Estate Planning - Advance Directives
Certain legal documents can be prepared and signed, to become effective if one has an accident or becomes disabled during his/her lifetime. A will is only effective at death, but advance directives are effective during one’s lifetime, and terminate at death. We recommend that clients execute some or all of the following documents, which may become necessary during one’s lifetime:
- Health Care Surrogate. Florida law provides that any competent adult may determine who make medical decisions in the event of incapacity. To be valid, the instrument must be signed by the individual, in writing, and designate who would serve as health care surrogate if that person becomes incapacitated. The instrument is effective only when that person does not have mental capacity to make informed health care decisions.
- Health Insurance Portability and Accountability Act of 1996 (HIPPA Release). Medical records are subject to multiple privacy regulations, and at times, family members or close friends are not allowed access to one’s medical records, even when it became necessary to make medical decisions on their behalf. The Florida Medical Association helped draft the HIPPA act, to give families and friends greater access to medical records, with the consent of the patient. One may now authorize that medical records be released to certain designated persons.
- Living Will. When a person has a terminal condition, or end-state condition, or is in a persistent vegetative state, Florida law allows one’s living will to control end-of-life measures, such as withdrawing and withholding of life prolonging procedures. If a patient has executed a valid living will during lifetime, and thereafter becomes incapacitated, with no reasonable medical probability of recovering capacity, the doctors or hospital may follow those directions.
- Durable Power of Attorney. If one becomes incapacitated and cannot make informed financial decisions, it may become necessary to file a petition in court to have a guardian appointed; however, if one has a durable power of attorney in place, this can avoid the appointment of a guardian, and thus save time and expense of guardianship. A durable power of attorney remains valid, even if the maker becomes disabled. The designated attorney-in-fact can then sign checks for the infirm party, transfer assets, and generally do anything authorized in the power of attorney. Florida law now requires that an individual designate with specificity what powers are authorized. The individual can also specify whether the power of attorney is effective immediately, or only upon incapacity or some other event.
- Designation of Pre-Need Guardian. Anyone may provide, in advance of incapacity, who would serve as guardian for that person, if such a guardian ever became necessary.
- Funeral and Burial/Cremation Instructions. If one wishes to specify various arrangements for funeral and burial, these can be set forth in a separate instrument. These should not be included in the will, since often one’s will is not produced until after the funeral. One can specify concerning disposition of the body – whether cremation, burial or donation of remains. One can also specify the type of religious ceremony, particular funeral home, place of burial, disposition of ashes, who will officiate at services, type of casket, etc.