By Molly Carey., Esq. It is not unusual that one enjoys good health for several decades. Bills are paid, savvy investment and healthcare decisions are made, real estate is bought and sold, and the otherwise mundane tasks of everyday life are well managed. Such sufficiency makes it hard to imagine a time could come when one might find oneself in a compromised state that impedes the ability to transact matters of personal affairs. This could be due to the gradual toll that dementia takes, a sudden and devastating stroke, or a bad car accident. Proper planning may well ameliorate the attendant difficulties of such life occurrences. Specifically, a Florida Durable Power of Attorney (“DPOA”) can be invaluable in a time of need. 1. A Durable Power of Attorney Prevents a Guardianship Proceeding
Firstly, having a power of attorney that remains valid during incapacity, which makes it durable, can very likely prevent a guardianship proceeding. A guardianship is a court process wherein an individual is appointed to make personal and/or financial decisions on behalf of a person suffering mental and/or physical disabilities that render him or her incapable of these decisions. Oftentimes, these proceedings are initiated by a family member after an event that makes it impossible for a spouse, adult child, or parent to care for themself. When a valid DPOA is in place, there is no need to seek court intervention. The person who has been designated as the agent steps into the shoes of their suffering family member, the principal, and is authorized to act on their behalf. Depending on the extent of incapacity, these actions can include paying the principal’s living and medical bills, handling taxes, buying or selling real estate, or making living arrangements. When there is not a pre-selected agent ready to spring into action in a time of crisis, guardianship is often the forced alternative. In Florida, before a conclusion as to capacity can be reached, the court appoints a panel of three medical experts to evaluate the alleged ward’s mental and physical health which has a direct impact on the ability to make well informed decisions. If the court makes a finding of incapacity, a guardian will be appointed to make the types of decisions the court deems necessary to ensure the best interests of the ward are carried out. A guardianship proceeding should be a last resort because it’s public, expensive, and can be a lengthy process. There are attorney’s fees, court fees, expert committee fees, and potential guardian fees. If family members disagree on who is best suited for the guardianship role, then it is likely to become contested, thereby making the process more costly and more time consuming. Furthermore, the court will require regular reporting from the appointed guardian for as long as the ward remains incapacitated so that it can supervise and monitor both the affairs of the ward and actions of the guardian. It’s important to distinguish what happens to the incapacitated person’s rights in both these contexts. With a DPOA, the principal is said to have delegated their rights; rights are not legally stripped or given up. This means that if the principal disagrees with the agent, even when diminished capacity is present, court involvement would be required to stop or prevent the principal from acting. Further, if misuse is suspected or disagreement arises, a durable power of attorney can always be revoked by the principal. Contrast the delegation of rights in a DPOA with the removal of rights, which is what happens in a guardianship action. Here the ward is legally stripped of his or her rights to the extent the court deems it necessary to prevent harm. By law, the least restrictive means are given deference, so if a DPOA exists and there is no conflict between the agent and principal warranting a guardianship, then the DPOA controls and a guardianship proceeding is not proper. 2. There is the Option to Designate a Healthcare Surrogate in a Durable Power of Attorney Within a DPOA, one can specify whom they wish to make healthcare decisions should a time come when he or she is unable to. In Florida, a patient is incapacitated or incompetent when they are physically or mentally unable to communicate a willful and knowing health care decision. With a designated healthcare surrogate in place, a trustworthy family member or friend is empowered to make healthcare related decisions that are in line with the principal’s known wishes. Absent a designation, Florida law provides a hierarchy of individuals that are given preference to make such decisions. Disagreements can occur between a class, be it one’s siblings or children, when there is more than one person the statute authorizes. Disagreements and decisions incongruent with one’s known wishes are less likely to occur having preselected a healthcare surrogate. Additionally, hospitals and doctors will be authorized to communicate protected healthcare information to a designated health care surrogate without concern or fear of a HIPAA Compliance violation. 3. A Durable Power of Attorney can be Drafted with “Super Powers” to Preserve the Ability to do Medicaid Planning in a Time of Need There is a set of powers from Florida law, often described as the “super powers”, which if included in a DPOA, provide the agent authority to partake in planning that aims to qualify the principal for government programs such as Medicaid. This type of planning consists of a set of steps one takes to become eligible for assistance without spending all funds on care first. In this way, assets can be preserved. Inherent in the granting of these super powers is extremely broad discretion imparted on behalf of the agent. Florida law therefore requires each power be enumerated and initialed to be effective. These powers allow for the creation or amendment of a living trust, the power to make gifts, the power to create or change beneficiary designations and survivorship rights, to name several. Super powers should only be included after careful review and consideration of one’s circumstances. When deemed warranted, they are essential in allowing a designated agent to act in a way that preserves a principal’s assets while qualifying him or her for government assistance. Comments are closed.
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