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Durable Powers of Attorney, Health Care Surrogates and Living Wills
You probably have heard of a”Last Will and Testament” or a “Living Revocable Trust,”documents that assist in post-death distribution of assets, payment of debts, and the appointment of a Personal Representative/Trustee to oversee same. However, you should also know about three lesser known, but very important, Estate Planning documents that govern many pre-death decisions: the “Durable Power of Attorney,” “Health Care Surrogate” and “Living Will.”
Durable Power of Attorney
A Power of Attorney is a legal document that authorizes another person to act for you as your “Attorney-in-Fact” (“AIF”). Powers of attorney can be limited in scope — such as when you cannot attend a Real Estate closing where your signature is required and you must name someone to sign for you — and are automatically revoked upon your incapacity.
However, a Durable Power of Attorney(“DPA”) is much broader. It remains in effect and is not revoked upon incapacity. Thus, if you become incapacitated, whether physically or mentally, due to accident or illness — such as coma, a stroke, Alzheimer’s disease or another debilitating illness — and are then unable to handle your own affairs, a DPA would permit your designated AIF to act in your stead. Without a DPA, an incapacitated person would be unable, for example, to sell or mortgage his or her home because of a then-inability to sign the contract, deed or mortgage. In such a situation, Guardianship/ Incompetency proceedings would have to be commenced to request that a Guardian be appointed by the court to represent the interests of the incapacitated person.
The DPA eliminates, in most cases, the need for costly and time-consuming Court proceedings by granting the AIF the power and authority to act on behalf of the incapacitated person.
An AIF can be a person of sound mind who is at least 18 years of age; a financial in-stitution with trust powers that has a place of business and is authorized to conduct business in Florida; or a non-profit corporation organized for charitable or religious purposes in Florida.
Although you may be conflicted about whom you should name as your AIF, it is suggested that you name the person whom you most trust, who has the same values as you do and who would make the same decisions you would have made. Do not name someone simply to avoid ruffling feathers, because you think he or she will be angry if he or she is not named as AIF.
Health Care Surrogate
A Health Care Surrogate (“HCS”) designation names someone to make medical decisions for you (including speaking to your doctors, obtaining copies of records and making other health-related
decisions) when you are unable to do so. The Health Insurance Portability and Accountability Act (HIPAA), which went into effect in 2005, is a federal privacy law which guards the privacy of your medical information from others, including your spouse, significant other, family members, friends and even the individual or individuals previously appointed as your AIF and/or HCS.
The HIPAA law requires very specific release language to permit your physicians, healthcare professionals, dentists, health plans, hospitals, clinics, laboratories, pharmacies and/or other health care providers to furnish information to your HCS. Absent this language, your HCS may be denied access to your doctors, records and/or information at the time he or she needs access the most, and, in such instance, you may be forced to pursue Guardianship/Incompetency proceedings.
Both the DPA and HCS are automatically terminated upon death, because, when you die, your Will or Trust governs any remaining decisions that have to be made on your behalf. Do not use someone’s DPA after he or she has died, because you may be subjecting yourself to both civil and/or criminal liability for doing so.
Living Wills
The Living Will permits you to declare that, in the event of some terminal injury, illness or disease where death is imminent, you do not want to be force-fed intravenously or otherwise artificially kept alive on a respirator. Affording you “death with dignity,” the Living Will is an important Estate Planning tool, because it allows you, rather than your family, to make the final decision on life-ending or death-delaying treatment and relieves the pressure from family members having to decide what you would have wanted.
Don’t wait until
it’s too late
Most people do not understand the importance of the foregoing documents until a loved one becomes incapacitated — and by then, it may be too late to execute these documents, if the incapacitated person does not have the capacity to understand what he or she is signing, thus making it necessary to institute Guardianship/Incompetency proceedings to obtain the Court’s authority to transfer assets or make health care or other decisions.
In the 2005 Terri Schiavo case, the patient suffered cardiac arrest at age 25 and was in a persistent vegetative state for 15 years while her husband and parents battled in court about who had the right to make decisions for her and what decisions she would have made. Her case highlights how essential these documents are and why they are so important to execute NOW, while you are physically and mentally healthy enough to do so – and so your family is not burdened by your subsequent incapacity any more than necessary.
ADAM S. GUMSON, ESQ., of JUPITER LAW CENTER,
graduated from Duke University and the University of Florida College of Law (with Honors). He handles Estate Planning (including Wills, Trusts, Durable Powers of Attorney, Health Care Surrogates and Living Wills), Probate Estates throughout Florida and Family Law (Divorce/Paternity), lectures locally and teaches adult law classes at Jupiter High School.
1102 W. Indiantown Road, Suite 7
Jupiter, FL 33458-6813
Phone (561) 744-4600
www.JUPITERLAWCENTER.com
