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06/26/14 It's the Law: The Estate Planning Documents Explained

It's The Law

The Estate Planning Documents Explained

(06/26/14)

Question:

I have been reading on the internet about different types of estate planning documents. I understand someone can have a will or a living trust. I read that it is important to have a power of attorney. Can you explain each of these documents?

Answer:

Estate Planning requires a comprehensive approach. The attorney and client need to fully understand the client's objectives and assets, including manner in which assets are owned. Assets owned jointly or in a manner which pass to someone upon death need to be included in the plan, although they may not be part of the person's estate for distribution purposes. Even the simplest plan can involve unexpected complication, which makes good legal advice in this area important.

Part of an estate planning consultation involves discussion of documents which are actually to protect a client during his or her lifetime. Perhaps the most important of those documents is designation of a health care surrogate. That document appoints someone to make health care decisions in event the principal is unable to do so (i.e. unconscious). The designation can be as broad or limited as the principal desires, and can include specific direction. Under Florida statutes, if a designation does not exist, the spouse of a person is first in line to make health care decisions, followed by children and then other family members if the children are not available. That leaves open the possibility for a court battle between spouse in a second marriage and children of a former marriage or even between the children themselves. We always recommend our clients designate a health care surrogate and an alternate to make decisions in case the surrogate is unable or unavailable.

A health care surrogate makes life prolonging treatment decisions. A living will is a person's direction to withhold or make available medical care, pain relief, nutrition and equipment to assist or replace body functions under end of life conditions. A properly prepared living will clarifies a person's intent with respect to medical care when suffering from an end state condition. The statutes authorizing designation of a health care surrogate and living will are an outgrowth of Florida's policy that an individual have control over decisions concerning his or her medical care. Florida's Supreme Court has also interpreted Florida's constitutional right of privacy as protecting an individual's right to direct his or her future medical treatment.

Florida also allows individuals to appoint a preneed guardian, to serve as guardian if guardianship is needed in the future. Guardianship is generally limited to circumstances under which a person is lacking sufficient capacity to deal with one or more aspects of his or her life, coupled with someone else taking advantage of or abusing the person. But, guardianship proceedings are not limited to such circumstances and an expensive guardianship battle can be started merely because of an inter-family squabble over an elderly relative with money. Appointing a preneed guardian is a disincentive to this battle and may be particularly important in second marriages or where it is possible a person's children will battle to gain a guardianship position.

A power of attorney is another document that should be considered as part of the estate planning process. A power of attorney grants another person authority to act as the principal with respect to authorized matters. Powers can be general and broad or limited to a specific transaction or matter. A power of attorney can be an important tool when someone is in the hospital or incapacitated, as designating someone to make medical decisions does not authorize them to speak with insurance companies or other third parties concerning financial aspects. That can mean an insurance company will not even talk to a spouse.

All powers of attorney end with death of the principal. Simple powers also end when the principal is unable to act (i.e. incapacitated). Most powers of attorney in the estate planning area are entered to help provide a safety net for incapacity of the principal. By using language under the statutes, a power of attorney can be made durable which means it continuous even if the principal is incapacitated. We generally recommend durable powers of attorney for estate planning purposes.

The Federal government adopted the Health Insurance Portability and Accountability Act in 1996. Part of that law created restrictions on access to medical information. To make sure the health care decision maker will have access to medical care information, it is usually recommended the principal also sign a HIPAA release form in favor of the health care decision maker.

All of the foregoing documents deal with medical care and financial issues during life. A last will and testament addresses disposition of assets after death. A valid will in Florida must be written and signed in the presence of two signing witnesses. After death, the will is filed with the court and a formal estate is opened during the process known as probate. Various court filings, accountings and even notice to creditors is associated with probate and the will. Probate is governed by Florida Statutes and probate rules adopted by Florida's Supreme Court.

To avoid probate, many turn to a revocable living trust. This is a particularly good option when a client owns real estate in more than one state, as real estate must go through probate in the state where it is located. Personal property goes through probate in the state where the decedent has domiciled. When a person owns real estate in more than one state, there will be multiple probates. Avoiding the expense of multiple probates is usually a good idea.

At common law, the revocable living trust could not exist. A trust is defined as legal title held by one (trustee) for the benefit of another (beneficiary). If legal title and beneficial interest merged, the trust terminated. Under modern statutes, the same person can be both trustee and beneficiary of a trust during his or her life. That means we can draft a trust under which the person creating the trust is both trustee and beneficiary with complete control over the assets in the trust. Assets are then transferred to the trust and, when the individual dies, a successor trustee takes over and the trust is treated as a separate entity. Probate can be avoided, as the assets are considered to be owned by the trust and not by the decedent. To play it safe, we also draft a will when using a revocable trust as the primary estate planning tool, but the will is intended only to transfer assets to the trust which the decent failed to transfer during his or her lifetime.

Estate planning also includes life planning. Even the simplest plan can involve complications that could be overlooked. Good legal advice in this area is important.

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: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

Other articles of interest can be viewed at our website, www.wgmorrislaw.com.

Categories: Estate Planning, Articles