Planning for Incapacity: Planning for When You Can No Longer Plan

Let’s face it—no one wants to contemplate the possibility of a time when she or he is unable to take care of herself or himself.  However, the truth of the matter is that it could happen to anyone at any time.  In general, a person becomes incapacitated when that person no longer has the ability to make or enter into certain types of medical or legal decisions and agreements.  Florida law specifically defines incapacity as “the inability of an individual to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income.”  Wouldn’t you rather plan ahead for this “inability” so that you still have significant input into what will happen if or when you are unable to manage your own financial and medical affairs?

Various documents exist for a person to plan for incapacity.  The type of document to execute depends on the type of care being considered.  If dealing with property, a person might elect to execute a Power of Attorney.  If dealing with the care of a person, various options include a Durable Power of Attorney, a Living Will, and a Health Care Surrogate.

Many people have heard of a Power of Attorney (”POA”), which is a document that legally delegates authority from one person (i.e., “the principal”) to another person (i.e., “the agent”).  In Florida, the agent can be any person who is at least eighteen years of age, or a financial institution that meets certain requirements under Florida law.  The POA must be (1) signed by the principal, (2) notarized, and (3) witnessed by two individuals.  However, in the unfortunate event that the principal is physically unable to sign the POA, the notary may sign for the principal.  Once the principal executes the POA, the power becomes effective, and the agent is legally able and entitled to make specified decisions and other legal executions on behalf of the principal.

In Florida, various types of POAs exist, which provide different scopes of power and durations.  A general POA gives the agent very broad powers and typically includes a list that specifies all of the activities the agent can perform.  Alternatively, a limited POA only gives the agent authority to conduct a specific act on behalf of the principal.  Normally, a POA terminates if the principal becomes incapacitated.  However, under Florida law, a durable POA is one in which the POA continues even if the principal becomes incapacitated.  Many people prefer durable POA for that very reason.  An estate planning attorney can review the various types of POAs with you and can suggest which type is best suited to meet your needs and desires.

Also, by executing a Health Care Surrogate, an individual can designate someone else to make health care decisions for him or her.  While a Power of Attorney allows the agent to perform duties on behalf of the principal, a Health Care Surrogate does not allow the surrogate to act until the principal lacks the requisite capacity to make his or her own informed health care decisions.  While the principal is incapacitated, the surrogate makes health care decisions for the principal that the surrogate believes the principal would have made.

Conversely, a living will is a written declaration that directs the provision, withholding, or withdrawal of life prolonging procedures in the unfortunate event that one has a terminal condition.  In Florida, a living will is only effective if the declarant is incapacitated, and a) has a terminal condition, b) is in an end-stage condition, or c) is in a persistent vegetative state.  While most people are familiar with legal wills, which dispose of personal property upon death, a living will concerns life prolonging procedures.

If you or someone you know is interested in learning more about planning for incapacity in Florida, contact the experienced team at Chepenik Trushin LLP, who is ready, willing, and able to help with all of your estate planning and probate needs.