Johnston & Metevia's Pompano Beach Blog

If you are 18, or older, in addition to a Will you should have a General Durable Power of Attorney, Healthcare Surrogate and a Living Will. Wills shall be covered in a separate post.

These three (3) documents give your authorization to your appointee so they may make medical and financial decisions for you if you are, for whatever reason, mentally incapacitated or otherwise unable to make those decisions for yourself. You may not be mentally incompetent, but perhaps you have been rendered unable to communicate through an accident or medical coma.

Hospitals and physicians do not necessarily go ahead with decisions your spouse, parents or other close relatives make for you; to protect themselves, they require legal authority. Likewise, unless the other person is a co-owner or authorized signator on your accounts at a bank, the bank will not discuss your accounts with your loved ones without proper authority. Or, for example, one might be in an accident due to a third party's malicious act or negligence, and the injured person's loved ones wish to get payment from the third party for medical expenses. The loved ones will need authority to do that for because the injured person is no longer a minor; as an adult, the parent or loved one needs to show proof of the express authority to act on the injured person's behalf.

Without these documents, in some situations your loved ones may be forced to go to court and open a guardianship for you so they may be appointed as your guardian and gain the authority to make these decisions. This can be costly and is extremely time consuming. Once a guardianship is opened and a guardian appointed, your guardian must ask the court permission to withdraw any funds or make other important decisions. The guardian is responsible to the court for yearly reports regarding the financial accounts and your physical well-being. The financial accountings will be audited by a court appointed accountant. These three documents can help your loved ones avoid this hassle during a difficult and painful time.

Young people think they will live forever, and of course, that is not true. Once one becomes an adult, their parents no longer have the authority to make certain decisions for their children. It is best to "plan for the worst and hope for the best".

These documents only have authority while you are alive. Once you die, your authority dies with you, becoming void at the time of your death.

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Healthcare Surrogate

In Florida, the person you appoint to make your health and medical decisions for you is called a Healthcare Surrogate. You may also see it referred to as a Healthcare Proxy or Medical Proxy. If you cannot speak or are incapacitated, this document allows your appointee to make decisions for you regarding your care, treatment, medication, surgical procedures, and other medically related issues.

Living Will

A Living Will is an advanced directive which gives your appointee instructions and authority to carry out a certain plan if a tragic situation should arise. Should you be in a condition where you have no brain activity and no chance of recovering, and are being kept alive via artificial resuscitation and machines, your Living Will tells your appointee to turn the machines off. However, you may also make an advanced directive telling your appointee to do whatever necessary to keep you alive.

Florida Statutes section 765.101 defines three different medical conditions which are referenced in the Florida Statute's suggested form for a Living Will.

The End-stage Condition, which means an irreversible condition that is caused by injury, disease, or illness which has resulted in progressively severe and permanent deterioration, and which, to a reasonable degree of medical probability, treatment of the condition would be ineffective.

The Persistent vegetative state means a permanent and irreversible condition of unconsciousness in which there is: the absence of voluntary action or cognitive behavior of any kind and an inability to communicate or interact purposefully with the environment.

The Terminal condition" means a condition caused by injury, disease, or illness from which there is no reasonable medical probability of recovery and which, without treatment, can be expected to cause death.

There are certain circumstances, such as with Mrs. Terry Schiavo, when ventilators and machines are turned off but the person continues to breathe on their own. In Mrs. Schiavo's situation, she was kept alive for years with a feeding tube. A painful and public battle ensued between her husband and her parents to decide whether the tube should be removed and allow Terri to, essentially, starve to death. A judge ordered the removal, and she lived for many days before she died. This lead to a change in Florida law which provides for Living Wills to ask if you wish for food and water to be withdrawn if you are a "vegetable".

Everyone is unique in their beliefs, and the subject usually can make for a lively debate between people with opposing opinions.

For a reference, you may wish to read the following articles for religious perspective. See this statement from the Papal Academy's Joint Declaration of the World Federation of Catholic Medical Associations and the Pontifical Academy for Life on the vegetative state (17 to 20 March 2004) ; this page requires a browser translator. For a Jewish perspective on the subject of living wills, withdrawing nutrition and life support and the Jewish Faith, you may wish to read the article Palliative Care/Spirituality by Rabbi Elliott Dorff, Ph.D. of the American Jewish University.

Ending, or not ending, life support and nutrition is delicate subject. One should think carefully and gather as much information from professionals -including one's physician, attorney and spiritual advisor (if applicable) - when making a decision regarding this advanced directive.

General Durable Power of Attorney

A General Durable Power of Attorney can cover a wide variety of financial issues. Depending on the content of the document, it gives authority to your appointee, called an attorney-in-fact, to "step into your shoes" and make financial and other legal decisions for you if you are incapacitated, cannot make your own decisions, or are otherwise unavailable.

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There are a great number of "forms" available regarding these three documents. It is important to remember these forms are usually basic and not necessarily tailored to the laws of your state or your situation. Seeking the advice of an attorney is always the best idea when executing any of these documents. One's personal situation is unique and an attorney can provide advice for your particular needs, which cannot be found on the back of a box.

Finally, it is always important to discuss your decisions first, before signing your documents, with the person you are appointing. Do not assume because the person is older than you, or if they have been through a similar situation before, that they would be ready, willing and able to be your appointee.

Being 18 is more than just being able to vote, get drafted, and buy cigarettes. You are an adult now, and the first thing you should take care of as a responsible adult is to make a plan for the occasion when you cannot take care of yourself.