HEALTHCARE SURROGATE DESIGNATION
A Health Care Surrogate designation is a document that formally appoints one or more persons to make health care decisions for another if the other is temporarily or permanently unable to make his or her own decisions. It usually permits the surrogate to obtain medical records and can be personalized to incorporate provisions of a living will or even combined with a living will.
Health care surrogate designations are important in minimizing confusion and stress that frequently accompany a serious illness or injury. A surrogate designation avoids searching for a family member to make emergency decisions and places decision-making clearly in the hands of a named person. Many authorities strongly recommend that all persons, and especially seniors, prepare a health care surrogate designation.
Florida law is designed to make surrogate designations easy to prepare and use, and blank forms can be obtained from many medical providers, office supply stores, and on the internet. Some forms even include living will provisions. Even a simple form is better than none. If you wish to personalize your designation, a qualified attorney can easily assist.
Living Wills express personal wishes for end of life care. They state what life-prolonging measures an individual desires, and what measures the individual chooses to refuse. Perhaps more than any other document, a living will is deeply personal and requires that one consider the end of life.
If you want medical providers to use all available means to prolong your life, then you do not need a living will. This would include resuscitation (“CPR”), use of a ventilator, artificial nutrition (“feeding tubes”), and artificial hydration (“IVs”) for as long as you live. If you do not want one or more of these procedures, or other end-of-life care, it is best to prepare a living will.
The Florida laws governing “advance health care directives” attempt to balance the individual’s right to refuse treatment with society’s goal of preserving life. To achieve that balance, Florida law requires living wills be executed with certain formalities and provides a mechanism to challenge in court a surrogate’s decision to refuse or withdraw treatment.
Living wills executed before Florida amended its laws in 2001, or prepared in another state, are effective, but medical providers may hesitate to honor them. Therefore, if expressing your right to refuse treatment is important to you, it is best to prepare a living will that meets Florida’s 2001 criteria.
With or without a living will, your health care surrogate, family, friends, and medical providers can support you best if you tell them about your desires. It may seem morbid or insensitive to talk about end-of-life preferences, but no one knows when a catastrophic injury or illness may strike. If we talk about these matters, then we can live every moment of life to its fullest without worrying about what remains unsaid. The common wisdom to “live each moment as if it were our last” is wisdom indeed.
POWER OF ATTORNEY
A power of attorney (POA) gives another person (the “attorney in fact” or “agent”) the right to act on behalf of, or instead of, the person who signed the power of attorney (the “principal”). Although a POA is a very common and useful planning document, it is important to understand some basic facts about the POA:
1. It is effective when signed. This means that, unless the agent does not have the original or a copy of the POA, the agent can take any action that is authorized in the POA, with or without the principal’s separate approval.
2. The agent owes specific duties to the principal and will be legally liable for violating those duties. In general, the agent must act on behalf of, for the benefit of, and in the best interests of the principal. A POA is not permission for an agent to take advantage of the principal or use the principal’s assets for themselves.
3. A POA can be revoked, but it is important to make sure that third parties are informed that the POA was revoked.
4. An agent can be removed by a court, but this may be expensive and not necessarily easy.
On October 1, 2011, Florida substantially changed the law governing powers of attorney. The new law defined how and when POA’s are effective, created qualifications for agents/attorneys in fact, listed how and when a POA terminates or is revoked, prescribed how co-agents or successor agents may act, permitted only “qualified agents” to be compensated, specifically described an agent’s duties, created a method for court intervention, allowed third parties to challenge a POA before accepting it, and, importantly, required that certain powers be stated very specifically and separately signed or initialed by the principal.
Although a POA signed before October 1, 2011, or in another state, will usually be effective, it may or may not permit the agent to do what the principal actually wanted. In addition, a bank, brokerage, institution, or third person, may or may not challenge the “old” POA. The author of this Guide recommends that all existing plan documents, and especially powers of attorney, be carefully examined to make sure they still accomplish the goals for which they were drafted. In addition, the author recommends against using pre-printed or computer/internet generated powers of attorney.
Powers of attorney are one of the most effective and useful life planning documents. A properly-drafted POA allows an agent to take actions on behalf of a principal after the principal can no longer act for himself or herself. This is often very important when the principal needs nursing home care and can allow the agent to preserve the principal’s assets, even if the principal must apply for Medicaid benefits. A living trust, if properly prepared and funded, can also can also be used in this way (see “living trusts”). Seniors, especially, should consider preparing a POA and/or living trust and consult with a qualified attorney about the risks and benefits of these devices for their specific circumstances.
Once the principal’s mental abilities decline, it may be too late to prepare or modify a POA. However, there are few hard and fast rules about when a person “has capacity” to prepare or modify a POA (or a contract, will, or other document). A person with dementia, for example, may still have capacity to create or modify a POA. Seniors and their loved ones should not assume it is too late. Rather, consult a qualified attorney about what can be done.
Because mental and physical abilities often diminish with age, seniors are a prime target for unscrupulous people and businesses. If you believe that an agent, a professional, a business, a family member, a caregiver, or someone else has or is taking advantage of a senior, do something about it. There are special laws protecting seniors. You can consult an attorney about what is and is not appropriate or call Florida Adult Protective Services at 1-800-96 ABUSE.
