No one likes to consider the possibility that they may become incapacitated, either temporarily or permanently. But recent events have made it clear that it is important to plan for the unexpected. How can you protect yourself and assist your family if you become ill? Who will make medical, legal, and financial decisions for you until you regain your health? Even if you are married or have a trusted partner, in most instances you must grant that individual decision-making authority through advanced directives authorizing them to act on your behalf. If you have not already done so, you should consider a Durable Power of Attorney, a Health Care Surrogate, a Living Will, and perhaps a nomination of Pre-Need Guardian. In some situations, if you have failed to execute these documents in advance, your family’s only alternative will be to seek a court appointed guardian in order to obtain the legal authority necessary to act on your behalf.
Durable Power of Attorney A Durable Power of Attorney (DPOA) is a document by which one person (the principal) gives legal authority to another (called the agent or the attorney-in-fact) to act on behalf of the principal. The DPOA allows your agent to transact financial, personal, or health care decisions for you. The DPOA ceases to be valid at your death. Under Florida law, the DPOA does not require a specific determination of incapacity to be made by a doctor. A DPOA may be given to any person or financial institution, but this should be done with great caution because of the ease with which a power of attorney may be used. The current durable power of attorney statute may allow the agent to make health care decisions. But that authority to make health care decisions, as well as all other delegated authority, must be carefully specified in the document.
In 2011, the Florida Legislature significantly revised Chapter 709 of the Florida Statutes which created the Florida Power of Attorney Act. The updated Act allows you to grant broader authority to your agent to make important estate planning decisions for you, such as changing the beneficiary designations on IRAs or life insurance policies, making gifts, creating or revising a trust. If you choose to include these special powers in your document, the statute requires that each special power be separately enumerated and initialed by you.
The agent under your power of attorney is a fiduciary and must act in your best interest. But the agent may act until you revoke the power of attorney, until you die, or until you are adjudicated incapacitated by a court. You must choose your agent carefully and thoughtfully.
Health Care Surrogate. The Health Care Surrogate (HCS) is essentially a medical power of attorney. It is a written document designating a surrogate to make health care decisions for you or to receive health care information on your behalf. It must be signed by you in the presence of two adult witnesses. The person that you are naming as a surrogate may not witness the document and at least one of the witnesses may not be a blood relative or a spouse. This process enables you to appoint another person to make any or all health care decisions for you and to spell out the guidelines for those decisions if you become incapacitated.
A patient is presumed under the law to be capable of making decisions for themselves until that patient is determined to be incapacitated. While you have capacity, the physician must communicate with you and your wishes are controlling. Florida Chapter 765 details the procedure that the health care facility must follow in order to determine your capacity. Alternatively, you may designate in your Health Care Surrogate document that the authority of the surrogate is to take effect immediately. If such immediate authority is granted to the surrogate, then they may act for you without the necessity of a determination of capacity being made.
A Living Will. A Living Will under Florida Law is a written or oral declaration which allows you to state, in advance, your wishes regarding the use of life prolonging medical care if are unable to communicate. The document should clearly address the issue of whether you want a feeding tube in the event you are in a terminal condition, a persistent vegetative state, or have an end-stage condition.
A written Living Will needs to be signed in front of two witnesses. In Florida, a Living Will does not have to be notarized. However, there are a few states that do require either three witnesses or sometimes a notary. One of the witnesses may not be a blood relative of the patient. If the principal is physically unable to sign the Living Will, one of the witnesses must subscribe the principal’s signature in the principal’s presence and at the principal’s direction.
A Living Will may also be a witnessed oral statement made by the principal expressing the principal’s instructions concerning life prolonging procedures.
If a person has made a Living Will expressing his or her decisions concerning life prolonging procedures, but has not designated a surrogate to execute those wishes concerning the life prolonging procedures or designated a surrogate under a Designation of Health Care Surrogate Statute, the attending physician may proceed as directed by the patient in the Living Will. If a dispute or disagreement concerning the physician’s decision to withhold or withdraw life prolonging procedures occurs, the attending physician shall not withhold or withdraw procedures until there is an emergency review pursuant to the statute. If review of the disputed decision is not sought within seven days following the attending physician’s decision to withhold or withdraw life prolonging procedures, the attending physician may proceed in accordance with the patient’s instructions as set forth in the Living Will.
Before proceeding in accordance with a principal’s Living Will, it must be determined that: a) the principal does not have a reasonable medical possibility of recovering capacity; b) the principal has a terminal condition, end-stage condition or is in a persistent vegetative state; and c) any limitations or conditions expressed orally or in a written declaration have been carefully considered and satisfied.
Health Care Proxy in the Absence of an Advance Directive. If an incapacitated or developmentally disabled person has not executed an advance directive, or designated a surrogate to execute an advance directive or the designated surrogate is no longer available to make health care decisions, health care decisions may be made for the patient by a health care proxy in the order that is set forth in Florida Statute 765.401. The individuals who are designated to act as proxy under the statute begin with: a judicially appointed guardian of the patient; the patient’s spouse; the adult child of the patient or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation; the parent of a patient; the adult sibling of a patient; an adult relative of the patient who has exhibited special care and concern for the patient and who has maintained regular contact with the patient and who is familiar with the patient’s activities, health and religious or moral beliefs; or a close friend of the patient.
Pre-need Guardian. On occasion, a person becomes incapacitated without having prepared a Durable Power of Attorney, Designation of Health Care Surrogate, or other advance directives. In that case, a court supervised guardianship may be necessary, particularly if there are financial actions which must be undertaken or legal decisions which must be made on your behalf. The court will appoint and supervise a guardian to make some or all financial, legal, and health care decisions for the incapacitated person. If you have designated a Pre- Need Guardian, that individual will be entitled to preference in appointment to act as your guardian. But the appointment of a guardian is typically an expensive and time-consuming procedure which can be avoided by the execution of appropriate advance directives.
Take some time to plan. Decide who will act for you to make financial decisions from simple bill paying to managing your retirement accounts. Consider who will make your medical decisions if you are unable to communicate with your physicians. We are glad to help you, whether as part of a comprehensive estate plan consisting of a will or a revocable trust or just to discuss getting the advance directives in place.