Essential Documents and Provisions – Is Your Estate Plan Missing These Items?

Essential documents and provisions are not the first thing we think of when it comes to planning our estates, but this is something that should be kept at the forefront of our minds when we create a Will or a Trust.

When you think about an estate plan, what do you think of?  Often people will think of a Last Will and Testament or some form of Trust.  Other methods of planning are often overlooked, and those options may be pivotal if something were to happen to you. 

Estate planning is of course meant to include a plan for your assets and property after you pass away.  But what happens if you are for some reason incapacitated?  The bills will still come and need to be paid, decisions will need to be made about your medical treatment, or someone will need to look after your minor children.  All of these situations can be handled according to your wishes with proper care and drafting as part of your estate plan. 

In addition to having a Last Will and Testament or a Revocable (or Irrevocable) Living Trust, consider asking your attorney about adding the following types of documents to your estate plan.

The first category of documents that are overlooked in estate planning are called “Advanced Medical Directives”. These documents include Living Wills and Designation of Health Care Surrogates.  

Living Will

A common misunderstanding is that a Living Will is the same as a Last Will and Testament.  Although both are technically called “Wills,” the documents have different purposes and should both be a part of your comprehensive estate plan. 

A Living Will is a document that contains your instructions for medical decisions if you are incapacitated and unable to make those decisions for yourself.  Living Wills frequently include a “Do Not Resuscitate” provision or may alternatively instruct that the medical provider use all artificial means of prolonging your life.  For more detailed information on Living Wills, check out our article “What is a Living Will and Why Should I Have One?” 

One of the main reasons to include a Living Will in your estate plan is that it allows you to express your wishes for medical care decisions.  Although we do not want to think that something could happen where we are incapacitated, there are a few benefits to making these decisions while working with your attorney on your estate plan.  First, you get to convey your wishes. In addition to that, your family or friends may be emotional when decisions need to be made regarding your care or may not know what you would have wanted.  By having a Living Will, your wishes and instructions are explicitly laid out so that both family, friends and medical care providers know what you want. 

Healthcare Surrogate

Similar to the Living Will, designating a Health Care Surrogate allows you to express your intentions for your medical care in the event that you become incapacitated and are unable to make those decisions yourself. 

A Health Care Surrogate designation is a useful estate planning tool to help prevent conflict amongst your family in the situation that you need medical attention and care but are unable to make decisions due to incapacity.  By designating your Health Care Surrogate ahead of time, you are able to convey what you want before the issue arises.  This may help your family avoid making emotional decisions that can often lead to conflict in tense situations.  If you are interested in learning more about Health Care Surrogates, please read our “What is a Health Care Surrogate and Why Should I Have One” article. This is one of the many essential documents and provisions that need to be considered during the estate planning process.

Power of Attorney

A General Durable Power of Attorney is a granting of authority to another individual to handle particular functions on your behalf.  For example, a grant of Power of Attorney may permit someone to pay your bills, manage your business, or even sell your home on your behalf.  A grant of Power of Attorney will usually either be effective immediately or after you have become incapacitated, although there may be other ways to designate when the Power of Attorney becomes effective.  It is important to discuss with your attorney which option for when the Power of Attorney becomes effective is right for you.

The Power of Attorney can include a broad grant of powers or can be more specific to certain tasks that you want someone to be able to handle if you become incapacitated.  Again, it cannot be stressed enough the importance of discussing with your attorney the specific grants of power that you do and do not wish for your Power of Attorney agent to have. 

In choosing someone to act as your agent under the Power of Attorney, it is essential that you choose someone that you think will be able to carry out your wishes and who will actually be able to have the time or ability to travel to carry out the duties as your agent. 

Plan for Guardians of Minor Children

Although not a specific document to include in your estate plan, the aforementioned essential documents and provisions (along with a Last Will and Testament or Trust) provide an opportunity to include a designation of who you would wish to be the guardian of your children if something happened to you.  Generally, these designations apply if both you and the other legal guardian or parent of the child are incapacitated. 

By providing a designation of who you wish to be the guardian(s) of your minor children in your estate plan, the court that appoints those guardians will be able to consider your wishes and what is best for the child. 

For more information on naming Guardians and Estate Planning when you have minor children, take a moment to read, “What Happens to Your Young Children After You Pass Away?”.

Consider Including Secondary Designations

Sometimes, the person that you designate to serve as your Health Care Surrogate, Power of Attorney Agent or Guardian of your children will not be able to (or maybe not willing to) serve in that capacity.  Before designating these roles, it may be useful to talk to your family and friends about your intention to name them as your agent.  Also, as circumstances change, you may wish to change the individuals you have designated for these roles.

One thing you can do during your estate planning is include secondary agent/guardian designations.  That way if for one reason or another the first person you listed cannot serve in that role, your wishes will still be able to be carried out by the alternative agent or guardian that you have listed. 

Enhanced Life Estate Deed

Estate planning is a way to use legal tools to ensure that your wishes are carried out.  Another useful document that is accepted in Florida is the Enhanced Life Estate Deed (also called a Lady Bird Deed).  Lady Bird Deeds can be used as an estate planning tool in Florida for the owner to retain a life estate in the property while they are living, and the property will then pass directly to the intended beneficiaries when the owner passes away.  This estate planning tool is different than a typical Life Estate Deed in that the owner maintains the ability to sell, rent or change the property without needing the permission of the beneficiaries who will eventually inherit the property.  For more information on Lady Bird Deeds: “Lady Bird Deeds: How an Enhanced Life Estate Deed Could Save You Money”.

Please Note:  Only a handful of states, including Florida, accept Enhanced Life Estate or Lady Bird Deeds.  Consult with your attorney to determine whether this method of planning is a viable option for you.

Essential Documents and Provisions: Other Considerations

In addition to assessing whether your estate plan includes the suggested documents and provisions, you want to ensure that your documents are accessible to those who will need to provide them to the appropriate parties.  In addition to having your attorney draft these documents for you, it is essential that they are stored properly (or in the case of a Lady Bird Deed, recorded properly). For example, if the individual you designate as your Health Care Surrogate does not have access to the document, they will not be able to provide it to your health care provider in the case that it is necessary.   

If you would like more information regarding how these documents and estate planning considerations could be incorporated into your current estate plan or for a consultation regarding creating an estate plan, please contact Stivers Law.  We are happy to help you figure out the best options for your estate planning needs.

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