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Big Trouble Awaits with bad Incapacity Planning

This week we had a very distraught spouse come into our office. The wife's husband had a stroke and was in the hospital. Unfortunately, the husband and wife had not done any estate planning at all, which is going to create massive problems for the entire family. We are now concerned where the husband will go after discharge from the hospital and how we will pay for it. We know that Medicaid will be available to pay for his long-term care, but we do not have access to all of his assets without a good power of attorney. While we are able to help in some ways, the husband and wife's planning was very poor because they did not create these three key documents:

  1. Durable Power of Attorney: This is likely your most important incapacity planning document as it allows a trusted person to manage your financial and legal affairs. Without the power of attorney, we will need to create a guardianship in order to manage the husband's financial affairs. The guardianship process is pretty difficult and expensive in Florida, which some even refer to as a "living probate." This living probate can generally be avoided with creating a good power of attorney. These are the following tips on creating a good power of attorney.
    • Make sure you have a good elder law attorney create your durable power of attorney. Do NOT rely upon a store-bought or internet power of attorney as these documents generally do not have the necessary powers to protect assets from the nursing home, create trusts, and much more. 
    • Update your power of attorney every 10 years, if not more often. Powers of attorney do not go bad, but they do grow stale.
    • Make sure you name alternate agents on your powers of attorney. What if the initial agent cannot serve when you need help? We see this happen all the time, but a well drafted power of attorney likely includes multiple alternate nominated attorneys-in-fact.
  2. Designation of Health Care Surrogate: This document names the right person to make your health care decisions. While the Florida health care proxy statute can help the spouse here, having this document will make things easier and faster in many different ways. Also, even if you have a Florida designation of health care surrogate, if you have not updated yours since 2015, you will likely want to have yours reviewed with a good attorney. I have another blog post on the reason at this link.
  3. Living Will: Living wills are the written statements of your end-of-life desires. While we always say that talking to your loved ones about your end-of-life wishes is more important than anything else, putting it in writing for your spouse, family, doctors and care providers is still very important. I have written more about end-of-life planning at this blog post as well.

If you want to learn more about Florida estate planning, please come to one of my free monthly estate planning seminars to learn more.

If you want a copy of my book, The Top 20 Ways to Protect Your Florida Estate, please download a copy at this link!!

D. Rep DeLoach III
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Estate Planning and Board Certified Elder Law Attorney
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