By James W. Mallonee
In the last six months there have been many situations involving families who have come to this author’s office to ask what to do when one of their loved ones has succumbed to the COVID virus without any instructions on how to handle their estate or health needs. This is a recurring real-life problem, but the solution is really simple by asking one question from the attorney of your choice; what do I need in case I get sick and do not recover? The basics are a Healthcare Surrogate, Living Will, Durable Power of Attorney and a Testamentary Document.
Each one of these documents involves your decision on who to appoint to make decisions for you in the event you cannot as well as dispose of your estate following death. Think of it as appointing agents who will have exclusive authority to make a decision for you in the event you cannot.
Healthcare Surrogate. This document gives your agents the authority over your healthcare needs. Your medical doctor and staff will be able to communicate with your agents on what is happening to your health and what is best for you given your condition. They will also be given the ability to apply for insurance coverage and review your healthcare records in order to make a properly informed decision involving next step health needs.
Different States have different laws on the formalities of this instrument. Florida only requires that there be two witnesses and the maker’s signature acknowledged by a notary public. One of the witnesses cannot be associated with the maker by blood or descent. Other states may only require one witness and the acknowledgement of the maker’s signature by a notary public. The attorney you choose to review your documents can review your forms (assuming you are coming from another State) and immediately tell you if your out-of-state Healthcare Surrogate meets the formalities of Florida Law.
Living Will. This document gives your agents the ability to initiate the termination of life (usually referred to as pulling the plug) if there is no possible recovery from the medical condition you are suffering from. In most cases the medical team overseeing your care will inform your agent that there is nothing else they can do and give options such as removal of a feeding or ventilation tube.
Florida only requires two witnesses and no notary public acknowledgement. The Living Will (sometimes referred to as an Advanced Directive) must have instructions on what to do should the person be in a terminal, end stage or persistent vegetative condition. In Florida, the Healthcare Surrogate and Living Will can be combined into a single document. Other States may require that they be separate instruments with different formalities when it comes to signing the forms. Once again check with the attorney of your choice to review your out of State forms.
Durable Power of Attorney. This document generally gives your agent the authority to manage your financial and contract matters. It allows your agents to pay bills, make investment decisions, prepare for such things as selling your property, applying for Medicaid and new government programs you become eligible for to name a few. It is generally considered the most powerful instrument you will possess while alive. Without this instrument, your loved ones would not be able to manage your residential property because they would not be in a position to pay your electric, water, mortgage, insurance and other miscellaneous bills you might incur while lying in a hospital bed. Although it is true, your family members could pay those bills using their own money, but just how long will that go on before it becomes economically unwise to continue.
The person you select as your Durable Power of Attorney agent must be of impeccable honesty because you are giving them the right to invade your assets without the law overseeing their acts. However, if you want court intervention, then in that case consider getting a volunteer guardianship. A discussion involving a volunteer guardianship is outside the scope of this article, but is worth discussing with the attorney of your choice.
A Durable Power of Attorney requires certain formalities in Florida such as two witnesses and your signature acknowledged by a notary public. Florida law uses the term that it must be executed in the same manner as a deed. Other States do not follow this formality and because of that your out of State Durable Power of Attorney may not be useful at your local bank or for real property transfers. Check with the attorney of your choice to have your out of State document reviewed to be sure it will be honored in Florida.
Testamentary Documents. These documents consist of a Trust or Will. Generally speaking, you should consider a Trust to be operable during life and after death. A Will on the other hand only becomes operable following death. Which is a better instrument will be dependent on what you are trying accomplish. In a majority of cases, the Will is the better one economically but lacks the authority to care for your assets while you are alive should you be hospitalized for extended periods of time.
If you are hospitalized for long periods of time (such as a COVID case), a Trust might be the better instrument because it would give your successor Trustee the ability to step into your shoes and manage your trust titled property. Think of it as a Durable Power of Attorney, but only for those assets titled in the name of the Trust. Any asset that is not titled in the name of the trust will rely on your Durable Power of Attorney agent to manage those assets (e.g. cars, boats, airplanes, purchase of new property).
As you can see being prepared in the event a worse case situation to your health should occur is invaluable. If you are concerned about your health and the “what if” question might happen to you requiring hospitalization for multiple days, talk to an attorney of your choice about a solution to manage your property and person – especially the payment of monthly recurring bills and healthcare decisions.
This article is intended for informational use only and is not for purposes of providing legal advice or association of a lawyer – client relationship.
James W. Mallonee (Jim Mallonee) is a graduate with a B.A. degree from the University of South Florida and a Master of Science degree from Rollins College in Winter Park, Florida. He obtained his Juris Doctorate from the University of the Pacific, McGeorge School of Law in Sacramento, California. Prior to returning to Florida to practice law, Mr. Mallonee was employed by Intel Corporation for 22 years in such locations as New Jersey, Florida and California.
In addition to being a member of the Florida Bar since 2003, Mr. Mallonee serves on the Charlotte Community Foundation Committee for asset allocation and teaches Business Law at State College of Florida. Mr. Mallonee is also on the Board of Directors for the Military Heritage Museum located in Charlotte County, Florida.
His firm practices law in the following areas: Probate, Wills & Trusts, Guardianships, and Litigation in the areas of Real Estate, Guardianships and Estates. The firm has two locations in Venice and Port Charlotte, Florida.
James W. Mallonee, P.A.
946 Tamiami Trail, #206
Port Charlotte, FL 33953
(941) 206-2223
Facsimile (941) 206-2224
871 Venetia Bay Blvd., #225
Venice, FL 34285
(941) 207-2223