Advanced directives are a vital part of your estate planning.
Advanced directives allow others to know what medical treatment you want or what you would like to see happen with your finances and property. If you do not have advanced directives then medical care providers and financial institutions will have no one to look to for an expression of your wishes should you become incapacitated. The alternative in that situation is court involvement and most individuals would like to avoid court involvement in their personal lives. That is why is so important to have advance directives in place.
There are three types of commonly used advanced directives in the state of Florida:
- Durable Power of Attorney
- Health Care Surrogate and
- Living Will.
Durable Power of Attorney
A Durable Power of Attorney allows you to appoint a person or persons to manage your finances and your property. You are considered the principal and the person you appoint is considered your agent. Your Agent is frequently referred to a “Attorney-in-Fact” (AIF). An AIF is responsible for standing in your shoes and making decisions regarding your finances and property as you would have intended. Florida Law currently only recognizes the creation of a Durable Power of Attorney. Powers of Attorney created prior to October of 2011 may be called something other than Durable. The term “Durable” in this context, means the authority you give your agent to exercise decisions on your behalf survives your incapacity. Which means, in practical terms, that the moment you appoint an AIF, they have authority to make decisions regarding your property. It does not require you to be deemed incapacitated. That is why is very important that you trust the person you appoint as you agent and that you have a very thorough discussion with an Elder Law attorney about the authorities you wish to give you AIF. Additionally, is important to see an Elder Law Attorney regarding your Power of Attorney because NOT ALL DURABLE POWERS OF ATTORNEY ARE CREATED EQUAL. The authorities an older individual may need in their power of attorney are often not the same authorities you would find in a that of form used by a general practice attorney. In Florida, if an authority isn’t listed in a Durable Power of Attorney or if certain authorities in the documents are not specifically initialed next to, your agent will be prohibited from performing those acts.
Health Care Surrogate
A Health Care Surrogate appoints an individual or individuals to make decisions regarding your health care. While you have decision making capacity, your wishes remaining controlling. However, the document gives your loved ones or trusted individuals the ability to review your medical records and to participate in the health care decision making process. This is especially important should you become incapacitated and unable to express your wishes.
There is no legal requirement to complete an advance directive. However, when you make an advance directive and discuss it with the significant people in your life, it will better serve your wishes to be carried out the way you want.
A living will is an expression of your desire to end life prolonging procedures in the event your treating physician and a consulting physician have determined that there is no reasonable medical probability of you recovering from your condition without the use of life support. In the document you are also able to chose in what situations you would like for life prolonging procedures to be stopped or alternatively, implemented. By executing a document like this, you are giving your family members and loved ones directions for your care during a very emotionally difficult time.
When choosing a person to act as either an agent under a durable of attorney or a surrogate under a health care surrogate there is no requirement under Florida Law that you seek the consent or permission of the person or persons you appoint. However, it is important to ask them if they agree to take on this responsibility. If they decline to serve in either of these capacities, your plan for your future care can falter. You should discuss with them what matters you want handled and what you ultimately want to see them do with your property and health care treatment. Have an open conversation with the person you plan to appoint as your agent or surrogate so they can tell you honestly whether they are able to perform those tasks on your behalf.
Once you have executed these advance directives it is advisable to keep the originals some place safe and to provide copies to your health care providers and financial institutions. At Phillips & Finley LLC, for a small fee, we can scan all your original advance directives on a USB drive that can fit easily in your wallet.
At attorneys Phillip & Finley LLC we offer office consultations and we can also travel to you to make the planning process more convenient. We visit with clients at home, hospitals, nursing facilities and senior adult living communities. We will work with you to make sure logistics don’t get in the way of important decisions you need to make for the well-being of you or your loved ones. To schedule a consultation with a lawyer to discuss your needs call 386-734-5959.