When it comes to estate planning, it is often easy to miss important planning elements and leave yourself vulnerable to a whole host of potential problems. Often times, people make out their Last Will and Testament or create a trust and assume that they’re done. In reality, however, they’ve usually just laid the foundation for a successful estate planning strategy. To truly cover their bases and protect their best interests, those individuals also need to have incapacity planning to ensure that vital decisions continue to be made even when they lose the capacity to make them on their own. A Florida power of attorney lawyer can help to provide that protection and complete your estate planning strategy.
What Does a Complete Estate Planning Strategy Look Like?
For some, estate planning might seem to require little more than a will to bequeath certain assets to their heirs. Many people simply assume that if they have few assets to leave to their heirs, then there is no need for other planning tools. The problem with that assumption is that there is more to end-of-life planning than the simple matter of determining who gets what when you die. For while you can have your will or trust – or both – and feel confident that your family will receive its inheritance when you die, neither of those things provide assurances that your family will be cared for if something tragic happens to you before you die.
Comprehensive estate planning considers not just post-death distribution of goods, but things like asset protection, Medicaid planning, and incapacity planning. It takes a holistic approach to your estate planning, and tries to ensure that your assets and interests are secured in ways that provide maximum benefit to you and your family. And while power of attorney is not a necessary component of asset distribution plans, it can be vital for ensuring that your interests are safeguarded in the event of your incapacity.
What Happens When You’re Incapacitated?
It’s pretty much a given that you probably don’t give much thought to the possibility that you might one day be rendered incapable of legally making your own medical and financial decisions. Nevertheless, this is something that happens to people just like you on a regular basis. People get injured or become ill, and sometimes those injuries and illnesses leave them incapable of decision-making. At other times, diseases like Alzheimer’s and other forms of dementia can make it difficult for people to make their own decisions. That typically results in a declaration of incapacity, and requires someone else to make decisions for the incapacitated patient.
If you have the right powers of attorney documents in place, then the decision-making power will pass to the person you’ve named as your attorney-in-fact. That can provide relatively seamless continuity in your financial and medical decision-making. Your agent will have been provided with instructions about the type of care you want and need, and the appropriate management of your financial affairs. This is especially critical when you are the primary source of financial stability for your family, since it means that bills will continue to be paid and your loved ones won’t suffer financial hardship.
On the other hand, a whole host of problems can result from a failure to create powers of attorney and designate an attorney-in-fact. As a general rule, a declaration of incapacity will then result in the matter being brought before probate court so that a guardian can be appointed to manage your affairs. That could end up being your spouse or adult children, but there are no guarantees. Ultimately, the court will use its best judgment when selecting someone to act on your behalf.
As you might expect, there are some serious drawbacks to the court-appointed guardian response to incapacity. Often times, bills that need to be paid can be delayed while the court process plays out. There can be confusion among medical staff, since there is no one to make medical decisions until the court acts. Finally, that court process can be costly, and those costs end up being paid out of your estate.
To avoid those negative consequences, it is important to plan ahead with sound incapacity planning that uses powers of attorney to ensure that your interests remain protected during any injury or illness. By using durable power of attorney, you can name an agent to act on your behalf for medical decisions and financial matters, and that person – or persons if you choose to use two different agents – will act with all of the authority you would possess if you were making the decisions yourself.
In Florida, you should have a Durable Power of Attorney for financial matters and health care advance directives to empower someone to manage your health care decisions if you become incapacitated. Those advance directives can include both a living will and a Health Care Surrogate Designation if you wish. Unlike a power of attorney, the health care surrogate document only becomes active when two doctors determine that you can no longer make your own decisions.
Along with other estate planning tools like your trust and will, a financial power of attorney and health care surrogate designation can ensure that your assets and interests are protected both in life and after death. These are complex matters, however, and something that you should only undertake with the help of an experienced power of attorney lawyer.
At Robert Kulas Attorneys at Law, our estate planning team understands just how important the power of attorney really is within any comprehensive estate planning strategy. We can help you to develop the plan you need to provide important asset and incapacity protection, while avoiding the costs and delays associated with guardianship proceedings. Remember, your will and trust planning is just the first step to sound estate planning, and may not be enough to protect your family if you become incapacitated. The right power of attorney strategy can help to complete your plan. To find out more about how we can help you with these and other vital estate plan issues, contact us online or call us at (772) 398-0720 today.