What Is A Medical Power Of Attorney?

In Florida, a medical power of attorney is referred to as a healthcare surrogate, which is a person who has been given the authority to make medical decisions on behalf of someone else. The designation of healthcare surrogate will give someone a laundry list of authorities and powers to make decisions regarding a person’s medical care, such as whether they will be placed in a nursing home or with hospice. A healthcare surrogate might also have the power to provide informed consent for surgery on someone else’s behalf, be able to place them into a mental health treatment facility, and exercise a do not resuscitate order.

What Is The Difference Between A Power Of Attorney And A Conservatorship?

In Florida, a durable power of attorney is a private transactional document between one person and another person whom they have chosen to serve on their behalf. Typically, the creation of this legal document is fairly inexpensive compared to a conservatorship. After the creation of the legal document, any issues between the creator and agent would have to be resolved in court by a lawsuit. This means that if a creator or a creator’s family members become unhappy with or dispute the level of work or nature of decisions made by the agent, then there would have to be a lawsuit to settle those matters.

A guardianship is a long, court-supervised process which is typically accompanied by legal fees and costs of $10,000 to $15,000. The benefit of a guardianship is that the probate court should provide a high level of transparency with respect to the actions of the person who is named guardian and his or her management of medical and financial decision-making. Any major actions or decisions would have to be approved by the probate court judge, and every dollar spent in the previous year would have to be tracked in an annual accounting. Upon a person’s appointment as guardian, they would have to notify the court and all next of kin of the assets, sources of income, and liabilities. Often times, this level of transparency can be beneficial.

Does My Attorney In Fact Have Unlimited Power?

The powers afforded to an attorney, in fact, are limited to what is set forth in the legal document that the creator signs. In years past, a durable power of attorney document simply stated that the person named as the agent could do anything with regard to financial matters, which gave attorneys, in fact, unlimited power in that regard. However, new versions of the power of attorney statute require much more specificity with respect to the powers that are granted. This turned a 1-page durable power of attorney into a 4 to 6-page durable power of attorney; in the last 10 years, the legal changes have resulted in a 14 to the 30-page durable power of attorney document.

If someone does not want the attorney in fact to have unlimited power (which is only sometimes recommended), then they can curtail the powers afforded to the attorney in fact. In Florida, there are certain powers referred to as “superpowers” that specifically require the creator to initial in writing. These powers can give an attorney, in fact, the power to change beneficiaries, make gifts, create trusts, sign disclaimers, etc.

The problem with not having an unlimited power of attorney or not having many powers specifically laid out is that the attorney might be unable to take action. For example, a durable power of attorney document might not give an agent authority to take a required minimum distribution from a retirement plan that would result in taxation, or may not allow for the surrender or change of owner of a life insurance policy, which could have legal effects with Medicaid asset protection of that life insurance policy. Striking a balance between giving an unlimited power of attorney versus curtailing and restricting the powers of the agent requires counsel and a careful selection of the people named as agents or attorneys in fact.

For more information on Medical Power Of Attorney In Florida, an initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (904) 398-6100 today.

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