When we think of estate planning, the first document that tends to come to mind is a Last Will and Testament (“Will”).
But there are other estate planning documents that are critical to any good estate plan. These include: Revocable Living Trusts (“Trust”), Advanced Directives, (such as a Health Care Surrogate Designation) and Durable Powers of Attorney.
Setting aside Trusts for a moment, while you may realize that your Will isn’t effective until your death, many clients who come to the Law Offices of Samantha J. Fitzgerald often wonder how long estate planning documents last.
They want to know if Health Care Surrogate Designations or Powers of Attorney ever expire.
In today’s post we will answer that question.
What are Estate Planning Documents Such as Advanced Directives and Health Care Surrogate Designations?
In Plantation Florida and throughout Florida, where we practice, an “advance directive” refers to written legal document in which a person (the “principal”) expresses his or her wishes regarding end-of-life medical decisions or medical treatments/interventions that he/she does or does not want in the event he/she becomes incapacitated. The advance directive can also be an oral statement, but whether oral or written, it must be properly executed and witnessed. The decisions made through an advance directive can encompass such things organ donations or whether or not one wants certain medical procedures performed that would prolong his/her life (for example, feeding tubes).
Although Florida does not have a Death With Dignity statute, Florida law does allow one to plan for incapacity. One way in which to do this is by designating a Health Care Surrogate.
A Health Care Surrogate is someone that a competent adult (the “principal” or “maker”) appoints as his/her agent to make all health care decisions for the principal during his/her incapacity—whether physical or mental.
The Health Care Surrogate makes only those medical decisions that he/she believes the maker would have made for himself/herself. So, for example, if the Health Care Surrogate is informed and believes that the maker would not want feeding tubes to prolong his/her life, then the Surrogate would refuse that type of medical intervention.
What is a Durable Power of Attorney?
Another vitally important estate planning document in Florida is a Durable Power of Attorney.
A Power of Attorney (“POA”) is a legal document that gives someone authority to act on another’s behalf. Basically, the POA grants an agent of the principal (or maker) the right to act on the principal’s behalf.
What the agent is allowed to do, and for how long, depends entirely on the specific language of the POA.
A general or limited POA will automatically terminate if the maker becomes incapacitated.
A Durable Power of Attorney, on the other hand, does not terminate upon the incapacity of the maker. Rather, it includes language that specifically allows the power of attorney to continue even if the principal becomes physically or mentally incapacitated.
Do These Estate Planning Documents Ever Expire?
Which brings us to the question: do these types of estate planning documents ever expire?
The short answer is, “no.”
The more complete answer is that even though a Durable Power of Attorney or Health Care proxies will not expire, it is nevertheless the best practice to update your old documents.
Because oftentimes, third parties are hesitant to accept Health Care proxies and Durable Powers of Attorney that are very old, for fear that they might have been revoked or that they no longer express the person’s wishes.
If you have very old documents and a third-party refuses to accept them, your designated agent may find himself or herself in a courtroom battle trying to legally enforce your documents—which is certainly not what anyone wants to do.
Protecting Your Family is Just a Phone Call Away.
If you don’t have estate planning documents in place, now is the time to get them drafted and finalized. And if you do have documents, but they may be old, consider updating them. Don’t leave planning for your future and that of your loved ones to chance. Here at the Law Offices of Samantha J. Fitzgerald, we work hard to ensure that your wishes will be followed, and your loved ones taken care of when you are gone. When you work with the estate planning attorneys at the Law Offices of Samantha J. Fitzgerald, you get more than just an estate plan: you get peace of mind. Call us at 954-580-3690 or email us at: [email protected] today.