ADVANCED DIRECTIVES

When I talk about “Advanced Directives,” I typically refer to Power of Attorney, Health Care Surrogate, Living Wills, and HIPAA Authorization. The purpose of these documents is have someone you trust step in your shoes should you not be able to make your decisions yourself.

Durable Power of Attorney

A Power of Attorney allows you to select an agent to act on your behalf. Usually Powers of Attorney are create for financial reasons.

Examples of uses of the Power of Attorney involves giving someone the power to go to your financial institutions on your behalf, sell real estate, prepare your taxes, and apply for governmental benefits.

The Power of Attorney can be drafted generally or specific to limit the powers of your agent.

In Florida, the Power of Attorney is effective immediately. Florida got rid of the “springing powers of attorney. A springing power of attorney was a power that only became effective upon your incapacity.

A Power of Attorney terminates upon your revocation, death or incapacity unless you make the power “durable.”

By making the Power of Attorney durable, what you effectively done is to give your agent the power to make decisions on your behalf even in the event of your incapacity.

The Durable Power of Attorney is used for incapacity planning. With a general power, it allows your agent to make a lot of the day to day transactions that you would otherwise have done. Beware that when creating a Power of Attorney, you should select someone that you trust to avoid any unintended consequences.

Your agent sits on a fiduciary capacity. If you communicate your intent to your agent, then your agent has a fiduciary duty to abide by your wishes or he or she will be potentially be liable to you for a breach of fiduciary duty.

Designation of Health Care Surrogate

Similarly to the Power of Attorney, the Designation of Health Care Surrogate allows you to designate a “Surrogate” to make and receive health information on your behalf.

The designation of the Surrogate is also effective immediately and can be made effective even upon your subsequent incapacity.

The Designation of Health Care Surrogate is recommended for elderly individuals, specially if they have children that are supervising the parents. Being designated the Surrogate on your behalf, your child will be able to obtain health care information from your doctors.

The Surrogate does not have authority to override your wishes. As long as you are capable of providing informed consent, your doctors will follow your wishes and instructions over your Surrogate.

Living Will

The Living Will allows you to declare whether you want life-prolonging treatment in the event that there is no “reasonable medical expectation” of your recovery.

The Living Will is used in the circumstances that you are in a comma, a “vegetable state,” or if you have an end-stage condition.

I can tell you that in my honest opinion, a Living Will is just as important as any estate planning document. The reason for this is that you don’t want to leave that decision to your family. The impact that it can have on your family making the decision of what happens to you can be devastating to them emotionally.

In a properly drafted Living Will, you will be able to select what treatment you wish to be applied or not. It is a difficult decision, but it is a decision best made by you.

HIPAA Authorization

The HIPAA Authorization supplements your Designation of Health Care Surrogate. It allows your agent or Surrogate to receive protected health information on your behalf.

Protected health information usually involves future or mental health conditions, diagnosis and treatment of HIV/AIDS, sexually transmitted diseases, mental illness, and drug and alcohol abuse.