Health Directives and Powers of Attorney

Powers of Attorney, Living Will, Health Care Surrogate and Pre-need Guardian Designations

These are important documents that most everyone should obtain and keep up-to-date. If you already have these documents in place, be sure that you have provided a copy to every individual named to act on your behalf or that they are aware of the location of the document and can access it if it is needed. It is always good to have these documents available electronically, particularly if you can retrieve them through your phone or other handheld device so they are easily accessible in the event of an emergency. You may also want to provide copies of those involving health care related powers to your family physician and those with financial powers to your accountant, banker, broker or other person who may ultimately need to work with the person to whom you have delegated certain powers if the power is exercised.

Power of Attorney

Through a power of attorney, you (the principal) may give another person (the agent or attorney in fact) the power to sign documents, write checks and do other acts for you. A power of attorney may give others the right to do almost any legal act that the principal could do. While most powers of attorney cease to be effective when the principal becomes incapacitated, a durable power of attorney remains effective when the principal is incapacitated so the agent can continue to sign documents, write checks and do other acts for the principal. Thus, a durable power of attorney may avoid a guardianship. However, all powers of attorney cease when the principal dies, so a power of attorney will not avoid probate. Thus, an attorney-in-fact may only take care of the principal's affairs while the principal is alive, and thereafter by the personal representative either named in your will or, if you do not have a will, appointed by the court takes over.

A power of attorney is a valuable document for a single person whose bank accounts and assets are not shared by anyone or for married couples who maintain separate accounts. A power of attorney is especially valuable for paying bills and protecting assets during periods of incapacitation. These powers may become immediately available upon execution or you can have the powers only become effective upon your incapacity whichever best fits your circumstance and desires.

Living Will

Under Florida law you may provide specific written directives stating your preferences regarding the use of life-prolonging procedures. A declaration of living will specifies your wishes regarding provision or termination of medical procedures if you are diagnosed with a terminal condition, have an end-stage condition or are in a persistent vegetative state. A living will is termed a "health care advance directive" because it is made in advance of incapacity and need. If you are unable to understand or unable to communicate with a doctor, a living will is a legally enforceable method of making sure your wishes are honored.

Health Care Surrogate Designation

You may designate a person to make health care decisions when you may not be able to do so. This is often of particular importance if you are a single person or a parent who does not have next of kin readily available and you want to ensure that someone locally available who is informed of your preferences is not prevented from assisting simply because they are not a family member. A health care surrogate designation, like a living will, is termed a "health care advance directive" because it is made in advance of incapacity and need.

A health care surrogate has no authority unless the attending physician has determined you lack the capacity to make informed health care decisions. Many medical providers prefer a designation of health care surrogate for health care decisions rather than a power of attorney because a health care surrogate designation is specific and narrow to health care.

Pre-Need Guardian Designation

You may also designate a person, bank or trust company to act as guardian of your person and property upon your death, or if you become incapacitated. If you fail to designate a guardian, the Court will do so for you if and when it becomes necessary. A declaration of pre-need guardian must be signed before becoming incapacitated. The law also allows a parent to name a guardian for his or her minor children by filing a pre-need declaration of guardian for minor.

We can prepare these vital documents for you either as part of a larger estate plan or to compliment the plan you may already have in place. Just contact The McCall Moody Law Firm today if you or a family member is in need of legal assistance and would like to set up an appointment.