Advance Directives are usually comprised of some or all of the following documents with a brief description of each:
- Wills – your stated plan as to whom and in what amounts your estate shall be divided and distributed. Wills provide for your choice of a personal representative with alternates and successors. Wills may contain a testamentary trust to become effective upon death.
- Living Trusts (non-testamentary; revocable and non-revocable) – the stated relationship of a party holding and distributing property for the benefit of another party or trust beneficiary. The length of time of the existence of the trust may vary depending on the terms of the trust. Some trusts may be considered will substitutes. Some people desire trusts because they may reduce probate costs associated with the formal administration of an estate and there is a greater degree of privacy associated with a trust. However, a trust will typically cost more than a will to prepare, particularly as the trust is usually more complex than the will. Trusts usually require ongoing administration fees and may have to pay taxes under its own Federal Identification Number.
- Living Wills – allow medical providers to discontinue heroic and costly medical procedures and care when your death is imminent and permit you to die naturally with only the administration of medication or the performance of any medical procedure deemed necessary to provide you with comfort or to alleviate pain.
- Health Care Surrogate Declaration – advise medical providers of your choice of person(s) authorized to make medical decisions for you when you are incapable of making them yourself.
- Power Of Attorney (POA) – a document by which a person (referred to as the “principal”) gives another person (the agent or attorney-in-fact) the legal right to take action on their behalf. The scope of the agent’s authority is set forth in the Power of Attorney, and can be as limited or broad as the principal desires.
- Pre-need Guardian Declaration – provides your choice of individual(s) to serve as legal guardian of your person or property or both. This document is given great weight by the court when it has to decide between two or more persons that have filed competing petitions to become guardian.
- Unmarried Couples and LGBT Concerns – If you are in a Long-Term Life Partner Relationship and are not married, you will likely need Advance Directives and a Will to protect your life partner. Currently Florida law does not recognize same-sex marriage or the rights of unmarried couples to automatically act on behalf of each other with respect to issues that can arise during incapacitation (such as those concerning medical treatment, end-of-life decisions, and even hospital visitation), or issues that can arise after death (such as estate distribution, funeral, and burial planning). These issues not only impact gay and lesbian couples, but all couples who are not legally married. As a result, in the absence of a will, a power of attorney, or other advance directives, a parent or other family member typically will be entitled to make all decisions concerning medical treatment and guardianship issues in the event of incapacitation, and burial and related issues in the event of death. Florida Law Does Not Recognize Unmarried Relationships in Intestate Property Distribution. If a person dies without a will, they are said to have died “intestate.” In Florida, when a person dies intestate, the person’s property passes in accordance with Florida statutes. These statutes generally provide that the surviving spouse, children, and potentially other relatives will inherit. No consideration is given to unmarried partners, even where a couple may have been in a long-term committed relationship. Accordingly, when a person in an unmarried relationship dies without a will, unless the property is otherwise held in trust or joint tenancy, property will pass to the decedent’s family members, irrespective of the decedent’s wishes. Undoubtedly this can cause tremendous hardship. Not only must the surviving partner cope with the loss of his or her partner, the surviving partner may also face the loss of significant assets that otherwise would have been shared.
- Special Needs Trust – a special needs trust is a trust created for an individual in order to maintain eligibility for government assistance through programs such as Medicaid and Social Security (SSI). Only government-approved expenditures may be paid from the trust.