|Last Will and Testament
A will is simply a document that tells the Court how a person wants their belongings to be distributed after they die,
and with the exception of certain limitations we can explain to you in more depth, I person can generally direct who
they want to receive their assets. If a person dies with a will, they are referred to as being “testate”.
However, if a person dies without a will, or “intestate”, their assets will be distributed according to a formula set out in
the Florida Statutes. Often times the formula set out by law is not what the person wants. Unfortunately, over
seventy per cent of Floridians over the age of sixty do not have a will. Even fewer people under age sixty have a will.
Therefore, to avoid the State deciding who gets your assets, you must have a will so the Court will know how your
assets should be distributed.
Wills can be simple or complex depending on what the person is trying to accomplish. Simple wills are relatively
inexpensive and they can be done rather quickly, while complex wills take more planning and are more expensive.
Regardless of whether a person dies “testate” or “intestate”, if the person does not have a living trust a probate
estate will have to be opened with the Court so the assets can be distributed.
People often wonder about the difference between a will and a living trust. They are quite different, and since each
can have a profound effect on your estate planning, you should consult an attorney for more detailed information of
This actually is a poor name for this document, because it confuses people with the person's "Will" (Last Will &
Testament) and a Living Trust. Both of those documents have to do with transferring property at your death to others.
The Living Will is actually a "dying declaration" and not a "Will" at all, and has nothing to do with "living", because you
are saying that under certain circumstances, you want your life to end.
The Living Will has to do with your intent to refuse "heroic/extradonary measures", or "life prolonging procedures"
including the withholding and/or withdrawal of feeding and,or hydration tubes, in the event of your "terminal illness".
This document only applies when you are "terminal", and has no effect otherwise. Your terminal condition must be
certified by your doctor and also by another doctor. Once this is done, and because you have a properly executed
Living will to do so, your representatives can insist that all life support systems be removed if they are hooked up at
that time, or if they are not hooked up, then for those life support systems not to be utilized at all. In essence, you are
really saying that you do not want the "dying process to be prolonged".
The Living Will is not nearly as broad a scope as the coverage of the Health Care Surrogate Designation (described
below), which has to do with whenever medical treatment is necessary and you unable to dictate your own medical
Your Living Will also names the persons that you have designated as your Health Care Surrogates, and who are to
serve in the order that you have selected, and are to have the legal authority to relate your medical decisions to your
doctors and hospitals. (See Health Care Surrogate Designation.) If the first person is unwilling or unable to serve in
that capacity, then the second one may serve.
|Durable Power of Attorney
You actually have two (2) Durable Powers of Attorney. One is your Initial Durable Power of Attorney for the first person
whom you have selected, and the second is the Alternate Durable Power of Attorney for the second person, who is to
serve if the first person dies, becomes incapacitated, or resigns or declines to serve in that capacity.
A Power of Attorney is "Durable" when it specifically includes language in it stating that the Power granted shall "be
durable" during periods of your "incapacity". This is lacking in a "regular"(or as I call it, a "bookstore power of
attorney") Power of Attorney (not durable), which becomes useless when you do become "incapacitated", because the
law revokes it for you, because you have lost the capacity to revoke it yourself. Proper drafting is extremely important.
For several years, Florida only allowed "family members" to hold your "Durable Family Power of Attorney", but that
restriction was dropped several years ago. But remember, the Durable Power of Attorney can be revoked by the Court,
and is automatically revoked by the Guardianship Court, upon the appointment of a Guardian. That is why I do not like
designations of health care surrogates tucked inside of vulnerable Durable Powers of Attorney. However, I do give the
directions in the Durable Powers of Attorney directing the payment of medical bills committed to by the Health Care
In both Durable Powers of Attorney, you appoint someone (first the person designated in your Initial Durable Power
of Attorney, and secondly the other person as the alternate) who will have the right and the authority to sign
documents, checks, stocks, bonds, enter safety deposit boxes, modify or make demands on insurance polices, prepare
and sign income tax returns, deal with Social Security, and take other legal and financial actions on your behalf.
Please note that as the person serving in the capacity as your Durable Power of Attorney can do these things or take
these actions even before you are incapacitated. Therefore,only appoint someone you trust to serve as your Durable
Power of Attorney. This is another reason that Florida required a "family member" to serve in capacity, as well as
having required notifications to be sent to certain relatives. However, both of those requirements have been dropped.
You may have someone else hold the document giving them the authority to act until such time as the need arises.
Also, remember that if you are the subject of a guardianship proceeding, during that proceeding, the Durable Powers
of Attorney are "suspended" ("goes on hold") and will be revoked altogether by the Court if the Guardianship is
imposed on you. Until the Court actually decides whether or not you must have a guardian, the person holding the
Durable Power of Attorney can only act with Court permission. This is another reason to consider having a Living Trust.
Once the Court decides you must have a guardian, then the person selected as your "guardian over your property"
would serve in lieu if the Durable Power if Attorney appointee This is why you have also named the same people in the
same order to serve as the "guardians over your property". (See Pre Need Guardianship Designation).
Another common misconception with regards to Durable Powers of Attorney is that the "Attorney-in-Fact" who has
been granted the power can take care of matters for you after you die. The fact is that the right to act for you under
your Durable Power of Attorney dies with you. Nor is the grantee automatically chosen as your Personal
Representative under your last Will & Testament. You have to appoint those persons to serve on your behalf in your
Will or Living Trust.
|The Thorpe Law Firm
7819 North Dale Mabry Highway, Suite 108, Tampa, FL 33614
Estate planning is a term that simply means how do you what to
be cared for in the final stages of your life, and who do you want
to get your assets after you die. Estate plans can be simple for
the small estate, or can be very complex for the large estate.
But, regardless of the size of the estate, it is very important to
have a plan, otherwise the State of Florida will make those
decisions for you, and maybe differently then you would have
Estate planning can encompass a wide range of documents,
each with its own specific purpose. Living wills, declaration of
health care surrogate, pre-need guardian, and a power of
attorney are for final stages of life planning, while a last will and
testament, and a living trust are for directing how assets are
distributed after death. Please read the links to the various
estate planning tools so you can become more familiar with each
type of document, and its purpose, so you may have a better
idea how you can achieve the estate plan that will accomplish