Durable Power of Attorney
A Power of Attorney also authorizes another to act on your behalf under certain circumstances. In Florida, until 1974, a Power of Attorney became invalid once the principal was disabled. By placing certain language in the Power of Attorney, however, the document becomes a “Durable Power of Attorney” through which you may authorize any person, not just a family member, to act on your behalf even though you are disabled. A Durable Power of Attorney authorizes someone other than you to handle your personal business.
In 1995, there were further changes in the law regarding Power of Attorneys. Prior to 1995, it was common practice to draft short, general and generic language into Power of Attorneys. The impact of the changes required further specificity in the terms and conditions of these documents. With these changes, concerns about the staleness of a Durable Power of Attorney have frequently arisen. For this reason, our Firm includes an Affidavit with each Durable Power of Attorney that we draft which, once executed, ensures that the document does not become stale and unenforceable. The Affidavit testifies to the validity of the Durable Power of Attorney without the Client having to revisit an attorney’s office to get the Durable Power of Attorney verified or have an additional draft of the document.
Some attorneys will use a Durable Power of Attorney to authorize our healthcare decisions as well as your financial decisions. However, we have found a Health Care Surrogate is the most effective means to communicate your healthcare decisions when you no longer are able to do so.
You have the right to compel the termination or continuation of your life support systems if you are terminally ill, or in a persistent vegetative state or have an end-stage condition. An end state condition is an irreversible condition that results in progressively severe and permanent deterioration which treatment cannot be effective. It is important that your intention is properly documented through a Living Will.
Since healthcare providers and institutions have various ethical, legal and financial responsibilities, it is important that this document be drafted to reflect your wishes. Family members may, out of love and respect, act contrary if they are unaware of your wishes.
Health Care Surrogates
Because a Living Will applies only if you are terminally ill, a Health Care Surrogate is an extremely important part of long-term care planning. This document may be more effective at a time of crisis than a Living Will because it will protect your wishes even when you are in an unstable situation and have not been declared terminally ill. Provided for by a special statute, it is the strongest way to protect your healthcare choices when you are unable to speak for yourself.
Selecting a guardian ahead of time can help protect your choice of Health Care Surrogate and the holder of the Durable Power of Attorney. If either or both of your choices for those individuals are contested by family members, or their decisions are questioned, the decision-making ability of the surrogate or individual with the Power of Attorney can be stayed pending the appointment of a guardian. When the guardian is appointed, the Durable Power of Attorney or Health Care Surrogate may not remain in force.
By appointing a guardian ahead of time, usually the same person who is also the surrogate or holds Power of Attorney, you are providing the court with yet another indication that you have carefully considered your decision of who should make decisions on your behalf.