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FAQs

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Guardianship Living Will
Health Care Surrogate Durable Power of Attorney
Revocable Living Trust Wills

 

What are advance directives for health care?

Advance directives are legal documents that can help ensure that a person’s independent wishes regarding health care will be followed, at a time when he can no longer speak for himself.  The most important documents for this purpose are the health care surrogate designation and the living will.

Why is it important to have advance directives for health care?

A health care surrogate designation can help avoid uncertainty regarding who would be making health care decisions for the principal (the person signing the document) in the event that he were to become unable to make decisions for himself.  The living will allows the principal to state in advance his directives about whether artificial life-prolonging procedures should be applied in certain extreme situations.  These documents also can preserve independence and avoid expense by helping to avoid the need for guardianship.

What would happen if I did not have advance directives and the time came when I was no longer able to make my own medical decisions?

Under Florida law, health care providers could attempt to locate a health care proxy. Florida Statutes 765.401 sets out a prioritized list of those who might be able to act as your health care decision-maker.  If no one in an upper category can be found or is willing to serve as proxy decision-maker, the provider may seek a proxy from the next lower tier. The problem is that the person found might not be someone you would choose to allow to make your decisions.  If no proxy can be found, or if certain other circumstances exist, a guardianship might have to be established.

Guardianship

What is a guardianship? 

If a person becomes incapacitated to make his own decisions, a court may appoint a guardian that is able to take over some or all of the person’s decisions.  A guardian of the person can make personal decisions for the ward, such as medical and residential placement decisions. A guardian of the property can manage the ward’s assets. A plenary guardian can make decisions of both types. Most guardianships are plenary.

What are the pros and cons of guardianship?

Having an appropriate guardian means that an incapacitated person’s financial, medical, and social decisional needs can continue to be met. A guardian generally must receive training and is accountable to the court for decisions that are made on a ward’s behalf. Annual accountings and reports must be made to the court. However, guardianship is expensive, time-consuming, and generally, the ward’s legal right to make decisions is taken away. If less restrictive alternatives like health care advance directives and financial documents are in place that appropriately name agents to take care of the alleged incapacitated person’s needs, guardianship may not be necessary.

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Health Care Surrogate

What is a health care surrogate designation?

A health care surrogate designation is a document that enables the maker to legally authorize the person of his choice to be his surrogate health care decision maker. This means that if a time comes when the principal has been determined by his physician to be unable to make decisions for himself, the surrogate he selected can make health care decisions for him. Designation of a health care surrogate can avoid the loss of time inherent with attempts to find a proxy decision-maker or set up a guardianship, can help avoid the possibility of unwanted persons becoming decision-makers under the proxy law, and can help avoid the need for a guardianship.  Because the health care surrogate is required by law to make decisions as the principal would have decided, if that decision is known, it can also help to preserve independent decisions of the principal even when he is incapacitated to speak for himself.

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Living Will

What is a living will?

A living will allows the principal to direct in advance what his personal decisions are regarding whether or not artificial life-prolonging procedures should be applied if the principal were to be in an end-of-life type situation or vegetative state. It can be specific or general. In addition to giving the principal more control over what will happen to him even at a time when he is unable to speak for himself, having a living will in place can avoid painful family conflict. It can give the patient’s family the comfort of knowing that they are allowing the loved one’s wishes to be followed and it relieves them of having to make these difficult decisions, themselves.

When are the decisions in a living will applied?

A living will only applies in very limited circumstances: when a patient can no longer speak for himself and his own doctor, plus a consulting doctor, both agree that the patient is either in a terminal condition, an end-stage condition, or a vegetative state, and that there is no reasonable medical hope of recovery.

What artificial life-prolonging procedures are involved?

Artificial life-prolonging procedures that can be provided or withheld include procedures, treatments, or interventions that sustain, restore, or supplant a spontaneous vital function -- in other words, procedures that keep up, restart, or stand in for a function that a body normally does automatically to keep a person alive. Some examples of life-prolonging procedures are: CPR if the heart stops, placement on a ventilator if lungs are not functioning properly, and insertion of a feeding tube if there is a loss of the ability to swallow.

