We believe life's problems are
at least as complex and important as death problems, particularly
the problems of incapacity and the cost of quality care. |
Our office specializes in
planning for incapacity.
- It is never
too soon to begin planning for incapacity.
-
Purchase long term care
insurance, if possible.
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Name a
durable power of
attorney to take care of your financial affairs.
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Name a
health care
surrogate to take care of health related matters.
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Sign a
living
will expressing your wishes about medical treatment and end
of life decisions.
-
Discuss your wishes with the people you
have named.
Alzheimer's disease and other
forms of dementia can leave you unable to comprehend
legal documents. Before such incapacity, you should:
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Execute all necessary legal documents.
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Title all your assets properly.
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Plan so that you are
assured that a trusted person will take care of you.
To print our forms, which comply with
Florida law and the Health Insurance Portability and Accountability Act (HIPAA)
laws, follow the instructions at
Advance Directives.
 Power
of Attorney
A new Florida Durable Power of Attorney statute took
effect October 1, 2011.
The new law has required massive changes in the Durable Power of
Attorney document. If the principal has capacity, I recommend a new
Durable Power of Attorney be signed that complies with this new law. Due
to the many choices an individual needs to make in the new Durable Power
of Attorney as of October 1, 2011, I feel it is very important this
document be drafted by a Florida attorney”.
A signed Durable Power of Attorney document gives another person (the
Agent) the ability to act on behalf of the individual (the Principal)
without requiring any active participation by the principal.
The obvious danger in a Durable Power of Attorney situation is that the
Agent can act dishonestly or in his or her own self-interest,
particularly if you, the Principal, become incapacitated. There is
currently no third party oversight in this arrangement. A Power of
Attorney should be given to only those individuals you trust.
Under Florida law, a Power of Attorney must state specifically that it
is “Durable” in order to remain valid when you no longer have capacity.
When acting under the Durable Power of Attorney, an affidavit may be
required of the Agent attesting to the fact that
• the Principal is not deceased
• the Principal has not revoked the Power
• the authority has not been suspended
• there are no proceedings initiated or pending to determine incapacity,
or appointment of guardian
A third party may require additional verifications in order to rely on
the subject Power of Attorney.
Questions and
Answers regarding changes in the new Florida Power of Attorney
statute.
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Health Care Directives
If you have already executed Health
Care Surrogate and Living Will documents, and if they coincide with your
values, then they can be used by you providing they are validly
executed. All Advance Directives need to follow your values and
religious beliefs as well as be valid under Florida law and should
always be drafted by a qualified Florida attorney.
Designation
of Medical Surrogate
Florida law provides for a
"Designation of Health Care Surrogate." The surrogate can make
health care decisions for you only when you are unable to make such
decisions. The surrogate has power to make decisions only when you are in a hospital, in a nursing home, or under hospice care. The surrogate
is entitled to:
-
Make health care decisions and act for
you, the patient, during your incapacity in accordance with your instructions.
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Consult with appropriate health care
providers to provide informed consent in your best interest.
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Provide written consent using an
appropriate form whenever consent is required.
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Be provided access to
your
clinical records.
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Apply for public assistance benefits
such as Medicare and Medicaid.
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Authorize the release of information
and clinical records to appropriate persons.
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Authorize your admission and transfer
to or from a health care facility.
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Continue to make health care decisions
for you even if the court appoints a guardian for your property.
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Withhold or withdraw life-prolonging
procedures if you have specifically authorized the surrogate to
make such decisions under Florida's Living Will Statute.
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 Living
Wills
"Informed
consent" is the right of you, the patient, to understand treatment
proposed by a health care provider including cost, risk, and alternatives
before consenting to such treatment. You have the constitutional right to
refuse proposed treatment either personally or through a surrogate who
must act according to your wishes expressed in the Living Will.
Even with a Living Will, there is no
guarantee that medical providers will honor the document. If your
wishes are not stated explicitly in the Living Will, many Florida
hospitals will refuse to follow your wishes about treatment or
require a court hearing to determine the course of treatment.
It is important that the Living Will and
Designation of Health Care Surrogate:
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Express your particular wishes in accordance with
your values and your religious and moral
beliefs.
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Name a surrogate who is trusted to
make medical and life sustaining decisions when you are
incapacitated.
The following information is
designed to help tailor the Living Will to fit your needs by identifying
conditions and treatments that are not covered in the law.
The Florida statutes define
a "terminal condition" as:
-
Terminal condition is "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."
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End-stage condition is defined as "an irreversible condition
that is caused by injury, disease, or illness which has resulted in
progressively severe and permanent deterioration, and for which, to a
reasonable degree of medical probability, treatment of the
irreversible condition would be ineffective."
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Persistent vegetative state is "a permanent and irreversible
condition of unconsciousness in which there is:
(a) the absence of voluntary action or cognitive behavior of
any kind, (b) an inability to communicate or interact purposefully
with the environment."
It is not clear whether this
definition of "terminal condition" includes latter stages of Alzheimer's,
stroke, Parkinson's or other chronic illnesses. To insure that treatment
wishes are honored, the definition of "terminal condition" can be expanded
to include any condition which renders the individual unable to care for
himself such as:
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A massive
cerebrovascular accident.
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Severe prolonged
Alzheimer's disease.
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Parkinson's disease.
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Lou Gehrig's disease.
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Similar catastrophic
traumas, diseases, or illnesses.
The following "life prolonging
procedures" may be discussed in the Living Will.
-
Cardiopulmonary resuscitation (CPR).
May require a DNR (do not resuscitate) order to avoid CPR.
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If the point of death, using drugs and
electric shock to keep the heart beating.
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Artificial nutrition and hydration
(forced feeding and fluid through tubes in the veins, nose, or
stomach).
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Mechanical, drug, or chemical
treatment by any means.
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Mechanical breathing assistance
(breathing by machine).
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Chemotherapy (using drugs to fight
cancer).
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Invasive diagnostic tests (for
example, using a flexible tube to look into the stomach).
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Blood or blood products by
transfusion.
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Antibiotics (using drugs to fight
infection).
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Surgical procedures, major or minor.
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Pain medications.
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