Your Will, Power of Attorney, and Healthcare Surrogate: Are You Prepared?

This is always a difficult topic to approach with clients or family. No one wants to think about what would happen if they unexpectedly passed away or became temporarily incapacitated. It’s hard to sit down and think about it, let alone begin planning for it. So, unfortunately, many of us constantly put it off. Others think that wills are for older people, but young adults should absolutely have a will. As parents, it’s even more important that we make sure to have a will. We have to think about our children and plan for their future. 

This pandemic has made many people realize that they are not prepared for the unthinkable. Over 50% of Americans don’t have a will! However, it’s not just a will that you should have drafted. What happens if you are in the ICU? Is your spouse making medical decisions for you–what if your spouse is also in the ICU? Do you have a designated person to make medical decisions on your behalf? Have you made your wishes known to family and friends? Sometimes, in the hardest moments of a family’s life, it is incredibly difficult to honor someone’s wishes. Maybe they simply don’t know what you would have wanted.

Here are a few things every adult should have: a will, a power of attorney, a living will, and a designation of healthcare surrogate.

YOUR WILL

Did you know that Florida is an expensive state to go through probate? In short, probate is the legal process of distributing a person’s estate. If you have a will, that document will guide the distribution of your assets (whether it be money or your family’s jewelry) and very importantly determine the guardian of your children. If you don’t have a will, the court will distribute your assets according to Florida Statute.

I don’t know about you, but making the decision about who will be my child’s guardian should my husband and I both pass, is a very big and very personal decision. I don’t want the court determining that or deciding who will handle our assets until my child is of age. By drafting a will and specifying who shall serve as your child’s guardian and trustee of the assets left to your child, the court knows who to appoint.

Your will also gives you the opportunity to appoint your personal representative. This is the person who is going to administer your estate (used to be called an executor). I always recommend naming a secondary personal representative in the event the first person is unable or unwilling to serve. If you pass away without a will, the court can appoint one based on Florida Statute.

POWER OF ATTORNEY

A Power of Attorney (POA) is a legal document that allows your appointed agent to act on your behalf. 

A Power of Attorney can grant your agent to do things like pay your mortgage/rent, handle your business, or simply pay your bills. This document is helpful if you are incapacitated and unable to take care of your day to day business. Maybe you are going in for a routine procedure, but want to make sure that should anything go less than ideal, someone will be able to act on your behalf. Sometimes, the unexpected happens and you won’t have time to execute this document beforehand.  

There are various types of powers of attorney: Limited Power of Attorney, Durable Power of Attorney, and General Power of Attorney. A limited POA can be tailored for certain powers and for a limited amount of time. A Durable POA is effective immediately upon signing and can remain in place your entire life. 

Regardless of which power of attorney you execute, think carefully about who will be your agent. Because of the sensitive nature of the powers you are granting someone else, you should only grant power of attorney to someone who you truly trust.  

LIVING WILL

This is a document that indicates the medical care you wish or do not wish to receive, in the event you are unable to make decisions for yourself. It can specify whether or not you want to be resuscitated or whether or not you want to donate your organs. I believe every adult should have a living will–young and old. Life is unpredictable and otherwise healthy individuals may find themselves incapable of making their own decisions about their care.

A living will puts your wishes in writing so that no one is left guessing what you may have wanted. Those decisions can be particularly hard during an already difficult time for your family.

DESIGNATION OF HEALTHCARE SURROGATE

In the event of your incapacitation, your spouse is likely the person who will make decisions regarding your care. However, if you and your spouse are in the same accident and you’re both incapacitated, do you know who will make decisions about your care? Meanwhile, what would happen in the event your child requires medical care and you are incapacitated? Is there a designated person with the authority to make decisions regarding their care in your absence?

It’s important to have this conversation with the person you’re planning on appointing. Let them know you would like for them to be your healthcare surrogate. In the event you can’t be reached because you’re on a plane or turned your phone off for a long meeting, your child’s healthcare surrogate can make medical decisions for your child in an emergency. I cannot overstate how important it is to choose someone you trust to be your healthcare surrogate, particularly for your children.

Designating a healthcare surrogate for you, your spouse, and your children is important. It will provide you the opportunity to choose the person who you want dictating your care.

WHAT CAN I DO? START PLANNING.

If after reading this you realize you don’t have anything in place for your estate–it’s okay! Have the hard conversations with your spouse and your family and start planning. Get in touch with an estate planning attorney and put it in writing. I think these difficult times we’ve been living in has made it clear that we can’t take our health for granted. It’s never too early to plan for the unthinkable.

*Please note this content is for informational purposes only. This content is not legal advice. Please contact an attorney to discuss preparing your estate planning documents.*