Jacksonville Wills and Estate Planning Attorney
Jacksonville Estate Planning LawyerAttorney Leanne Perez believes that estate planning is a form of protection for the family. Estate planning has many important benefits. Proper estate planning allows you to:
- Transfer your assets to your loved ones according to your wishes.
- Decrease testamentary process costs that may affect the inheritance of loved ones.
- Take care of your partner or significant person in your life.
- Express your wishes regarding key medical services and their treatment at the end of your life to protect your family from the uncertainty that may result in conflicts.
- Provide for welfare and appoint a guardian for your minor children.
Attorney Perez can prepare an estate plan for you to include a variety of instruments, such as
- Last Will and Testament
- Durable Power of Attorney
- Health Care Surrogate/Power of Attorney
- Advance Directive (Living Will)
Last Will and TestamentA Florida will gives the testator (the person writing the will) the opportunity to make sure their spouse, children, other loved ones, and property are taken care of. A will is a legal document which may be accepted by a court with probate power and normally states how property is to be distributed after a person's death. The beneficiaries will frequently need to go to court for a judicial determination of who receives the property if title must be established in order to obtain the property. This commonly includes land, bank accounts, stock and similar types of property.
A person, who dies without a will, is "intestate” which means that person's property will be distributed by the probate court as directed by law. Failure to leave a valid will that clearly sets forth your intentions can greatly increase the cost of probate and delay the division of property. It is always advisable to prepare a will.
A Florida last will and testament may be changed whenever the testator wants to do so through a new will. The testator must be of sound mind and not under undue influence, duress, or fraud in order for a change in a will to be valid.
A Florida will may be revoked at any time by the testator by another written will, codicil, or other writing executed with the same formalities as the will or by an act of “burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose, of revocation” by the testator or by someone else in the testator's presence and at the testator's direction.
A properly prepared will is essential for the distribution of your assets to your proposed beneficiaries. Without a validly prepared will, your assets will be distributed in accordance with the rules of intestate succession and your assets may not be distributed in the manner you desire.
Durable Power of Attorney
A Durable Power of Attorney, commonly referred to as a DPOA, is a written document, signed by an individual (the Principal) in the presence of two witnesses and a notary. It contains language which authorizes the trusted person “the Agent” to act on the Principal’s behalf. It is governed by Chapter 709, Florida Statutes, which is known as the “Florida Durable Power of Attorney Act.” This law was significantly revised in October of 2011, however Powers of Attorney executed before then, are still legally valid.
A DPOA transfers authority from one person to another (agent) to assure that certain business decisions and financial transactions will be handled in the way you wish them to be, even if you are not able to attend to them personally, or if you become incapacitated. The nature of the authority granted by a DPOA can be broad or limited to very specific acts. Once the document is signed, the agent has the immediate authority to exercise his/her powers.
Some assume, that a spouse will automatically be authorized to manage the affairs of another during incapacity, however this is not the case. It is prudent for married couples to have a Durable Power of Attorney to designate each other as their agents. If not married, any trusted person such as a family member, significant other, a friend, or even a professional fiduciary, can serve as an agent.
A written legal Durable Power of Attorney document is necessary when dealing with third parties on the principal’s behalf. Third parties are banks, auto insurance companies, homeowner’s insurance, license bureaus, brokerage houses, credit unions, human resource departments, retirement plans, life insurance, etc. When dealing with these third parties on behalf of the “principal”, the first question asked of you will be to provide a copy of the Durable Power of Attorney, appointing you as the “agent”. The document is inexpensive and certainly worthwhile, given the alternative of establishing a guardianship procedure in the courts which is bost costly and can add to the stress already endured by the family.
Health Care SurrogateA health care surrogate also known as a health care power of attorney is an adult who you legally designate in writing, to make healthcare decisions when you become unable to make them for yourself.
A concern for anyone, is a potential loss of the cognitive ability to make health care decisions for one’s self. If this occurs, who do you trust to make decisions about what treatment option to pursue, or what medications or surgeries to accept? Surgical and diagnostic procedures require written consent. A health care surrogate document can be drafted to appoint a surrogate and to grant them legal authority to make these decisions, if you are unable to.