If my living will says I do not want artificial life support provided, how do I know I will still get pain medication?

Florida law provides that if the living will is being followed and artificial life-prolonging procedures are being terminated or withheld, the patient will still receive pain relief and comfort care.

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Durable Power of Attorney

What is a power of attorney?

power of attorney is a legal document in which a principal authorizes an agent (called an “attorney in fact”) that can take actions concerning the principal’s financial matters as if the agent were actually the principal.  It can be general, covering just about any financial decision, or it can be limited to just one or two areas of decision-making. A regular power of attorney is only usable as long as the maker is mentally capacitated.  However, a durable power of attorney is still usable after the principal becomes incapacitated.

How can a general durable power of attorney help me? 

If it is right for a person and the agent is completely trustworthy, a durable power of attorney can often be very helpful.  This is especially so in the event of the incapacity of the principal, because the agent can use it to make granted financial decisions for the principal.  For instance, the agent may be able to pay bills for the principal using the principal’s account, arrange for repairs on personal property, hire attorneys or service providers, and sell or mortgage the principal’s house.

Is a general durable power of attorney right for everyone?

The durable power of attorney is a double-edged sword. It can be very helpful, but in the wrong hands, it can be extremely dangerous. The agent has a duty to use your resources only for your benefit, and can be sued if he misuses assets. However, it may be hard to recover the funds after the document has been abused. Third parties relying on the presentation of a valid durable power of attorney are generally protected from suit. It is extremely important that a principal only give these powers to a person the principal completely trusts.

What if I change my mind about having given an agent powers under a durable power of attorney?

A principal may revoke a power of attorney at any time that he is still capacitated. However, the law provides for notice to be given in very specific ways.  The assistance of an attorney is extremely important in revoking a power of attorney, to ensure it is done correctly.  An elder law attorney specialist would be most knowledgeable in this area.

My Florida durable power of attorney says that I give the agent the right to make health care decisions. Does that mean it is the same as a health care surrogate designation?

It has a similar effect, but is not quite the same.  Florida Statutes 765 lays out rules regarding when and how health care decisions can be made by a health care surrogate.  The health care surrogate designation is only usable when the principal’s attending physician has determined that the principal lacks capacity to make his own health care decisions, and the physician has entered that fact into the principal’s medical record. If the attending physician has any question as to capacity of the principal, a second physician has to record his agreement as to the patient’s incapacity in the patient’s medical record before the surrogate can be called upon to make decisions.  By contrast, a Florida durable power of attorney is generally usable the day it is signed, and health care decision-making powers granted in a durable power of attorney are not limited to those set forth in Chapter 765.  

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Revocable Living Trust

What is a living trust?

living trust is a revocable trust that allows the grantor to name a trustee and alternate trustee(s) who can manage financial assets that are put into the name of the trust.  With proper wording, a living trust can be used to help avoid the need for guardianship over the grantor in the event of the grantor’s incapacity, and it can be used to help avoid, or to diminish the number of assets going through, probate after the death of the grantor. Problem areas may include the possibility of abuse by the trustee, cost, and lack of proper funding of the trust.

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Wills

I’m confused.  I keep hearing about living wills, wills, and living trusts.  Are they all the same thing?

The names are confusingly similar, but these are completely different legal documents. A living will is a document that deals only with end-of-life health care decisions.  A living trust is a document that concerns management of financial assets and possibly, avoidance of probate. A will (also known as a “testamentary will”) is a document that allows you to designate how your probate estate property should pass after your death.

What is the best way to get these documents?

Advance directives for health care involve potential life-or-death decisions for you.  Financial decision-making documents generally involve the control and management of all that you own.  Particular wording and actions may be necessary for these documents to meet your specific needs and to help you avoid the potential for needing a guardianship in the event of incapacity. For these reasons, it is important to seek the assistance of an attorney in deciding if these are right for you, and with creating and executing the documents properly. An elder law attorney would be the most knowledgeable in this area.  Some legal aid programs with elder law projects may be able to provide assistance with certain of these documents.

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