Incapacity Planning: What if you’re alive, but can’t manage your own finances or healthcare?

Let’s talk about Incapacity.


Having a solid estate plan is about more than just what happens to your stuff after you pass away. A solid estate plan includes strategies to manage your affairs if you become incapacitated during your life and can’t make decisions for yourself. Learn about why you need an incapacity plan and how you can empower your loved ones to make financial and healthcare decisions for you – and saving everyone time, money and unnecessary drama.

What happens without an incapacity plan?

Without a comprehensive incapacity plan, your family will need to go to court and ask a judge, who doesn’t know you or your family, to appoint a guardian or conservator to take control of your assets and healthcare decisions. Once appointed, this guardian or conservator will make all personal and medical decisions on your behalf and will continue to be court-supervised until you regain capacity or pass away. Until you regain capacity or die, you and your loved ones could face an expensive and time-consuming guardianship or conservatorship process. This gets worse if your loved ones can’t agree on who should take charge or on what decisions to make.

Finances during incapacity

If you are incapacitated, you are legally unable to make financial, investment, or tax decisions for yourself. Who is going to be able to pay your bills, manage investments, run your business or file tax returns?

Healthcare during incapacity

If you become legally incapacitated, you won’t be able to make healthcare decisions for yourself. Because of patient privacy laws, your loved ones may even be denied access to medical information during a crisis and end up in court fighting over what medical treatment you should, or should not, receive. Do you remember the Terry Schiavo case? Her family was involved in a 15-year legal battle over her guardianship, healthcare and end-of-life issues!

These are 5 essential tools you can put in place before you become incapacitated:

  1. Durable Power of Attorney:

This legal document gives your agent the authority over your finances and property, such as paying bills, filing tax returns, selling real               estate, dealing with insurance and other financial matters that are described in the document. In Florida, the durable power of attorney           goes into effect as soon as it is signed. This is a powerful document and if it is in the wrong hands, it could be misused. You should seek           the advice of an attorney on the proper use and scope of this document.

  1. Living Will and Appointment of Healthcare Surrogate:

    This legal document shares your wishes regarding end of life care if you become incapacitated. It also allows gives your agent the authority to make healthcare decisions if you become incapacitated.

  2. HIPAA authorization:

    This legal document gives your doctor authority to disclose medical information to an agent selected by you. This is important because health privacy laws may make it very difficult for your agents or family to learn about your condition without this release.

  3. Designation Naming Pre-Need Guardian:

    This legal document allows you to name someone in advance to act as your Florida Guardian if you become incapacitated and if a judge decides that you need a guardianship. The document also allows you to say who you do not want to be your guardian.

  4. Revocable Living Trust:

    This legal document has three parties to it: the person who creates the trust (you might see this written as “trustmaker,” “grantor,” or “settlor” — they all mean the same thing); the person who legally owns and manages the assets transferred into the trust (the “trustee”); and the person who benefits from the assets transferred into the trust (the “beneficiary”). Typically, you will be the trustmaker, the trustee, and the beneficiary of your own revocable living trust. But if you ever become incapacitated, your designated successor trustee will step in to manage the trust assets for your benefit. Since the trust controls how your property is used, you can specify how your assets are to be used if you become incapacitated (for example, you can authorize the trustee to continue to make gifts or pay tuition for your grandchildren).

Is your incapacity plan up to date?

Once you get all of these legal documents for your incapacity plan in place, don’t just stick them in a drawer and forget about them. (In fact, many banks prefer that you update your power of attorney every three to five of years, to keep the document from going “stale.”) You need to review and update your incapacity plan periodically and when certain life events occur, like moving to a new state or losing a spouse. If you keep your incapacity plan up to date and make the documents available to your trusted helpers, you can save time, money and unnecessary drama. Do you want to learn more about how attorney Myrna Serrano Setty can help you protect yourself and your loved ones? Contact her law firm today at (813) 514-2946.

Adulting is Hard. Are you the “family adult”?

In many families, there’s that one person who in times of crisis, rises to the occasion and takes charge. That’s the “family adult.” If you are the “family adult,” you already know it. Unfortunately, it’s a tough job that you didn’t apply for and can’t really quit. And what’s unfair is that things can get worse when it comes to aging relatives. As your relatives age, who do you think your family will turn to for help? You.

Without a well-designed estate plan, families are guaranteed to face emotional or financial crises that not even the “family adult” can fix. As the “family adult,” you can choose to feel resentful of the situation or you can plan ahead and encourage your relatives to create or update their estate plans. Not only will a well-designed estate plan make your life easier, it can help you prevent disasters. And in the event of a death or a medical crisis, you will have the necessary tools to handle the situation.

For example, if your aging parents become incapacitated and can’t handle their own financial matters, with a Durable Power of Attorney, you can help them. Estate planning also involves ensuring that there are enough funds available to pay for health care, rehabilitation or nursing home facilities. If you plan now, before a chronic or terminal illness strikes, you can secure tools like life insurance policies with benefits access riders, which provide cash access for medical care or other expenses. Adulting is hard. With a well-designed estate plan, you will have the tools to do it right.

