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Advance Directives and Your Legal Authority For Missing Family Members – What Do You Do?

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Advance Directives and Your Legal Authority For Missing Family Members – What Do You Do?
Posted on: July 28th, 2014
By: Mary Merrell Bailey, Esq. CPA MBA MSTax MSAcctg

Acting as a Successor Trustee – Advance Directives and How They Affect You  

The news is full of speculation as to the whereabouts of Malaysia Airlines Flight 370.  The March 8, 2014 flight from Kuala Lumpur to Beijing disappeared.  No trace of the plane – or its 239 passengers and crew – has been found yet.

If your Aunt Miniver were on MH370, what documents would give you the legal authority to transact her affairs while she is missing?  Additionally, if she was in an accident, did she name you to handle her advance directives? Your Orlando estate planning lawyer should help you with the following:

Did Aunt Min name you as Successor Trustee in her revocable living trust?  If yes, you seamlessly could step right into the role.

If your Aunt Min named you as her agent under her Durable Power of Attorney, you could act on her behalf to protect her financial and civil rights.

If there was an accident, can you navigate your Aunt’s advance directives and requested care?

If your Aunt has no legal documents appointing you as her fiduciary, things get a bit stickier – and more expensive – to pursue, as the court would have to bestow authority on you.  The Orlando estate planning attorneys at Your Caring Law Firm can help you navigate this path.

How To Handle the Estate Plan of a Missing Person

As of the date of this writing, the passengers on MH370 are considered missing persons under Florida law, as they have not been rescued, there is no evidence to show that they have been killed, and their bodies have not been found.

There are two steps to handling of the estate of a missing person – the estate administration and the declaration of death. You will need to hire an estate planning attorney who handles probate and estate matters to help you with both steps.

Next Steps – What Your Orlando Estate Planning Lawyer Can Do For You

First, the attorneys at Your Caring Law Firm would petition the court to allow you to administer your Aunt Miniver’s estate under Florida elder law Statute section 733.209.  You might have to act in this capacity for up to five years, however, as the court will not appoint you (or anyone else) to be the personal representative (known as Executor in other states) until the court determines your Aunt Miniver is dead.

Second, Aunt Min will be presumed dead at the end of five years if a diligent search does not satisfactorily explain her whereabouts (F.S. 731.103(3)).  If the search turns up evidence that Aunt Min is dead, the court can declare Aunt Min dead at that time.  Finally, if the investigation into the disappearance of MH370 reveals that Aunt Min was exposed to a “specific peril of death,” then the court can declare Aunt Min dead before the five year period is over.

Our hope is that the mystery of the missing airplane is resolved and everyone returns home safely.

If you have questions about how your estate planning attorney can help you with advance directives and elder law contact Your Caring Law Firm today.

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