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Hopeful, but planning for the inevitable

September 1, 2017
By ERIC FEICHTHALER - Real Estate Law , Cape Coral Daily Breeze

Mr. Feichthaler:

I have been a resident of Cape Coral with my husband for 29 years, and our retirement from law enforcement in the Philadelphia has been well spent here. My husband has been diagnosed with advanced, Stage IV lymphoma. The doctors do not believe anything can be done to cure my husband, or even significantly extend his life. We are optimistic people, but need to plan for the worst. We have never made an estate plan or signed any kind of power of attorney. Due to his illness, can we make those plans now? What are the consequences if we don't make any plan?

- Florence S.

Dear Florence,

Thank you for sharing your situation with me. My grandfather passed away from lymphoma after retiring here, so I can understand how much this diagnosis is impacting your family. Any adult can make a will and sign other documents so long as they are mentally capable to do so. That is, your husband would need to understand the documents he would sign, and the consequences to them. I strongly recommend he sign a Durable Power of Attorney that would enable you to sign any financial documents on his behalf. Also, a Health Care Surrogate and Proxy is highly advisable, which would give you powers to manage his medical care.

From a real estate perspective, you will want to title the property in a way to avoid probate. I mention often the importance of planning to avoid the costs, time and headache of probate. Assuming you and your husband own the home together, it is likely that no immediate action will need to be taken. You would own the home if he passed away, if you own the property as husband and wife. However, the surviving spouse should strongly consider an Enhanced Life Estate Deed or Revocable Trust, so that the home can pass automatically to your heirs or beneficiaries. Depending on your overall assets and status of your heirs, a trust may be recommended.

If you make no plan, any assets in your husband's individual name could be subject to probate. I would highly recommend you contact an attorney at the earliest opportunity to discuss your situation, and determine the best route forward to protect assets and insure they go where your family expects they will.

Eric P. Feichthaler has lived in Cape Coral for 28 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continued his service to the community through his chairmanship of the Harney Point Kiwanis Club KidsFest from 2011-2015, which provides a free day of fun and learning to thousands of Cape Coral families, and funds numerous scholarships. He has been married to his wife, Mary, for 14 years, and they have four children together. Recently, he earned his board certification in Real Estate Law from the Florida Bar. He is also a Supreme Court Certified Circuit Civil Mediator.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.



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