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Incapacity Planning

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.

Power of Attorney

A signed Power of Attorney document gives another person (the attorney in fact) the ability to act on behalf of the individual (the principal) without requiring any active participation by the principal.

The obvious danger in a Power of Attorney situation is that the attorney in fact 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.

A regular general Power of Attorney will not have validity when you, as principal, lose your capacity to make decisions. 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.

If your Durable Power of Attorney was signed before October 1, 1995, you should sign a new one.  In 1995, Florida passed a law which provides for an affidavit that the attorney in fact signs when acting under the Power of Attorney.

The affidavit states:

• The attorney in fact is the named person under the Power of Attorney.

• The principal is still living.

• The principal has not revoked the power.

The affidavit is sufficient to exonerate from liability the person or business accepting the Power of Attorney. The affidavit assures the attorney in fact the ability to carry out the powers of appointment as specified in the document.

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Designation of Health Care 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.

• Consult with appropriate health care providers to provide informed consent in your best interest.

• Provide written consent using an appropriate form whenever consent is required.

• Be provided access to your clinical records.

• Apply for public assistance benefits such as Medicare and Medicaid.

• Authorize the release of information and clinical records to appropriate persons.

• Authorize your admission and transfer to or from a health care facility.

• Continue to make health care decisions for you even if the court appoints a guardian for your property.

• 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:

• Express your particular wishes in accordance with your values and your religious and moral beliefs.

• 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."

• 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."

• 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:

• A massive cerebrovascular accident.

• Severe prolonged Alzheimer's disease.

• Parkinson's disease.

• Lou Gehrig's disease.

• 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.

• If the point of death, using drugs and electric shock to keep the heart beating.

• Artificial nutrition and hydration (forced feeding and fluid through tubes in the veins, nose, or stomach).

• Mechanical, drug, or chemical treatment by any means.

• Mechanical breathing assistance (breathing by machine).

• Chemotherapy (using drugs to fight cancer).

• Invasive diagnostic tests (for example, using a flexible tube to look into the stomach).

• Blood or blood products by transfusion.

• Antibiotics (using drugs to fight infection).

• Surgical procedures, major or minor.

• Pain medications.

All contents © 2006 The Law Offices of Charles F. Robinson