Give us a call today at (813) 514-2946 to learn about customized estate planning solutions for you and your family.

Embracing the Emotional Side of Estate Planning

For many folks, just the idea of creating an estate plan sounds dreadful, like getting a root canal. Yes, estate planning touches on uncomfortable topics like end-of-life decisions and incapacity. But there’s a way to tap into the emotional nature of these heavy topics and come out with something positive. Here are some ways in which emotion in estate planning is beneficial and why you and your loved ones are better off with a trusted estate planning attorney by your side:

1. Estate planning creates stability in times of loss.

If you end up in a state of incapacity, it’s guaranteed to be a difficult time for your family. But if your estate plan doesn’t include detailed instructions for a trusted decision maker and an actionable long-term care plan, it’s guaranteed to be even worse. With a well-designed estate plan, you can save your loved ones from the confusion about what to do and the pressure to make rushed choices. That allows your loved ones to save their energy to deal with the situation.

2. Comprehensive estate plans keep emotional matters private.

Detailed, trust-based estate planning with lifetime beneficiary directed trusts keeps your private matters private. If you only do the bare minimum, you run the risk of your estate going through probate, a court process. This means that those outside your inner circle will know about your planning. Because of the notice requirements, probate can also invite controversy and conflict, which a private transfer would have avoided.

3. Estate planning can bring a family together.

We’ve all heard stories about siblings arguing over what their parents left them as beneficiaries. But when you get your family and other loved ones involved in your estate planning process, you gain a wonderful chance to show them how much you care. Creating your estate plan can strengthen family relationships and serve as a reminder of those bonds for years to come.

4. Your estate is about much more than money.

Estate planning is about a whole lot more than distributing wealth and minimizing taxes. During an estate planning session, we can talk about family heirlooms, your hobbies, and other matters unique to your life. We can even look into the memories and personal property you want to leave your beneficiaries, such as photos, art, and even family videos. What do you want your family’s legacy to be?

5. With an estate plan, you’re not alone!

A trusted estate planning attorney can do the heavy lifting and help educate your appointed agents about their duties. This can give you peace of mind, knowing that your family will be in good hands if anything happens to you. The idea of figuring this out on your own can be a stressful one, but these emotional decisions are much easier to make with a trusted advisor by your side.

Estate planning is a chance to look at some of life’s big questions. Give us a call today at (813) 514-2946 to learn how we can create custom-made solutions that help you address these big questions and show your family that you care.

Do It Now: Name a Guardian for Your Minor Children

This is heavy stuff! The thought of not being around to raise your children feels crushing and too horrific to consider. But if you don’t name a guardian for your children and you pass away or become incapacitated while they are minors, a judge who doesn’t know you, your children or your family will decide who raises them. Families tend to fight over children, especially if there’s money involved. And what if you have family that you don’t want raising your children?

How to Choose a Guardian

Consider these factors when choosing candidates for guardians and back up guardians:

● How well the child and potential guardian know and enjoy each other

● Location – if the guardian lives far away, your child would have to move from a familiar school, friends, and neighborhood. If your guardian is not local, do you have someone locally that could serve temporarily?

● Parenting style, moral values, educational level, health practices, religious/spiritual beliefs

● The child’s age and the age and health of the guardian-candidates:

  1. A younger guardian, especially a sibling, may be concentrating on finishing college or starting a career.
  2. An older guardian may become ill and/or even die before the child is grown, so there would be a double loss.
  3. Grandparents may have the time, and they may or may not have the energy to keep up with a toddler or teenager.

● Emotional preparedness:

  1. Someone who is single or who doesn’t want children may resent having to care for your children.
  2. Someone with a house full of their own children may or may not want more around.

WARNING: Don’t spring this job on anyone without talking to them first. Ask your top candidates if they would be willing to serve, and name at least one back up in case the first choice becomes unable to serve.

Who’s in Charge of the Money

Raising your child should not be a financial burden for the guardian, and a candidate’s lack of finances should not be the deciding factor. You will need to provide enough money (from assets and/or life insurance) to provide for your child. Some parents also earmark funds to help the guardian buy a larger car or add onto their existing home, so there’s plenty of room for extra children.

Consider these factors when choosing who will handle the money:

● Naming a separate person to handle the money can be a good idea. This can work like a checks and balances system.

● However, having the same person raise the child and handle the money can make things simpler because the guardian would not have to ask someone else for money.

● But the best person to raise the child may not be the best person to handle the money and it may be tempting for them to use this money for their own purposes.

You Will Probably Have to Compromise

No one will ever be able to replace you perfectly. You may have to make compromises in some areas. Choose the person who you think would do the best job. Know that you can change your mind and select a different guardian anytime you’d like.

Let’s Continue this Conversation

The odds are that at least one parent will survive until your child is grown. But by naming a guardian, you are being responsible and planning ahead for an unlikely, yet possible, situation. I know it’s not easy, but don’t let that stop you. I’m here to guide you through this process and legally document your wishes. You’re a parent and your job is to provide for and protect your children, so let’s do this – together. Call my office at (813) 514-2946 now for an appointment and we’ll get your children protected.