In Florida, guardianship gives the appointed guardian legal authority to make important decisions on behalf of an incapacitated person who is unable to make those decisions on their own. Generally, the guardian will be making decisions regarding money, handling property and healthcare. However, guardianship is a long and intrusive process. It requires much court intervention and a medical examination to determine incapacity must be performed before a guardian is appointed.
Guardianship may not be the best option if you want to plan ahead and choose who will make decisions regarding your health and finances in the case that you become incapacitated. One way to achieve this is by preparing advanced directive documents.
Advance Directives
An advance directive allows you to decide, ahead of time, how you want medical decisions to be made in the event that you are unable to make them yourself. You may not be able to anticipate becoming incapacitated; and advance directive allows you to make your wishes clear while you are still healthy and will ensure these wishes will be carried out.
Healthcare Surrogate
A healthcare surrogate designation is a document that names another person as a representative to make medical decisions on your behalf and consent to medical treatment on your behalf if you are unable to. The designated healthcare surrogate may only make these decisions if the grantor becomes incapacitated, which is determined by the grantor’s physician.
The healthcare surrogate may also apply for aid such as Medicare on behalf of the grantor during the period of incapacitation.
A healthcare surrogate’s authority is limited to decisions concerning medical treatment or medical consent and may not receive income or property on behalf of the grantor.
Living Wills
A living will is an advance directive you can prepare to lay out what kind of medical care you want, or do not want, if you are unable to make your own decisions. This is different from a Last Will and Testament because a living will become effective while an individual is still alive. Although you are not required to create a living will, it is an important document that should be included in your estate plan. It helps avoid disputes amongst your loved ones regarding your end-of-life medical treatment.
Your living will can guide your loved ones and medical professionals to your wishes regarding treatment of terminal illness, prolonging care, and what to do if you enter a vegetative state.
Durable Power of Attorney
A power of attorney is a written document that allows you to grant the authority to manage real estate, bank accounts and make other financial decisions on your behalf. The document is completed while you have the requisite mental capacity and survives your incapacitation. Although generally a durable power of attorney will delegate authority to make financial decisions on your behalf, you may also delegate authority to make medical, therapeutic and other healthcare decisions.
If you are determined to be incapacitated and have completed a durable power of attorney, the power of attorney may be used as a least restrictive alternative to a traditional guardianship.
Planning ahead for the unexpected is a sensitive subject that most people would rather just put off. However, by doing so you run the risk of putting your family under the stressful situation of having to make decisions regarding your medical treatment. Planning ahead will ensure that your desires regarding prolonging medical treatment and consent to medical care are carried out by your medical professionals if you become incapacitated and are unable to express your wishes. To learn more about how to create an Estate Plan, that will cover all your needs and make your wishes known, contact The Florida Estate Planning Law Firm. Our attorneys have the knowledge and experience to help you understand what options will best fit your desires.
