The Basics of Estate Planning

Estate planning documents are tools created to allow individuals a sense of security and protection for their wellbeing during their lifetime and for their assets once they pass away. The five main documents that serve as a fundamental foundation to any estate plan include:

1. Last Will and Testament,
2. Durable Power of Attorney,
3. Health Care Surrogate,
4. Living Will, and
5. Pre-Need Guardian Designation.

Last Will and Testament

The Last Will and Testament allows an individual (called a testator or testatrix) to nominate an individual (named a Personal Representative a/k/a an Executor or Administrator in other states) to manage the estate following an individual’s death. A Personal Representative must be a resident of Florida or, if living outside of Florida, related to the testator or testatrix by marriage or blood. The Personal Representative works with his or her probate attorney and the Courts to secure the estate assets, pay creditors, and ultimately, distribute your assets per the distribution plan outlined in the Last Will and Testament. Individuals can also create Testamentary Trusts within the Last Will and Testament to protect an inheritance from creditors, spendthrift family members, minors until they reach adulthood, among other reasons.

Durable Power of Attorney

The Durable Power of Attorney appoints an individual to manage the financial and property needs for another individual. This specific document has a unique timeline in Florida. Springing Powers of Attorney, activated once an individual becomes incapacitated, are invalid in Florida. Durable Powers of Attorneys are activated on the date the document is signed. The agent can manage an individual’s finances and property, if necessary, beginning on the date the form is executed. It is imperative to choose a trustworthy and financially responsible agent to ensure that person upholds their fiduciary duty to protect the assets.

Health Care Surrogate

The Health Care Surrogate appoints an individual to manage someone else’s medical treatment and decisions only if the individual has been found to be incapacitated. The Health Care Surrogate may be called upon to assist with making decisions about someone’s medications, surgeries, treatment, and even end-of-life decisions.

Living Will

The Living Will is commonly drafted alongside the Health Care Surrogate form to ensure providers know that the client’s desire is for his or her Health Care Surrogate to make their end-of-life decisions, not a medical provider, hospitalist, or another family member or friend. This document provides guidance to the Health Care Surrogate concerning preferences about machines that artificially prolong someone’s life, food and nutrition, and organ donation.

Pre-Need Guardian Designation

The Pre-Need Guardian Designation nominates a guardian of your person and property, should a guardianship case ever be filed against you. If a guardianship case is initiated, this designation can be presented to the presiding Judge, outlining who you would like to be appointed as your guardian, if a guardian is needed. The guardian of your person typically has the same role and responsibilities as if they were the Health Care Surrogate, and the guardian of the property typically acts as if they were the Durable Power of Attorney. Guardianship cases are managed by the local Clerk of Courts, and each major decision for someone’s care or finances must be approved by the local guardianship Judge.

Consequences of Not Having a Proper Estate Plan

If you or a loved one do not have a Last Will and Testament and die intestate (meaning without a Last Will and Testament), then your estate is subject to a lengthy and, often times, a very expensive probate case for your family. Your estate will be divided among your next of kin, following the Florida intestacy laws, and may not be divided in the manner you would have wanted, especially if you and your current spouse have a blended family or if you have minor children.

If you do not have a Durable Power of Attorney and become incapacitated for any reason, then no one is in place to manage your finances, assets, or home until you pass away. No one is in place to pay your bills, sell or refinance your home, if necessary, and pay for your care in your home or in a facility. Your lack of planning will very likely require your family to file a guardianship case for you, which is very costly.

If you do not have a Health Care Surrogate and Living Will and become incapacitated for any reason, then no one is in place to manage your medical and mental health treatment, including your end-of-life decisions. Emotions run incredibly high when an illness is diagnosed, especially if it is an end-stage or terminal condition; however, there is no better gift to give your loved ones than a detailed document outlining your wishes if or when you become critically ill.

About the Author

Attorney Rebecca K. Schultz is a passionate and dedicated attorney specializing in estate planning, guardianships, and probate, committed to serving individuals and families and creating a legacy of blessing. She has been helping clients with estate planning needs since 2016, first as a paralegal before attending law school, and now as a licensed Florida attorney.