Everyone needs certain essential documents as they get older. These documents outline provisions if we need someone to make decisions or handle affairs for us, such as in the case of an accident or serious health crisis. In reality, we should all put them into place as soon as possible after turning 18. They include the Durable Power of Attorney and Healthcare Surrogate. Our team clears up the differences, explains why you need them and answers some FAQs...
Why do I really need documents like a Durable Power of Attorney and Healthcare Surrogate?
Without such documents, your loved ones will face numerous complications in handling your needs should such a situation arise. Additionally, the law makes standard provisions for healthcare decision making. Therefore, someone you don’t want could end up being in control. And, not having such documents will often create the need for a guardianship. This process can be a strain on both the wallet and emotions. With just a little preparation, you can avoid a lot of headaches and heartbreak.
The Essential Planning Documents: Defining Terms
Durable Power of Attorney (AKA Durable Power of Attorney for Finances)
You may be familiar with the term Power of Attorney. They’re often used temporarily to deal with specific transactions. For example, you execute one to allow someone to sign papers related to the sale of your home when you can’t be at the closing. A power of attorney designates someone to take actions on your behalf, such as handling bills and signing contracts.
However, the essential document you need for planning is called the Durable Power of Attorney. This means that the document remains valid and in effect even if you become incapacitated (the very reason you may need it!). If a power of attorney does not specify that the power is durable, your agent will not be able to act when you’re incapacitated.
Be Aware: State Difference in Power of Attorney Rules
Each state has slightly different terms and regulations about such documents. Here we are mainly using Florida as a reference point since that is where we operate and assist clients. The Florida Power of Attorney statute can be found here (Florida Chapter 709). You can also read a bit more about the document and some updates to the law made in 2011, from our care management team.
Will my Power of Attorney be valid in other states?
Most states will accept your documents created in another state. Many of the requirements for a valid power of attorney are the same, but of course, if you are relocating or live between states you should have an attorney review your documents. Here is the Florida statute about Power of Attorney validity (as you can see from the information on documents made prior to 2011, it is wise to update older documents).
Healthcare Surrogate Designation (or Medical Power of Attorney/Power of Attorney for Healthcare)
This document designates someone to make health care decisions for you (see the link below for a definition). You can also designate an alternate should that person not be willing, able or “reasonably available”.
The Florida statutes governing Health Care Advance Directives can be found here (Chapter 765). Typically, this document takes effect when your primary physician determines you’re unable to make health care decisions. However, updates to the Florida statute provided that you can designate instead that it takes effect immediately (for either or both: receiving information and making decisions for you). This can save the hassle of having to get the documentation at the time of need, which can slow down vital medical treatment. Also, many people like to have someone help them with medical care and thus be able to receive information, even if they are still the decision maker. The statute clearly states that your own instructions about your health care always supersede any conflict with your surrogate if you still possess capacity. In other words, you retain control.
Can the Durable Power of Attorney for finances and the Healthcare Surrogate be the same document? Should I appoint the same person to do both?
These can be put into the same document, as long as it meets all the requirements. But most attorneys will recommend separate documents for clarity. Also, many times you don’t need to or want to provide one document to all people involved (such as sharing the financial Power of Attorney with medical providers).
And, of course, this is also true because you may designate different people. This can sometimes create conflicts, so it’s important to think through all decisions on such matters. It is important to note, for example, that the Florida healthcare surrogate includes the "decision to apply for private, public, government, or veterans’ benefits to defray the cost of health care". In this way and many others, financial and healthcare decisions often intertwine.
Good Planning: More than Just Executing a Power of Attorney
For this reason, we recommend discussing advance care planning with your care manager and attorney. And, of course, those you designate. Advanced care planning is about more than just completing a form. The decisions can be quite complex, and you want to be as clear as possible. You also want to think through different scenarios, which experienced professionals can help you do.
This is not something to keep secret from loved ones. You need to make sure the person is willing and comfortable with the role (as well as possibly letting those you do not designate know your decision and reasons). Additionally, of course, it helps to give them some guidance and discuss your feelings on aging, health and quality of life.
Along with the durable power of attorney and healthcare surrogate, you should complete a living will which directs providers in particular end-of-life situations. National Healthcare Decisions Day and Caringinfo.org offer a list of more resources on advanced care planning to help you clarify your wishes.
Consult with an aging life care manager to discuss your questions and concerns. Take control, make a plan. Discuss scenarios and lay out your wishes. Get help with family mediation and referrals to top legal and financial professionals.