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The Importance of Advance Directives

April 25, 2017

                Often when you hear “estate planning,” you think of planning for what happens after your death.  Unfortunately, planning for sickness or disability during life is sometimes overlooked.  There are several documents that are crucial to have in place in the event you become temporarily or permanently unable to make (or verbalize) decisions related to your health and finances, namely: (i) Durable Power of Attorney; (ii) Health Care Surrogate; (iii) Living Will; and (iv) HIPAA release.

                Durable Power of Attorney.   A power of attorney is a legal document that gives someone of your choosing (family member, friend, trusted advisor) the power to act in your place with respect to legal and financial decisions.  There are two basic types of powers of attorney: a springing power of attorney and a durable power of attorney.  The springing power of attorney “springs” into existence at some later time when the principal (the person creating the document) loses capacity.  A durable power of attorney takes effect immediately upon execution, which allows the designated agent instant access to financial information and accounts.  In 2011, the Florida statutes were amended and only durable powers of attorney may now be created in Florida.  In addition, there are certain specific powers that you can give to your designated agent; however, in order to such power to be effective, the principal must initial next to said power in the document.   Because of various aspects of the 2011 statute, if you have a power of attorney from a different state or one executed prior to October of 2011, you should have it reviewed by a Florida attorney to ensure it is compliant with the current law and your current desires.

                Health Care Surrogate and Living Will.  A health care surrogate is a legal document that appoints someone as your representative to make medical decisions on your behalf if you are too ill to do so for yourself or unable to verbalize or otherwise communicate your wishes.  A Living Will is frequently referred to as the “pull the plug” document, and you can tailor the document to specify the types of medical interventions you are comfortable with, if any, and in what circumstances.  The health care surrogate and Living Will are often times combined so your wishes and desires with respect to health decisions and life prolonging procedures are together in the same document.  If you are in a physical or mental state such that you are unable to advocate for yourself, your family members and/or friends are left to make very tough decisions on your behalf.  These documents will assist your family members and friends understand how you wanted to be treated medically, and what life prolonging measures, if any, you are comfortable with, giving them peace and comfort that your wishes are fulfilled.

                HIPAA Release.  HIPAA is an acronym that stands for the Health Insurance Portability and Accountability Act, which is a federal law designed to provide privacy standards to protect patients’ medical records and other health information provided to health plans, doctors, hospitals and other health care professionals.  HIPAA also restricts the information that family members and friends may access from your doctors.   By designating certain individuals on a HIPAA Release form, you are allowing said individuals to receive your medical information.  For instance, if you were in need of an operation and at the conclusion, the surgeon came out to discuss the surgery, you could allow the surgeon to speak to several of your family members and friends; however, unless designated on a health care surrogate form, those individuals could not access any additional medical information about you, nor could they make medical decisions on your behalf.

By completing these forms while you are healthy and have capacity, you are able to maintain control and have direct influence over how legal, financial and health decisions are made for you during a time of sickness and/or disability.   These forms are very simple to create with the help of an attorney experienced in this area.  While planning for “after death” is also very important, this guidance and direction you can provide to your family and friends with respect to financial and health matters is invaluable.