Many individuals confuse advance directives with documents associated with death such as a Will. However, this is a misconception. Advance directives tell the world how you wish to be cared for during your life. When properly drafted, it should be clear to the world who an individual desires to make decisions both medically and financially. This is simply a foundation to building a care plan for your life.
A little more than a decade ago these documents would commonly be referred to as a Power of Attorney. Within the power of attorney would be medical and financial information. Today, we break these provisions apart into generally three medical documents and one financial document, which include: HIPAA Release, Living Will, Designation of Health Care Surrogate, & Durable Power of Attorney.
The HIPAA Release provides a list of family and friends access to one’s medical information. It waives your right to privacy. This document helps prevent those closest to you from being blocked from finding out about their family member due to privacy restrictions.
Common applications are:
The Living Will is a personal statement regarding the level of care one wishes to receive upon reaching an end of life situation. This document is no longer consider a “legal document.” Free copies can be obtained from the Florida Bar, most hospitals, and Hospice providers.
Common concerns or questions:
A. This is not a “Do Not Resuscitate” (DNR). A living will allows the medical team to attempt to assist you; however, it explains what level of care you want it they are unable to bring you fully back.
B. It is not a “legal form”, meaning you can obtain a free living will from the Florida Bar, Hospitals, Hospice providers, etc.
C. There is not a standard form which you cannot alter. Just like other estate documents, if you have custom desires, it should be conformed to meet your specific set of facts.
The Designation of Health Care Surrogate states who you desire to make medical decisions for you in the event you are determined to be medically incapacitated.
Common concerns or questions:
A. Many fear this will turn power over to their children. While the document may allow a family member to act, they can only do so during a period of incapacity. Should there be a recovery the family member must step aside.
B. Do I have to list someone local? No, the best person is the person who is most likely to be there when you need them either by phone or in person AND willing to follow your desire not their own.
C. This does not provide a family member the authority to place someone in a nursing home.
The Power of Attorney provides a trusted party the authority to assist with financial matters. Contrary to common belief there isn’t one document for everyone. Further, the law in Florida changed in 2011. It is extremely important for one entering retirement to take the time to review with the attorney what their power of attorney can and cannot accomplish.
Common issues, concerns & questions
A. Contrary to public opinion a power of attorney does not turn over control to another person. They are actually perceived as working together.
B. Many power of attorneys drafted today do not comply with the new law. An experienced attorney should be able to explain the new enumerated powers and how they might differ based on your circumstance.
C. Key provisions to watch for in the document is Agent’s ability to gift, create irrevocable trust, and whether it executed with the correct number of witnesses and a notary.
Jason A. Waddell is a Board Certified Florida Elder Law Attorney who practices on the Panhandle of Florida.