Wednesday, September 20, 2017
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Frequently Asked Questions

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In the event that I become incapacitated, who will have the authority to make medical, business, and/or financial decisions on my behalf?

Should you become incapacitated without properly designating someone to act on your behalf by proper execution of a Designation of Health Care Surrogate and Durable Power of Attorney, the state in which you reside may need to establish a guardianship in order to appoint an individual through the court system to act on your behalf. Guardianships are often costly and may take a substantial amount of time to be established. Prior to the establishment of a guardianship, when required, there is not an individual with authority to make important medical, financial and/or business decisions on your behalf.

Do I really need a Designation of Health Care Surrogate and Durable Power of Attorney?

Yes. The Designation of Health Care Surrogate specifically addresses medical matters while the Durable Power of Attorney deals specifically with financial matters, real estate, bill paying, and/or business matters. In order to avoid the necessity for a guardianship, the State of Florida requires an individual to properly execute both a Designation of Health Care Surrogate and Durable Power of Attorney prior to becoming incapacitated.

Can I just inform a close friend or relative of my wishes regarding my intentions with regard to being kept on life support?

No. As with the highly publicized case of Terri Schiavo, family members and friends may not share the same interpretation of your opinion regarding life support. This may lead to a lengthy and costly dispute among those close to you. By executing a Living Will, your wishes will be clearly stated in writing and shall be carried out by your medical providers and the individual you have designated to act on your behalf as Health Care Surrogate.

Who will be appointed as Personal Representative or Executor of my estate?

The state in which you reside in at the time of your death will determine who shall be designated to act as Personal Representative to handle the administration of your estate in the event you have failed to designate someone by preparing a Last Will and Testament. In the event that there are more than one (1) eligible designees to act as Personal Representative of your estate, each eligible designee must come to an agreement regarding the appointment of an individual which may require litigation, additional attorney’s fees and court costs to your estate.

Who will receive my assets upon my death in the event that I have not prepared a Last Will and Testament?

The state in which you reside in at the time of your death will determine how your assets shall be distributed at the time of your death based on the laws of intestate succession.

Who would care for my minor children if I die before they reach the age of majority?

It is important to designate an individual to care for your minor children in the event you were to die before they reach the age of majority as well as a person to handle any assets that your children would inherit from your estate. Your wishes regarding the care of your minor children should be clearly stated in your estate planning documents naming the individual(s) you would like to care for your children and outlining any special instructions that you would like the caregiver(s) to follow.

What is medicaid planning?

Many older Americans fear that they may end up in a nursing home for their final years of their life. Not only does it mean a great loss of personal autonomy to them, but there is a large financial price. Depending on location and quality of care, nursing homes can cost between $35,000 and $150,000 a year.

Many people end up paying for nursing home care out of their savings until they run out. Then they can qualify for Medicaid to pick up the cost.

Studious planning, whether in advance or in response to an unanticipated need for care, can help protect your estate, whether for your spouce or for your children.

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Do I need to have an attorney prepare my estate planning documents or can I write up my wishes on my own?

If your estate planning documents are not properly prepared and executed, they may not be valid and enforceable. If the documents are not enforceable, the state in which you reside may still be required to designate individuals to act on your behalf and distribute your assets upon your death. There are strict requirements that must be followed from each state regarding the preparation and execution of estate planning documents.

I have estate planning documents from another state where I previously resided, will they still work in Florida?

Generally not. Each state has established state specific rules regarding the preparation and execution of estate planning documents. Your estate planning documents may have been valid in the previous state that you resided in and not be enforceable in the State of Florida. It is recommended that you speak with an estate planning attorney licensed to practice in the State of Florida and have your estate planning documents reviewed.

I had estate planning documents prepared and executed many years ago, are they still good?

They may or may not be. The State of Florida does change certain requirements regarding the preparation and execution of estate planning documents from time to time. It is recommended that you speak with an estate planning attorney licensed to practice in the State of Florida and have your estate planning documents reviewed to make sure they still meet the current requirements for the State of Florida.

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This website outlines general legal principles and is not intended to give you legal advice. If you have a specific question about the law, please consult an attorney.

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