When you are thinking about signing your estate planning documents you will need to make a series of choices…including naming a legal representative, someone else to act for you. You need to have someone in mind you can trust to help manage your financial affairs (power of attorney), health care issues (Advance Directive for Health Care) and to carry out your final wishes (under your Last Will). You may also need a trustee if a trust will be part of your planning. If this year of COVID has taught us anything, it is that life is uncertain. Too many Americans found themselves facing a life-threatening illness without the legal document sin place to name trusted loved ones to help them get through.
For most people, the best person to name as legal representative is a spouse or close family member.
These types of family caregivers have a long-lasting relation with you and have a good chance to understand what you would want done if you are temporarily or permanently unable to express your own wishes. But what about the senior whose spouse is already deceased, or suffering from dementia? Adult children may be one possibility, but many clients state they are “not really close” or “they’re too busy with their own lives.” It is worth at least having a conversation with your adult children (unless there is an outright estrangement) to see if they can serve as primary fiduciaries, or as back-up to your spouse. Your trusted parties will need to be named in your legal documents.
Without your legal documents appointing legal representatives, a guardianship could be necessary to handle your legal/financial/medical choices.
The court may or may not appoint the person you would have wanted to be your guardian. (If you have an Advance Directive for Health Care you can specify that you would want your surrogate to be appointed guardian should the need arise.)
An experienced elder law attorney can help you understand about naming a legal representative and agent in the State of Florida.
Each role constitutes a different type of caregiving. While your attorney can advise you on factors to consider, the final decision is up to you. Careful selection of representatives is crucial as they will have control over the medical care you receive, your assets and property, and even where you live and who may visit you.
One person does not have to fulfill all roles as a legal representative.
Your daughter may be good with managing money, while your son may be more of a day-to-day caregiver. The individuals appointed can change in time as a good choice today may not be in ten years. Choose your agents with current circumstances in mind and update your documents as life goes on and things change. Some of the most important attributes for all representatives to have are trustworthiness, responsible behavior, a willingness to serve, and likely to survive you (young and healthy.)
Your agent under Power of Attorney is often your spouse if you are married.
If you are not, or your spouse is a bad choice due to a condition such as dementia, you will need to select someone else. It is useful to choose someone living nearby. Discuss your choice with your adult children to avoid potential hurt feelings or conflicts. By law your named agent will have to live up to a fiduciary standard, meaning that they must act in your best interest. If they fall below that standard, they could be held civilly or criminally liable. You document should specify that they are allowed to hire professional guidance (attorney or CPA) and that they may pay for that advice from your funds. Otherwise, they may make a costly mistake due to lack of knowledge.
The Personal Representative named in your Last Will administers your estate after you die. The Personal Representative will collect probate assets, determine claims, settle the estate and ultimately distribute estate assets to your named heirs. The Personal Representative should be trustworthy, good with money, calm under pressure, and efficient.
If you feel you have no good choices within your family or close friends as a legal representative, it is possible to name a professional.
You can select an accountant, attorney, or a trust office to fill this role. These individuals will operate with a high degree of competence and professionalism. They will earn a fee for their services, but it might be worth it to ensure your interests are protected and your wishes followed. In addition, you know that their professional regulatory board will have its own safeguards and penalties for malfeasance by its members. A professional can also reduce family tension and resolve conflicts if there is a contentious family situation. (These can arise in nuclear families as well as in “blended” families made up of “his” and “her” children.)
When you have made your selections, discuss your expectations and wishes with your nominees. Transparency in discussion and instruction about your finances and wishes provides a road map that can ease caregiver or agent stress. A client this week showed me a list they plan to leave with their will detailing currently recurring bills and listing life insurance policies with policy numbers and beneficiary. I thought this is a wonderful starting point for their named agent to be able to have this list.
If you need to revisit your documents, or if you have none in place, you should call an elder law attorney at your earliest convenience. You should get your plan in place before life intervenes! Call us at 239-434-8557 to set up your appointment.