Information About Trusts
In general, a trust is a place where people (“settlors”) place assets to be managed by trustees. There are many kinds of trusts and most, but not all, are created by a written document and the transfer of assets to the trust. Some trusts are permanent and cannot be changed (irrevocable trusts). Some arise from a will after death (testamentary trusts). A living trust is revocable, changeable by the settlor during his or her life, and then managed by a named trustee after the settlor has passed away. While the settlor lives, he or she can add assets to the trust, take assets away from the trust, change the beneficiaries of the trust, change the trustee, or change any provision of the trust. A living trust is a private document and, unless challenged, is not presented to any court.
A living trust provides a great deal of flexibility and assistance in managing assets. The settlor can create the trust, provide for his or her lifetime support from the trust, provide support for others (especially disabled children) during the settlor’s lifetime and/or after the settlor’s death, provide for distribution of assets after the settlor’s death, and choose the trustee(s). If a co-trustee is named or added, that person can step in at any time to assist the settlor in managing most or all financial affairs.
The Florida Trust Code was enacted in 2007 to codify and, in some ways, strengthen the law governing trusts. Trustees must fulfill specific duties and act for the benefit of the trust beneficiaries (including the settlor). They must keep records and account to the beneficiaries for what they do. The actions of a trustee can be challenged in court, but it is up to the beneficiaries to bring the challenge. A court does not automatically review trust activities as it does a will.
A living trust is one of the most commonly used devices to “avoid probate,” in other words, to provide for the disposition of assets after death, without reference to a will, and without court involvement.
Information About Guardianships
Guardianship is a formal, court supervised process of appointing a representative (“guardian”) to manage the needs of an incapacitated person (the “ward”). The ward may be physically or mentally incapacitated, or both, and the guardian may be appointed to care for the ward’s financial needs (guardian of the property), personal needs (guardian of the person), or both (plenary guardian).
Except for a voluntary guardianship of the property, guardianships apply only to persons who are completely incapacitated. They require court and attorney involvement, remove the ward’s legal rights, and can be expensive. The court will supervise a guardianship until the ward regains capacity, if ever, and the guardian must file periodic reports. It is often preferable to use other life planning tools than resort to a formal guardianship.
A personal services contract sets out specific services, who will provide those services, how much the provider will be paid, and how and when the provider will be paid. Personal services can be anything from paying bills to providing hands-on care. This type of contract is frequently used to preserve assets and qualify for Medicaid when a person needs nursing home care.
With a personal services contract, one can pre-pay for services that Medicaid will not provide, still qualify for Medicaid benefits, and maintain a quality of life that would not be available without this planning device. It can be used with family members, friends, and professionals.
How an asset is titled defines who owns it, how it can be divided, and what happens to it upon the death of the owner. For example, an asset titled in the joint names of husband and wife are owned by each and pass to the spouse upon death. An asset titled in the names of two or more unmarried persons is owned jointly, although not necessarily 50-50, and may or may not pass to the other upon death depending on how it is worded.
Sometimes, it may be important that the asset pass to a joint owner upon death, or it may be important that it not pass to a joint owner upon death. For example, it may be important that a bank account pass to a spouse or partner but equally important that it not pass to one child and exclude other children. Even if a will distributes assets equally between children, an asset titled in name of one child will go only to that child. It is also important to consider that a joint owner has control over the asset and must be trusted.
Here’s some commonly asked questions about Asset Titling:
WHAT IS A “TITLE” TO AN ASSET?
A “title” to an asset is the name of the owner(s) of the asset. We often think of the “title” to a car or the deed to a house. In this context, the “title” and deed are pieces of paper. The “title” to an asset is the way the owner(s) is worded and includes the way the owner is listed on a “car title,” deed, bank or brokerage account, stock certificate, or the like. Individual ownership (one name only) and joint ownership (more than one name) are the title conventions most often seen. Joint ownerships are often stated as “joint and survivor” ownership or “common” ownership. Titles can also include “pay on death” or contingent ownership.
WHAT ARE ASSETS?
Assets are tangible things you own. They include the things people usually think of, such as real estate, cars, cash, money in bank accounts, household furnishings, jewelry, stocks, and bonds. They also include things people don’t usually think of, such as pets and the right to bring a lawsuit. For example, if a person or company owes you money and does not pay, you have the right to bring a lawsuit. If a person negligently injures you, you have the right to bring a lawsuit. There are other circumstances that give you the right to bring a lawsuit.
If you die after starting a lawsuit (but before it is concluded), the lawsuit is an asset of your estate. If you die before exercising your right to bring a lawsuit, that right may be an asset of your estate. Proceeds from lawsuits can be substantial.
With a will, your chosen “personal representative” steps into your shoes and exercises your right to bring and resolve a lawsuit. With a will, the proceeds of the lawsuit will be distributed to the people or charities that you choose (except for “wrongful death” lawsuits). Without a will, the court will appoint a personal representative and state statutes will decide who receives the proceeds of the lawsuit. Even if you believe you will never be involved in a lawsuit, you may be cheated out of a substantial amount of money or seriously injured by someone’s negligence. At Blackburn Law Group, we recommend considering the possibility of a lawsuit when preparing a will.