Advanced Directives are critical estate planning tools, particularly with regard to planning for incapacity. These types of legal documents give an individual the opportunity to set forth his or her preferences for important health care and/or financial decisions, and appoint an agent to make those important decisions when the individual is unable to voice those decisions on their own.
Durable Power of Attorney
The most common and arguably the most powerful Advanced Directive is the Durable Power of Attorney. A Durable Power of Attorney is a legal document that appoints an “attorney-in-fact,” who is placed in a position of great trust to act on behalf of the person signing the document. In Florida, a Durable Power of Attorney may be specific, and bestow very limited powers upon the attorney-in-fact. A Durable Power of Attorney may also be general, granting broad powers to the attorney-in-fact to act on the grantor’s behalf. Some examples of powers generally included in a Durable Power of Attorney are the power to sign legal and financial documents on behalf of the grantor; to have access to sensitive financial and/or tax information of the grantor; and to sell or encumber real property on behalf of the grantor. Whether the Durable Power of Attorney is general or specific, the attorney-in-fact may only exercise authority if it is explicitly granted to the attorney-in-fact in the Durable Power of Attorney.
The underlying purpose of a Durable Power of Attorney is to plan for incapacity. It is generally understood that the holder of a Durable Power of Attorney, the “attorney-in-fact,” will not exercise the authority granted by Durable Power of Attorney until the grantor becomes incapacitated, or otherwise unable to act on their own. Under current Florida law, a Power of Attorney is generally “Durable,” meaning it becomes effective immediately upon signing and remains in effect after incapacity. It is therefore of critical importance that the grantor of the Durable Power of Attorney has the utmost trust in the appointed attorney-in-fact to only exercise the Durable Power of Attorney when necessary.
Health Care Directives and Living Wills
A Health Care Directive is a Power of Attorney specially tailored to medical powers. Within the Health Care Directive, the grantor will appoint a Health Care Surrogate, who may not be the same individual appointed in the Durable Power of Attorney, to make medical decisions for the grantor when the grantor is incapacitated.
The Health Care Directive works hand-in-hand with a Living Will. The Living Will instructs the Health Care Surrogate as to when and how to exercise the powers granted in the Health Care Directive as it relates to the withholding or withdrawal of life prolonging procedures in the event the individual should have a terminal condition.
Health Care Directives and Living Wills function to protect the individual’s right under Florida law to make important decisions pertaining to his her or health, particularly with regard to the decision to withhold life prolonging procedures, (i.e. life support).
Designation of Pre-Need Guardian
A Designation of Pre-Need Guardian appoints a Guardian to act on an individual’s behalf in the event that it becomes necessary to initiate a Guardianship proceeding in court. Guardianship proceedings can be expensive, and sometimes litigation may arise when it comes to deciding who will be appointed the Guardian. A hearing is generally required to appoint a Guardian upon the initiation of a Guardianship Proceeding. The Designation of Pre-Need Guardian informs the court of whom the incapacitated person would want to serve as Guardian in the event a Guardianship proceeding is required.