Can you answer the following with absolute certainty? We’ll pose five quick questions.
- Who will make your health care decisions if you’re unable to make them?
- Who will sign legal documents for you if you are ill, incompetent or otherwise unable?
- Will your doctors follow your wishes regarding end-of-life care?
- Who will be granted custody of your children?
- Who will receive your assets someday?
Those might sound like heavy topics, but you shouldn’t view them that way.
Instead, it’s best to see it as a reminder: Estate planning is not just for people who are wealthy or elderly. Estate planning is for everyone -- or at least, it should be.
“It’s for anyone who wishes to make his or her choices legally effective,” said Attorney David Pilcher, who has worked as a lawyer since 1994 and is now in his seventh year with the firm Bogin, Munns & Munns.
Pilcher focuses on estate planning, and said there are three basic documents all people should have once they become adults -- and that’s regardless of state, really, although Florida does come with a few specific considerations.
So we asked: What are those documents? What does he recommend?
1.) Durable power of attorney
This authorizes a designated person to execute legal documents on your behalf if you’re unable to do so.
When it comes to the paperwork itself, these are property-focused documents dealing with bank accounts, cars, houses and other real estate -- all of your real and tangible property. It also allows you to have a representative, for example, someone to talk to the IRS about your taxes. So it goes without saying, you want to pick someone who you trust to act on your behalf.
2.) A designation of a health care surrogate
This authorizes a designated person to make health care decisions for you if you’re unable.
In Florida, there are specific references in this document to certain state statutes, Pilcher said.
So, for example, if someone moves to Florida from Ohio and already has a document specifying a health care surrogate, that person’s paperwork likely has Ohio statutes and nuances included. You’d want to make sure your document is tailored to Florida state law.
“Once you’re an adult or once you move here from somewhere else, you should have this,” Pilcher said.
And you should make sure it matches the state you’re in.
Most people who are married choose their spouse, Pilcher said. But you can pick whoever you want. Also, what if a tragedy were to claim the lives of you and your spouse together?
These are all things to think about. And if you don’t designate anyone, there is a pecking order, so to speak, Pilcher added.
3.) A living will
A living will memorializes your decisions regarding end-of-life medical care.
“This is an end-of-life document where you say, ‘When I’m mentally and physically incapacitated, here’s how I want things to go,’” Pilcher said.
You might choose whether you’d like to someday live with a feeding tube, if you were ever to be in that position.
“Anyone moving to Florida should get these updated, or check to see what exactly they need to update,” Pilcher said.
If you have a will from another state, it might be fine. You shouldn’t have to start from scratch. A lot of people assume that with an out-of-state move, they need to overhaul their documents, but that might not be the case, Pilcher said.
It’s best, by the way, to view these as three separate documents.
The attorney added that he spends much of his time working in probate administration, which he described as “a stressful process.” People sometimes have to go through this if their loved one had no documents at all, or if court supervision is needed. You don’t want to deal with the courts, especially in the midst of the COVID-19 pandemic. Many are way behind, Pilcher said.
The importance of having a trust
So instead of dealing with courts, make a trust, or encourage your relatives to follow suit. This will likely be faster and far more efficient system for everyone. Again, don’t assume trusts are only for people of higher means or those who are older than you. If you have children who are minors, and something were to happen to you and your spouse, all sorts of guardianship issues could arise. No one wants that.
And if you’re coming in from another state and you already have a trust, you might not need much done, unless you want to include Florida Homestead specifics.
Similar to the situation outlined above, a trust made in another state might not have the Florida-specific language you need.
“So it might just be some language that needs to be amended,” Pilcher said.
That’s fairly easy for an estate-planning attorney to help you with. Pilcher recommends meeting with one, having that professional look over your documents and let you know what needs tweaking.
“This doesn’t have to be a huge expense. And if someone has never done any estate planning, there’s no better time,” he added. "Make sure things are set up like they need to be.”
His final advice? Make sure your documents are professionally prepared and completed for you.
“People try to do their own documents, but they don’t know Florida Homestead or Florida laws, and they turn out to do things that are horrific -- or they’ll sign a document they think is a will because it looks like one, and assume that’s legitimate," Pilcher said. “But there will be no witness. And if there’s no witness, that’s not a valid will. People will have a false sense of security, thinking they put themselves in a good situation, but they’re worse off than when they started.”
The Estate Planning and Trust attorneys at Bogin, Munns & Munns can help with any further questions or review your documents.