You can appoint one or more persons to act as your surrogate and designate whether you require these chosen individuals to make decisions jointly or independently. You can also designate an alternate health care surrogate to act if your primary designated surrogate is unavailable.
Additionally, the document gives authority to your physicians to discuss your health care condition with your surrogate. This written permission is required under the Health Insurance and Portability and Accountability Act, known commonly as HIPAA.
The law governing Health Care Surrogacy is found under Chapter 765 Fla. Statutes.
A Living Will is a written declaration of instructions to your physician and family regarding the withdrawal, withholding or provision of life-prolonging procedures at the end of life, when there is no chance of recovery or cure.
The procedure for signing a legally valid Living Will in Florida is governed by Sections 765.302 through 765.304 Fl. Stat. The person making the Living Will is referred to as the principal.
A Living Will must be signed by the principal in the presence of two subscribing witnesses, one of whom is neither a spouse or a blood relative of the principal. The decision to make a Living Will is a very personal decision and can be individualized.
Most importantly, by making this end of life decision in a legal document, your family will be relieved of the burden of having to make that decision for you. A Living Will can give peace of mind to you and your family.
It is recommended that the principal also designate an individual to act as a health care surrogate to make medical decisions including the end of life instructions set forth in a Living Will.
While the subject of end of life is difficult to think or talk about, a Living Will, can assure your voice is heard by your family and physicians.
Pre-need Guardian for Minors
One of the biggest fears for any parent is deciding who should care for their child or children, if the worst occurs. Designating a guardian in a Will is one way to name a guardian. However, Florida law provides a procedure that that can assure the outcome will be as you wished.
If a guardian is named in a Will, then a judge would consider that fact, along with other evidence, in determining who will be legally appointed as the guardian. However, the judge will consider other factors to decide whether appointing the person of your choice is in the child’s best interest.
Leaving that question to a judge, who will only hear evidence presented at a one-day hearing, is risky. In other words, who is the best person to make this decision; the parents or the Judge?
Accordingly, it is advisable for parents to execute a pre-need guardian document and file it in the courthouse in the county where the family lives. This takes discretion away from the Judge. If properly done, the pre-need guardian document, assures that the persons the parent has chosen as guardian, will actually be appointed. This would avoid costly and hurtful litigation by family members as to who would best serve the child’s interest. In other words, the question has already been decided by you, and is legally enforceable.
When You Should Review Your Existing Estate Plan
Many people think that Estate Planning is a one-shot deal. They implement a plan and then lock it away for years and years. In reality, your life is constantly changing, and it is critical that your estate plan change along with it. Your estate planning documents should be reviewed by you and an attorney regularly to ensure that they are still aligned with your goals. There are numerous events that could change your estate planning needs. We recommend that your estate plan should be reviewed every three to five years. Many clients are surprised at the number of changes that can occur in a relatively short period of time and have an effect on existing wills. If you have not reviewed your estate planning documents recently, it may be a good idea to make an appointment to do so.
Some reasons to consider reviewing and/or revising your estate planning documents are listed below:
- Marriage, remarriage or divorce
- Death of a spouse
- Big change in total asset value
- Death or incapacity of an executor, guardian or trustee
- Relocation to another state
- Purchase of real estate outside of Florida
- Birth or adoption of a child or grandchild
- Marriage or divorce of any beneficiary
- Beneficiary develops a drug, alcohol, or gambling problem
- Beneficiary becomes financially irresponsible
- Beneficiary begins a career with increased risk of law suits (lawyer, doctor, etc.)
- Changes in tax laws
- Three or more years have passed since your last estate plan review with an attorney
Free Consultation! Call Today 904-990-3066
Attorney Leanne Perez can assist you in preparing your estate planning documents and reviewing your current estate planning documents to ensure they are still consistent with your goals. Contact her today at (904) 990-3066 for your initial consulation.