It's The Law
Florida Trust Is Only a Small Part of Estate Planning
I have a will and do not want to go to the trouble or expense of preparing a trust. What estate planning related documents should I consider?
If you had a living trust, you likely would appoint yourself as trustee while you were alive and competent. A successor trustee would serve when you are unable to serve and that trustee would manage the trust assets for your benefit. The successor trustee would step in when you were incapacitated, to pay your bills and otherwise manage your financial affairs.
Without a trust, you may want to execute a power of attorney. A power of attorney grants another person power to exercise rights which would otherwise be personal to you. The power can be as limited or as broad as you desire, but if it is intended to be a back-up in case you are incapacitated, it should be fairly broad. Otherwise, court action may be needed to appoint a guardian, which can be quite expensive, cumbersome and disruptive.
You should also consider making the power of attorney a "durable" power. If not made durable, the power ceases to be effective when you become incapacitated. If made durable, authority extends beyond your incapacity – which would be your intent under these circumstances.
Even if you have a revocable trust, and have designated a successor trustee to act if you are incapacitated, you should still consider a power of attorney. Insurance companies and other third-parties may refuse to deal with the trustee in connection with contracts you have entered into in your personal capacity or which benefit you personally. If you are sick and have insurance issues, a power of attorney may prove critical. If you do not want to give anyone broad power to deal with all of your assets, the power of attorney could be limited to dealing with insurance and similar issues.
In addition to the power of attorney, you should consider advanced healthcare directives. You might want a living will, which is document confirming your wishes with respect to termination of certain medical treatment when you have a terminal condition, an end state condition or are in a persistent vegetative state. The intent of a living will is to avoid prolonged medical treatment that merely extends your life when there is no likelihood of recovery. It also serves to avoid significant financial and emotional cost to those closest to you.
You may want to designate a healthcare surrogate. In contrast to a living will, a healthcare surrogate makes medical care decisions when you lack capacity to make them. These are not generally end of life medical procedures, but treatment decisions that you would make if you could make them. In other states, this authorization may be found in a medical power of attorney.
If you choose to authorize someone to make medical decisions on your behalf, you should also execute an appropriate authorization and release under the Federal Health Insurance Portability and Accountability Act of 1996 (HIPAA). Although the main focus of that statute is to provide for continuation of insurance coverage to former employees, it also imposed significant limitations on disclosure of medical information by doctors and hospitals. Without an appropriate authorization and release, doctors and hospitals may refuse to disclose medical information. A properly prepared HIPAA Authorization and Release form will avoid that problem.
Lastly, you may want to consider an anatomical donation. This is a document that expresses your desire to donate all or part of your body at your death. This can include organ and tissue donations and/or donation of your body for research. You can indicate your desire to be an organ donor on your Florida Driver's License, through your nearest driver's license office. You can also confirm your intent by executing a Uniform Donor Form or including provision in your living will or designation of healthcare surrogate.
If you do choose to prepare any of the forms referenced in this article, you can change them or revoke them at any time.
The documents referenced in this article can be an important part of protecting you and your family. They should be considered carefully as part of an overall estate plan. You should discuss each of them with your attorney and make a fully informed decision as to incorporating one or more of them as part of your lifetime and after death planning.
By: William G. Morris, Esquire
William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.
Questions for this column can be sent to: William G. Morris, e-mail: firstname.lastname@example.org or by fax, (239) 642-0722 or
The Marco Island Eagle
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