HAVING A PLAN FOR YOUR FAMILY IS THE RIGHT THING TO DO
For most people, Estate Planning is a mystery; for others, it’s simply not a priority for the simple reason that there is always time to do it “later”. Most individuals consider Estate Planning to be an issue for the elderly. Unfortunately, it applies to all individuals in any walk of life because we are never promised tomorrow. However, Estate Planning is not necessarily only for what happens after you pass away. Estate Plans can be tailored for an individual’s specific needs or can be suited for specific events that may occur in the future.
Most of us are familiar with Terri Schiavo and the legal battle that ensued between her parents and her husband. For those who are not familiar, at the young age of 26, Terri suffered a full cardiac arrest on February 25, 1990. She was later resuscitated but suffered massive brain damage to lack of oxygen to her brain and was left in comatose. After two and half months without improvement, her diagnosis was that of a persistent vegetative state. For two years, the doctors attempted any and all forms of medical treatments that may assist Teri in her recovery but were unsuccessful. In 1998, her husband made a petition to the court to remove her feeding tube pursuant to Florida law. Her parents, however, felt that there was still hope and that she was in fact conscious. This is when the 7 year long legal battle between her husband and her parents began. After 14 years of being in a vegetative state, the State of Florida made the determination in favor of her husband. The feeding tube was removed and Teresa Marie Schiavo died on March 31, 2005 at the young age of 41.
The legal issue here was Teri Schiavo did not have a written document authorizing or expressly stating what her intentions would be in this circumstance. The court had to make a determination as to who had the right to make that decision. The court had to decide whether the parents' rights trumped the husband’s rights. In this case, the court determined the husband had the right to make that decision.
Most individuals do not understand that this is more common than you would think. Sadly, you are never too young for the unfortunate to happen. It is tremendously important to plan ahead. Developing a proper Estate Plan will let YOU dictate what would happen if the unfortunate happened.
In an estate plan, you will include legal documents such as a power of attorney, living will, pre-need guardian, health care surrogate, a trust and last will and testament. These documents all have specific meanings and specific instructions on each stage throughout your life. Most of these documents can be altered by you at any time.
A power of attorney is a written document that is made to designate a person to act on your behalf for a limited or an undetermined amount of time. Documents such as the living will, health care surrogate and pre-need guardian would allow you to designate a person to act on your behalf on specific occasions as you direct them. Each document performs a particular purpose and for a particular time. Having these documents readily available will allow your wishes to be carried through. Sometimes when family members are put in a situation to make these decisions it may not be the same outcome you would like it to have. It is always best to have your wishes written out. Often times these circumstances are emotional for all involved. Making decisions like the one that Terri’s family had to make isn’t easy. It comes with a lot of emotion and turmoil. However, it doesn’t have to be this way. The Terri Schiavo case has helped make strides to uniform the law in the case much like this.
Being prepared for these circumstances will allow you to have a peace of mind.
THREE REASONS WHY BLENDED FAMILIES NEED TO PLAN AHEAD
As time changes so does our familial structures. Did you know that approximately forty percent of married couples are composed of blended families? Blended families come in many shapes and forms. A blended family is one in which one or both spouses have had a child from a previous relationship. One thing that all blended families have in common is a former spouse or significant other. The state of Florida does not recognize common law marriages but Florida does respect parental rights.
Estate planning is one of the most neglected areas in most families. Most people think that this is something you take care of when you reach an elderly age. Estate planning is something that gets done later. Unfortunately, none of us know if we have until later. In my practice, I find that most clients that failed to plan ahead are those who have experienced how complex not having an estate plan can be on a family.
There are many reasons why an estate plan is necessary. However, I feel that there are three significant reasons estate plans are crucial for any family.
First, exes are exes for a reason. There are many reasons why relationships come to an end. Typically, those reasons include trust, money and compatibility issues. If you have an ex who was not very wise with the finances then you should consider an estate plan. If you pass away, did you know that your former significant partner may have parental rights over your minor child? If this is the case and you leave assets or money to this child then your former partner may have rights on how to manage your child’s estate. By having an estate plan then you are able to name a person whom you trust. This person would be responsible for the assets or money left to your child without affecting the parental rights of your former partner. The intention of estate planning is not to deprive anyone of their parental rights but to make the best of the assets left to your minor child.
Second, the government may have a say in what happens to your estate. Absent an estate plan then more likely, than not the Florida Probate Code will then dictate who gets to manage and have access to your estate. If you have an estate plan then you can have a piece of mind. You will know who will be in charge and who is managing it.
Third, it is never too early to plan ahead but it is always too late. Did you know that a Last Will and Testament only takes effect upon your passing? That means you can change it as many times as you like until the day you either become incapacitated or pass away. One of the most common misconceptions is that a power of attorney has “power” even after the passing of a person. There is absolutely no truth to that statement, once someone has passed away a power of attorney ceases to exist. It no longer has any power and by that time, it is too late to do anything to plan ahead.
It is important to address the specific needs of any family. However, blended families have so many complexities it is important to seek the advice of an attorney to plan ahead.