Submitted by: Peggy R. Hoyt, J.D., M.B.A., The Law Offices of Hoyt & Bryan, LLC, Family Wealth & Legacy Counsellors, One Senior Place Resident Business

1. A last will only controls what happens at death. Your last will gives instructions about what happens when you die but it does not consider disability. What happens if you become disabled during your life? A revocable living trust can provide instructions for disability – so can powers of attorney.

2. Everyone needs disability planning. Anyone can be left incapacitated at any age with no clear plan for spouses, loved ones or heirs. This wastes time, money and creates great emotional hardship. The Terry Schiavo situation was a wakeup call to families who realized they left incomplete instructions for their health care wishes. Financial powers of attorney and advanced health care directives designate agents or surrogates to make decisions when you can’t. You can also set forth your intentions with regard to end of life treatment and organ donation.

3. Asset ownership affects disability planning too. Knowing how you own your assets is extremely important. In most cases, asset ownership will take precedence over the instructions in your powers of attorney. Powers of Attorney are not relevant for jointly owned assets.

4. There was a recent change to the Power of Attorney law in Florida. Effective October 1, 2011, a new law went into effect dramatically changing the Florida Power of Attorney Statute. A Power of Attorney is a writing in which one party (the principal) grants authority to an agent to act in place of the principal; each act performed by the agent pursuant to the power of attorney has the same effect and benefit to the principal and the principal’s successors in interest as if the principal had performed the act.

5. Designate a Health Care Surrogate (Durable Power of Attorney for Health Care). You may expressly designate authority to a Health Care Surrogate to make all health care decisions during any period of incapacity. During incapacity, your Health Care Surrogate has the duty to consult expeditiously with appropriate health care providers. The Surrogate also provides informed consent and makes health care decisions which he or she believes you would have made under the circumstances if capable of making such decisions. If you do not designate a Surrogate, Florida law designates the person who would make health care decisions for you if you were incapacitated. This person may or may not be who you would want to make those decisions.

6. What is a Living Will? Every competent adult has the right to make a written declaration commonly known as a Living Will (not to be confused with a Last Will). The purpose of this document is to direct the provision, the withholding or withdrawal of life prolonging procedures in the event one should have a terminal condition. In Florida, the definition of “life prolonging procedures” has been expanded by the Legislature to include the provision of food and water to terminally ill patients.

7. Disability Planning can help avoid Guardianship. Appointing agents to make financial and health care decisions for you if you cannot make them yourself can help avoid Guardianship. Guardianship is a time-consuming, expensive and public court process in which a person is determined to be incapacitated. If Guardianship is necessary a Preneed Guardian Declaration gives you the opportunity to pre-appoint or pre-select your own Guardian.

8. Disability planning ends at death. Powers of attorney, living wills, etc. are only effective during the principal’s lifetime. In order to have instructions in place at your death you need to include a Last Will or Revocable Living Trust.

9. Plans need to be updated regularly. Any change in circumstances is a good reason to review your disability and estate plan. We recommend every two to three years to make sure that changes in your life, changes in the law, changes in your lawyer’s experience and changes in your legacy are incorporated into your plan. Most Americans only review their estate plans every 19.6 years – anything happen in your life over the last 20 years?

10. Create a team of trust advisors. You don’t have to be a lone ranger. An educated, experienced team can not only be a blessing to you during your lifetime but also to your loved ones in the event of disability or death. Both legal and financial tools and techniques have become too complex to go it alone. Include an estate planning attorney, financial advisor and tax professional as part of your trusted team.


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