Of the many legal documents that can be used to formulate a complete Florida estate plan, there are 3 critical Florida estate planning documents that everyone needs regardless of wealth or other concerns.
3 Critical Documents for Estate Planning in Florida
The following 3 Florida estate planning documents are essential for the following circumstances:
Durable Power of Attorney – Disability
Advance Healthcare Directive – Incapacity
Last Will & Testament – Death
Disability and Durable Powers of Attorney
No one likes to think about disability and yet none of us is invulnerable. If we become disabled, a Florida Durable Power of Attorney is needed. There are various types of powers of attorney such as “special” or “limited” powers of attorney, and these are for specific purposes such allowing a business associate to purchase real property or make certain business decisions for a limited purpose in your absence. None of these other powers of attorney will allow your appointee to make business decisions on your behalf if you suddenly become disabled. The “durability” in the durable power of attorney allows it to survive disability and this is fundamental to estate planning.
Advance Healthcare Directives and Incapacity
Advance healthcare directives in Florida are essential if you cannot make your own medical decisions. There are a few terms used to describe the Florida Advance Healthcare Directive, a few of which are medical directive, advance medical directive. This document often includes separate documents known as a Florida living will and a Florida designation of healthcare surrogate. Other names for these two documents are a “Do Not Resuscitate and a Medical Power of Attorney.
What you need to know, is that you need these two medical documents to make up your Florida advance healthcare directive to cover yourself and your family. I also recommend that folks have a number of HIPAA release documents because these are critical for allowing family members access to medical records due to the strict privacy laws in force today under HIPAA will be discussed in greater detail at the end of this chapter.
Several years ago the Terry Shiavo case made national headlines. The gist of the case is that a woman, Theresa Marie Shiavo, was essentially in a coma or a “persistent vegetative state” for many years. An interfamily dispute developed between Ms. Shiavo’s husband (and legal guardian) Michael Shiavo and Ms. Shiavo’s family concerning Ms. Shiavo’s wishes relating to living in a “persistent vegetative state”. This case directly concerned what is addressed in the modern living will and that is your desire for life sustaining medical assistance in certain dire circumstances. Whereas the Shiavo case example concerns the living will component of the advance medical directive, there is also the “designation of healthcare surrogate” or “healthcare power of attorney” which serves to empower someone to make your medical decisions as expressed in the living will. The healthcare surrogate role functions very much like the durable power of attorney with the distinction that the former is concerned with medical decisions and the latter is concerned with business and financial decisions.
Last Will & Testament – Death
The last will and testament in Florida (hereafter “Last Will”) is a testamentary document, meaning that it “testifies” as to the wishes of the deceased person and so it must be deemed reliable.
Certain formalities are required to assure that a last will and testament is reliable which are:
Signature by the testator.
All of these formalities serve 4 main purposes, which are:
Evidence that the document is the testator’s last will and testament
Ritual will alert the testator that it is important and should be carefully considered
Prevention of fraud
Influencing the testator to consult an attorney to prepare it due to the possibility of errors
It is also important that a last will be drafted properly so that there is no confusion in the plain language itself. The last will is essentially and instruction sheet for the Florida probate court so the judge can rightly determine who is entitled to the estate assets.
I hope this gives you a better understanding of why there are several documents that are important for a complete estate plan. Utilizing a Florida revocable living trust is also important in most cases.
Steve Gibbs, Esq.
This is an updated version of an original article dated May 29, 2015.