What is the most essential estate planning document I should have?
Most people would answer that the last will and testament is the most important estate planning document. While a will is an important document to have, a durable power of attorney is much more vital. Whereas a will goes into effect when a person dies, a durable power of attorney deals with the situation when the person is still alive but unable to make decisions, i.e., where an individual is in a coma or has experienced a stroke. While a regular power of attorney (a legal document delegating authority from one person to another) is terminated upon a person’s incapacity, a DURABLE power of attorney SURVIVES that person’s incapacity. Because of this added benefit, this document is a very important and vital document in all estate planning. What would happen if your tax return was due on April 15th and you were unable to sign? Most likely, the IRS would not really care about your circumstances and would start penalizing you on your late return. However, if you had appointed an “attorney-in-fact”, i.e. someone who had the legal ability to sign that tax return on your behalf, you would not have a problem. Additionally, most people have the misconception that because they are married, they have the legal standing to admit their spouse into a rehabilitation or nursing home facility. This is not the case. Unless you have a durable power of attorney appointing you as your spouse’s attorney-in-fact, you will need to establish a guardianship, a court proceeding which appoints a guardian over a ward. This is quite costly and time-consuming. In conclusion, should you have to choose one estate planning document for an attorney to draft, the durable power of attorney is certainly the one to choose.
For more detailed information on powers of attorney, please visit the Florida Bar link: https://www.floridabar.org/public/consumer/pamphlet13/