Will" if two (2) physicians certify that is unlikely that your condition will improve you can indicate what , if any, heroic measures are to be taken to keep you alive in the event of an "end of life" situation.
You appoint a trusted friend or family member as your attorney-in-fact (or agent) with the immediate authority to make financial decisions on your behalf. In many cases, a properly executed Florida Durable Power of Attorney can provide flexibility as to your estate plan, such as the ability to make gifts on your behalf for tax purposes or to create, amend or revoke a trust. Because the Durable Power of Attorney went through some dramatic changes any documents executed prior to October 1, 2011, should be reviewed to determine their effectiveness. Even though the document might still be legally valid it may be beneficial to create a new Durable Power of Attorney.
Any new residents of Florida or snowbirds with health care documents power of attorney, will, trust or Durable Powers of Attorney executed in another state should consider executing new Florida documents because the laws in each state may vary considerably.
Everyone who is of majority age (age 18 in Florida) should have a properly executed Last Will and Testament. A properly executed Last Will and Testament prevents an individual state from determining how the deceased's assets are to be distributed. Because most state intestate laws distribute a decedent's property to his or her family members this can become a major issue when someone dies without wanting their family to inherit their things. Further, if an individual would like to devise their assets to one or more loved ones who are not their relatives then not having a valid Last Will may prevent that from happening. Dying without a Last Will could also prove to be much more complicated should minor children exist. In the event both parents were to die simultaneously without naming guardians under their Wills to take care of the children then the court will make the decision. It is through the language in the Last Wills or in properly executed Preneed Guardian document that you can advise the Court as to who should act on behalf of your children.
Two of the biggest misconnections that clients have regarding Wills is that they will not only avoid probate but will ensure that the "government" will not get their money. In reality a Last Will does not avoid probate since most states, including Florida, require formal court authority to act on behalf of assets owned by a decedent in his or her individual name that were not payable on death, jointly owned or owned or payable to a trust. Further, a Last Will does not prevent the IRS or individual states from collecting estate tax or inheritance tax. Any assets owned by a deceased individual, including those assets not subject to probate such as jointly owned assets and assets titled in a decedent's revocable trust, may be includible in his or her estate for estate tax purposes.
Our firm usually recommends that our clients execute a certain type of Last Will and Testament that works in conjunction with a Revocable Trust, namely a "Pour Over Will". The Pour Over Will provides that any property held in the decedent's individual name at the time of death will be distributed to his or her Revocable Trust. Like any other Last Wills, the property devised under the Pourover Will must go through probate. However, if the decedent's assets were titled (or funded) into the Revocable Trust during the decedent's lifetime then there should not be any need for a probate to take place. The Pour Over Will is still needed in the remote possibility that certain assets did not make it into the Revocable Trust prior to the decedent's death.