When an individual become incapacitated, others may need to assist by making financial and medical decisions on behalf of the individual. These decision makers can use a variety of tools to make decisions, depending on documents the incapacitated individual created.
Below is a list of tools available under Florida law that can be used to make decisions on behalf of another. Estate planning documents like Durable Powers of Attorney, Health Care Surrogate Designations and Living Wills must be created by an individual before their incapacity in order to be effective. Incapacitated individuals cannot create these documents and their loved ones who need to make decisions on their behalf cannot create them after an individual becomes incapacitated.
Durable Power of Attorney: (Chapter 709 Florida Statutes) A document in which an individual (principal) designates another (attorney in fact) to act on his or her behalf with regard to a wide range of transactions, especially financial transactions. As long as its durability is clearly stated, Florida law allows the attorney in fact to continue to act on behalf of the principal even after the principal’s incapacity. A principal MUST have capacity to sign the Durable Power of Attorney. Note: Effective October 1, 2011, significant changes were made to Florida’s Durable Power of Attorney laws and durable power of attorney forms found on the internet or purchased from office supply stores or website may not be valid if they do not meet the specific requirements set forth under the new laws. Please contact an elder law attorney for more information.
Trust: (Chapter 736 Florida Statutes) A right to use or get the benefit of property or money that is held by one person (trustee) for the benefit of another (beneficiary). The trustee continues to manage the trust property even after a beneficiary has been determined to be incapacitated. The trustee only manages the money held in the trust and no other property that may belong to the beneficiary.
HEALTH CARE TOOLS
Health Care Surrogate: (Chapter 765 Florida Statutes) The individual (surrogate) designated by another individual (principal) to make health care decisions for him or her in the event of incapacity.
Health Care Proxy: (Chapter 765 Florida Statutes) The individual designated by Florida law to make healthcare decisions for an individual in the event of the individual’s incapacity.
Living Will: (Chapter 765 Florida Statutes) A document announcing an individual’s intent and wish regarding the health care he or she would like to receive or would like withdrawn in the event the individual should be found to have an end stage condition, a terminal condition or be found to be in a permanent vegetative state.
Do Not Resuscitate Order: (Chapter 401 Florida Statutes) A medical order instructing paramedics, EMS, health care institutions, and other medical personnel not to resuscitate an individual in the event of cardiac or respiratory arrest.
Anatomical Gift: (Chapter 765 Florida Statutes) The individual provides for the donation or his or her body, organs or tissue upon his or her death.
Designation of Pre-Need Guardian: (Florida Statute § 744.3045) An individual’s written declaration naming another to serve as his or her guardian in the event of his or her incapacity.
Guardianship: (Chapter 744 Florida Statutes) A guardianship is an extraordinary legal procedure in which a court appoints someone to assist a ward in the event of the ward’s incapacity. A guardian is appointed to make financial, medical and personal decisions for an incapacitated individual. Those decisions and the actions of the guardian are supervised by the court. A guardianship is usually instituted because there are none of the other planning tools discussed above available.
If you have questions about who would make decisions for you when you become incapacitated or if you have questions about making decisions on behalf of a loved one, contact an elder law attorney.