Father’s Day is a great time to reflect back to old memories with Dad. Remember when you built a fort in the living room? Remember how he taught you to ride a bike or drive a car? Remember how you taught him the art of video gaming? There are lots of obvious reasons to appreciate your father.
This Father’s Day takes the time to think about his future and how it would affect the family if he was no longer around. The way to ensure the family’s peace of mind is for Dad to get organized and have all his legal documents in place. It may not compare to your fishing trips, but getting your father a fool-proof estate plan will provide the type of security that all fathers want for their family.
An estate plan does not need to be complicated. Estate planning simply means sitting down with an attorney and writing your wishes on paper and then putting those wishes into action. Dad will write his wishes regarding who gets his “stuff.” By “stuff” we mean assets such as real estate, cars, jewelry, money in bank accounts, proceeds from life insurance policies, pension plans, etc. He will also write who he wants to properly carry out those wishes once he passes away.
Common estate planning documents often start with a Last Will and Testament (“Will”). A Will allows Dad to name specific beneficiaries (those who will inherit) and exactly what they should receive upon his death. A Will also allows him to name guardians if he has any minor children. If the family dynamic is a bit more complex, such as second or third marriages with children from prior marriages, he may opt for a Revocable Trust, also known as a Living Trust.
A Living Trust can be created and changed, updated, or amended during Dad’s lifetime because the creator of the Trust will be the Trustee. Once the Trustee passes away, whoever Dad nominated as his back-up Trustee “steps into his shoes” and distributes assets to the listed beneficiaries. Distribution of assets by way of a Living Trust entirely by-passes the probate process. This means that upon one’s death, all assets in the Trust pass to the beneficiaries through the Trust, and not through any court process. Trusts can also provide beneficiaries with asset protection. Upon inheriting any monies or assets through a Trust, the beneficiary enjoys financial protection from future creditors, divorces, and bankruptcy. This is typically why a Trust works best for those in blended families.
Many people think about estate planning in the context of someone dying, but it is equally important if Dad becomes sick, injured, or incapacitated and cannot make decisions for himself. Having a Durable Power of Attorney for financial and legal matters and a Health Care Surrogate for medical decisions will ensure someone can manage his care and finances if he no longer can.
- Durable Power of Attorney – A crucial legal document that functions while your father is alive and allows him to select a person (the “agent”) to “step into his shoes” if he becomes mentally or physically incapacitated. The agent will be able to make legal and financial decisions and conduct transactions on his behalf. The Power of Attorney document ends when a person passes away. At which point, the Trust or Will should kick in to dictate the terms of how to distribute his estate. Note that if Dad created this document prior to October of 2011, it is time to update it as the laws in Florida have changed.
- Health Care Surrogate & Living Will –Also known as a Health Care Proxy, allows Dad to name someone (the “agent”) that will make health care decisions for him in case he can no longer make them himself. Such decisions include consenting to certain medical procedures, seeking a second opinion, obtaining medical records, or transferring him to a different medical facility.
With Father’s Day coming up, take the opportunity to have an open discussion with Dad regarding his plans for the future. Contact OC Estate & Elder Law at (954) 251-0332 or info@ocestatelawyers.com to receive a personalized consultation regarding all of Dad’s estate planning options. We understand the love you have for your aging parents and will help protect your family as well as your peace of mind.
