Incapacity planning plays a huge part in estate planning because most people become incapacitated before they pass away. Incapacity planning documents include the health care surrogate designation, living will and durable power of attorney. The health care surrogate designation appoints individuals who will make health-related decisions on your behalf. The living will states which life prolonging measures you prefer (or don’t prefer) your agents to take. The durable power of attorney appoints individuals who will make financial-related decisions on your behalf. In Florida, the financial power of attorney must be durable. In other words, it cannot “spring” into effectiveness upon incapacity. Other states, however, allow for the springing power of attorney. The durable power of attorney statute further dictates certain powers that must be separately initialed by you to be effective.

Most individuals don’t fully understand how important incapacity planning is in an estate plan. If you don’t plan for your incapacity, then you may subject your family and/or close friends to an expensive and time-consuming guardianship process. Where there are no documents stating agents for incapacity, agents must be appointed by the court. The guardianship process can easily cost thousands of dollars and can take months to even years with the clogged up court systems.

Even after a guardian is appointed, the court will continue to monitor the guardianship every year (pursuant to additional fees) and approve major actions and decisions made by the guardian(s). All this can be avoided by executing the above mentioned incapacity planning documents (health care surrogate designation, living will and durable power of attorney) along with your last will and testament.

Contact the Attorneys of The Noble Law Firm, P.A. to assist you with your estate planning and/or probate needs.

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