By Steven J. Gibbs, Esq.
For any size estate, there are what I call the “Big 3” Estate Planning Documents and these are essential because they each address a major estate planning situation or “life event” as follows:
1. Durable Power of Attorney – Disability
2. Advance Healthcare Directive – Incapacity
3. Last Will & Testament – Death
Disability and Durable Powers of Attorney
No one likes to think about disability and yet none of us is invulnerable. If we become disabled, a Durable Power of Attorney is needed. There are various types of powers of attorney such as “special” or “limited” powers of attorney, and these are for specific purposes such allowing a business associate to purchase real property or make certain business decisions for a limited purpose in your absence. None of these other powers of attorney will allow your appointee to make business decisions on your behalf if you suddenly become disabled. The “durability” in the Durable Power of Attorney allows it to survive disability and this is fundamental to estate planning.
Advance Healthcare Directives and Incapacity
Advance Healthcare Directives are essential if you cannot make your own medical decisions. This document includes separate documents known as a Living Will and a Designation of Healthcare Surrogate. Other names for these two documents are a “Do Not Resuscitate and a Medical Power of Attorney. What you need to know is that you need these two medical documents to make up your Advance Healthcare Directive to cover yourself and your family. I also recommend that folks have a number of HIPPA release documents because these are critical for allowing family members access to medical records due to the strict privacy laws in force today under HIPPA.
Several years ago the Terry Shiavo case made national headlines. The gist of the case is that a woman, Theresa Marie Shiavo, was essentially in a coma or a “persistent vegetative state” for many years. An interfamily dispute developed between Ms. Shiavo’s husband (and legal guardian) Michael Shiavo and Ms. Shiavo’s family concerning Ms. Shiavo’s wishes relating to living in a “persistent vegetative state. This case directly concerned what is addressed in the modern “Living Will” and that is your desire for life sustaining medical assistance in certain dire circumstances. Whereas the Shiavo case example concerns the “Living Will” component of the Advance Medical Directive, there is also the “Designation of Healthcare Surrogate” or “Healthcare Power of Attorney” which serves to empower someone to make your medical decisions as expressed in the Living Will. The Health Care Surrogate role functions very much like the Durable Power of Attorney with the distinction that the former is concerned with medical decisions and the latter is concerned with business and financial decisions.
Last Will & Testament – Death
The Last Will is a testamentary document, meaning that it “testifies” as to the wishes of the deceased person and so it must be deemed reliable. Certain formalities are required to assure that a Last Will is reliable which are:
1. Testamentary Intent
3. Signature by the Testator.
All of these formalities serve 4 main purposes, which are:
1. Evidence that the document is the testator’s last will and testament
2. To alert the testator that it is important and should be carefully considered
3. Prevention of fraud
4. Influencing the testator to consult an attorney to prepare it due to the possibility of errors
It is also important that a Last Will be drafted properly so that there is no confusion in the plain language itself. The Last Will is essentially and instruction sheet for the Probate Court so the Judge can rightly determine who is entitled to the estate assets.
I hope this gives you a better understanding of why there are several documents that are important for a complete estate plan. Utilizing a revocable living trust is also important in most cases, and that is the subject of another article.
Until next time…
Steven J. Gibbs, Esq.
Gibbs Law Office, PLLC
8695 College Parkway, Suite 2030,
Fort Myers, FL 33919
Phone: (239) 415-7495
Steven Gibbs founded the Gibbs Law Office in January 2009, committed to providing client-centered legal services.
Steve as he would rather be called, is not your typical attorney. If you appreciate the staunch egotistical mannerism of most firms, you will be delighted with Steve’s unpretentious approach to educating and then assisting his client. Instead of giving you his complacent and lofty ideas, he would rather pursue your expectations with professional conversation about resolving your concerns under the Law. It’s your life and it’s his job to make your legal expectations come true while using years of his guidance and knowledge.
Steve was admitted to the Minnesota Bar in 1999, the Florida Bar in 2007 and was recently admitted to the California bar. Keeping abreast of law changes in these three States, as well as the United States, assists him in all aspects of the types of law the firm practices.
Along his career path, he was an associate attorney for an insurance defense law firm; an in-house real estate negotiator for Target Corporation; and corporate counsel for Civix, LLC and Vice President for North American Properties where he was responsible for various real estate transactions, including legal issues and negotiating unresolved business issues. Prior to opening Gibbs Law Office, PLLC, he was an associate with the firm of Roberts & Engvalson, P.A. where he gained his knowledge of trusts, estate planing and Wills. He opened his own firm in 2008 and now focuses on laws that will enrich the needs of his clients throughout their lives and those of their children. The firm has developed a practice dealing only with Trusts and Estate Planning, Wills, Medicaid Planning, Elder Law, Real Estate, Business Law and Probate.
Quoting from Steve “I decided to practice in areas that families will need as they progress down life’s path. To help them with a solid foundation that will carry them throughout there lives is a rewarding experience for me and my staff.”