Attorney
If a person becomes physically or mentally incapacitated [1], that person needs a legal document (i.e. a power of attorney) stating who can act on his or her behalf as it relates to financial or medical decisions. If a person does not appoint a person to act on their behalf prior to becoming incapacitated, then the court must appoint a guardian to act on their behalf and make important decisions. The process of appointing a guardian can be expensive and time-consuming. Therefore, it is critical to have a power of attorney in place before an emergency creates the need for one.
The Distinction: Financial vs Medical
In general, a power of attorney is an extremely important and valuable legal document that allows the “Agent” or “Attorney-in-Fact” to act on another person’s behalf. There are two types of Powers of Attorney: (1) a Durable (financial) Power of Attorney; and (2) a Medical Power of Attorney. Although both a financial and a medical power of attorney authorize the Agent to step into the shoes of the principal (signor) to act on his or her behalf, each one authorizes the agent to make different decisions. Since there are major differences between a financial and a medical power of attorney, it is important to have both of these documents in place in case of an emergency.
A Durable (Financial) Power of Attorney gives the principal the ability to grant one or more agents the power to transact business and handle finances as if the agent were in the shoes of the principal. It is important to choose someone you trust to be the agent of your Durable Power of Attorney, as the agent will have access to your financial information to handle matters such as banking, government benefits, retirement accounts, legal proceedings, insurance information, and bill paying. A Durable Power of Attorney becomes effective immediately at the time of signing.
A Medical Power of Attorney, also known as a Health Care Surrogate, gives the principal the ability to grant one or more trusted individuals the power to act on his or her behalf for all medical-related care. A Medical Power of Attorney is a legal document where the principal can authorize his or her healthcare surrogate to receive health information, make healthcare decisions for the principal, apply for government support to assist with the cost of health care, and other specific instructions the principal includes within the document. A Medical Power of Attorney only controls decisions after the principal becomes incapacitated. As such, the principal’s wishes are controlling while he or she has the capacity and can understand decisions regarding the principal’s medical treatment.
Rest assured, both of these documents can be revoked or changed at any time while the principal still has capacity. For example, if a principal has a change of heart and wants to select a different person to act on his/her behalf, he/she can revoke a previously executed power of attorney and appoint a new agent. Additionally, a principal can modify what powers he/she grants to the agent or attorney in fact at any time to limit or expand the agent’s ability to act on the principal’s behalf.
The Importance of a Power of Attorney
As we all know, life can change in an instant. Thus, it is essential to have a financial and medical power of attorney in place so that you are prepared for any unexpected event life throws at you. If you have these documents already created, it may be helpful to consult legal counsel to determine whether your documents were properly executed and valid under Florida law, as there are certain statutory requirements for creating a valid power of attorney. If you have not already prepared these documents as part of your estate plan, it is critical to have them readily available if or when the time comes that someone you trust needs to step in and make decisions on your behalf quickly and effectively.
If you need assistance reviewing or creating a power of attorney, contact Boatman Ricci to schedule a consultation today.
[1] – “Incapacitated person” means a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person. Fla. Stat. Section 744.102(12)
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