Estate Planning

At Britton G. Swank, P.A., we devote a substantial portion of our practice just to estate planning. We believe in taking the time to talk with each client about their reason for coming to see us. Is speaking with an attorney about your estate plan something you’ve had on your to do list and are just now getting around to tackling? Or, is there something specific you’re worried about?

Regardless of what drives a client to meet with us, learning a client’s wishes, assets, and studying how each asset is titled, prepares us to provide the best estate planning options. A brief description of general estate planning documents is provided below.

A will is the most common way for a person to document exactly how they want their estate to pass after death and address who they want to be in charge. Wills vary in length depending on the estate size and preferences of the testator. Wills must be validly executed by an adult with capacity and must be in writing.

A trust, once created, allows a person to title assets in the trust, rather than in their name individually. The trustee is the person tasked with managing trust assets and is often the person who creates the trust. A trust is like a durable power of attorney in that it allows the trustee to manage trust assets during the grantor’s life. It also has will-like features because it directs the disposition of assets after the grantor’s death. If funded properly, a trust can avoid probate. A trust can be revocable, which means it can be amended or revoked, but a trust can also be irrevocable. Typically, a trust is executed as a separate legal document and is funded while the grantor is alive, but it can also be created in a will. This type of trust is called a testamentary trust.

This is a legal document that gives someone else authority to manage your financial affairs. You must be competent to sign a durable power of attorney, but it will continue to be effective even if you become incapacitated in the future. A durable power of attorney is effective immediately upon signing in Florida so that the authority of the person you appoint cannot be conditioned in your ill health. If you are unsure about who to appoint, discuss this with your attorney.

A health care surrogate is similar to a durable power of attorney, but is put into place so someone else can make health care decisions for you if you can’t. Florida law now allows this document to be effective immediately. However, most clients opt for the surrogate’s authority to arise only if at least one physician states they are unable to make their own medical decisions. For those that used to live in another state, this type of document may have been called a Health Care Power of Attorney or Proxy. A Florida Health Care Proxy refers to the situation when no written designation was made by the sick person. In these cases, Florida law has a prioritized list of people who can qualify as a Health Care Proxy.

A living will is a document that allows a person state their specific wishes regarding end-of-life medical care in case they are unable to communicate them in the future. A living will gives invaluable guidance to family members and healthcare professionals when a person is no longer able to speak on their own behalf.

Paramedics, EMS staff, and medical technicians must resuscitate a person to make them stable before transporting them. This is true even if you have a living will. The only way to attempt to prevent this is by signing a Do Not Resuscitate order.

A do not resuscitate (DNR) order is a physician’s order signed by you (or your health care surrogate or proxy) and your doctor. It states you do not want to be resuscitated if you have a respiratory or cardiac arrest. A DNR is typically only signed for a person who is extremely ill or in a persistent vegetative state. Comfort care measures such as oxygen administration, hemorrhage control and pain management, will still be used. Florida’s DNR is a form developed by the Florida Department of Health and must be printed on yellow paper before being signed. A valid Florida DNR that is properly executed does NOT expire.

Here is a link for the Florida Department of Health for more information: http://www.floridahealth.gov/about-the-department-of-health/about-us/patient-rights-and-safety/do-not-resuscitate/index.html