Advance Directives in Florida: What They Are and Why You Need Them

Advance Directives in FloridaYou could have a stroke or develop dementia that leaves you incapable of taking care of yourself and your property. If that happens, who will pay your bills? Who will decipher the correspondence from your insurance companies? Who will choose your physician and direct your health care? “Advance Directives” are a set of documents that will help you immensely if you become incapacitated.

Important Documents that Should Bear Your Signature, Referred to as “Advance Directives”

(1) Durable Power of Attorney

This is a document where you name someone to be your Agent. In the document you can both empower your agent to do certain things and restrict your agent from doing other things. For example, you can empower your agent to (1) have access to your financial accounts so she can pay your bills, and (2) bring and defend legal actions on your behalf so she can protect your rights. Both these powers are essential to handling your finances. However, you may choose to restrict your agent from using your finances to benefit your adult children. While you may have made gifts to your children in the past, you may not be comfortable delegating this authority to your agent.

To create a durable power of attorney in Florida you must comply with Florida Statute 709 which became effective October 1, 2011. To make the document useful while you are incapacitated it must be “durable”. This means that you must include in the document the following language “This durable power of attorney is not terminated by subsequent incapacity of the principal.” Notable facts about the power of attorney document are:

a. The Agent has to be a person who is 18 years old.

b. The Principal must sign the document in the presence of two witnesses and a notary public.

c. If the Principal physically can’t sign they can instruct the notary public to sign on their behalf.

d. The Principal must understand the nature and extent of the powers they are conveying.

e. The Agent’s powers are effective immediately!

f. The Agent’s powers terminate when the principal dies or revokes the document.

g. The Agent may be reimbursed for costs and may get compensation.

h. The Agent has duties to act in the best interests of principal.

(2) Health Care Surrogate

This is a document where you name someone to make your health care decisions. Unlike the power of attorney, it is automatically “durable”, meaning it will be in effect when the principal becomes incapacitated. To create a health care surrogate in Florida you must comply with Florida Statute 765.202.

Notable facts about the health care surrogate document are:

a. The document must be signed in the presence of two witnesses.

b. If the principal physically can’t sign the principal may instruct another person to sign for them.

c. A principal has capacity to name a surrogate unless they have been determined to be incapacitated.

d. No notary is required.

e. The person designated as surrogate can not be a witness.

f. One of the witnesses must be neither the principal’s spouse or blood relative.

(3) Living Will

This is a document where you direct the withholding of of life sustaining procedures in the event you are in a terminal condition, an end-state condition, or a persistent vegetative state. To create a Living Will you must comply with Florida Statute 765.302. Notable facts about the Living Will are:

a. The document must be signed in the presence of two adult witnesses, one of whom who is neither a spouse or blood relative.

b. If the principal is unable to sign, another person can sign the principal’s name upon the principal’s direction.

c. The living will is clear and convincing evidence of the principal’s wishes that they do not want life sustaining procedures so no surrogate needs to be named.

Estate planning focuses on two life events, death and incapacity. Advance Directives are those documents that will help you during incapacity. Give a lot of thought to the friend or family member that you will place in the trusted position of your Agent under the Power of Attorney and who will serve as your Health Care Surrogate. Then, go get these important documents completed!

Walt Shurden
Board Certified Elder Law Attorney