Incapacity Planning Lawyer in Miami
Issues that arise during a person’s lifetime are an important focus of Estate Planning. In the event that a person becomes incapacitated, either physically or mentally, proper planning can provide for the continuing care of that person and their property with a minimization of Court intervention by the preparation of documentation constituting Less Restrictive Alternatives to Guardianships. In addition, Incapacity Planning provides guidance to family and medical providers as to your wishes if you become unable to communicate your wishes on your own. A good incapacity plan should bring you and your family peace of mind.
Power of Attorney
If you need to give someone else consent to make decisions or conduct transactions on your behalf, one of your options is to use a Power of Attorney (POA). A Power of Attorney is a legal document that gives another person the authorization to act on your behalf.
When you want a Power of Attorney to be valid only in very specific circumstances, you need a Limited Power of Attorney. On the other hand, a General power of Attorney or POA is used when someone needs an Agent to be able to make a wide range of decisions for them.
Durable Power of Attorney
A Durable Power of Attorney is one that allows your Agent to manage all your affairs, even after you become Incapacitated. You may choose to give your agent authority over only your medical treatment and health care decisions (Medica Power of Attorney POA), over only your financial affairs, or you may allow the same person to manage both your finances and your medical treatment. A Durable Power of Attorney may be suspended if an Incapacity Proceeding is filed in regard to the person who granted the powers.
After a determination of a person’s Incapacity, a Court is obligated to consider if there are any existing less restrictive alternatives to Guardianship over the property and assets. A well drafted Power of Attorney can and is often seen as part of a part of a plan which constitutes a Less Restrictive Alternative to Guardianship.
A Living Will is a document that outlines your preferences regarding end-of-life medical care. A Living Will is an advance directive, which is an important element of an Incapacity Plan. The Living Will provides family and medical providers with directions as to a person’s wishes regarding the decision to either provide, withhold, or withdraw the use of life-prolonging procedures. It applies when a person has a terminal condition, an end-stage condition, or is in a persistent vegetative state.
The purpose of a Living Will is to advise a medical provider of your wishes if you are unable to communicate such wishes yourself because you have become physically or mentally incapacitated and a doctor has determined that any further treatment you receive will only prolong the dying process.
Health Care Surrogate Designation
A comprehensive Incapacity plan should include a Health Care Surrogate Designation. The person named as the Health Care Surrogate can make medical decisions, should the Principal (person who has signed a Health Care Surrogate Designation) become Incapacitated and is unable to communicate their desires regarding medical treatment.
Designating a Health Care Surrogate to make medical decisions on your behalf is important in estate and Incapacity Planning because in the absence of a person to whom you have designated these powers, a person may need to be designated by the Court. This person has similar powers to Surrogates and Agents under a Powers of Attorney but is called a Health Care Proxy. A Court appoints a Health Care Proxy for you based on s preset priority under the law. Without a designation, should you become Incapacitated, your wishes are not known regarding who is making decisions over your own medical care.
The Health Insurance Portability and Accountability Act of 1996, otherwise known as HIPAA, protects the privacy of patients’ medical records. In general, this means that a patient needs to authorize the disclosure of information about their medical treatment and records to a third person. However, since there are serious consequences for medical providers when they violate HIPAA rules, medical providers will sometimes be overly cautious and refuse to share this information.
How to Make Your Own Incapacity Plan
Incapacity planning is an essential component of Estate Planning overall. Rather than leaving decisions about your medical care and finances to someone appointed by a Court, you can designate a capable family member, friend, or business associate to fill these roles.
When making your Estate Plan, David Howard Goldberg, P.L. can offer guidance and advice on Incapacity Planning.