By: Tamara R. Pallas
As published in the Daily Business Review on April 20, 2020
With the influx of coronavirus (COVID-19) cases, it has become increasingly important to plan for serious illness or incapacity. As a result of the pandemic, many people have focused on creating a plan for the distribution of their assets after death through a trust, will or by updating their current estate plans. While updating or drafting those testamentary documents is advisable, many people overlook other important decisions that must be made in case you or a loved one become seriously ill or hospitalized.
There are several legal documents that can be prepared that will help you and your loved ones navigate a serious illness or hospitalization. Advance directives allow you to plan and explain your preferences for crucial end-of-life matters such as who will make medical decisions for you, who will handle your finances while you are hospitalized, and what type of life-prolonging treatments you would consent to if you were able.
Memorializing these wishes serves medical professionals and family members alike. Through these documents, you provide important guidance to doctors about whose decision to follow if family members disagree on your care or treatment. Similarly, by having clear instructions you shelter loved ones from the burden of making these difficult decisions for you without any direction. No one wants to decide whether to say yes to a ventilator or sign a do not resuscitate order without any insight about what their loved one would want.
Thankfully, Florida law recognizes several documents to help you plan for these difficult decisions. If executed properly, these documents provide a road map of your wishes should you become unable to articulate them.
The following are some documents that should be considered in order to properly prepare for temporary or permanent incapacity caused by serious illness: health care surrogate, living will, pre-need guardian, and durable power of attorney. Below is a brief explanation of these documents and how they can work for your future needs:
- Health Care Surrogate: A health care surrogate designation appoints someone as your proxy for all medical decisions when you are incapacitated. Some examples of the types of decisions your proxy could be asked to make on your behalf are whether to consent to a blood transfusion, whether to intubate you, and in the most serious cases whether to resuscitate you. Your proxy will be asked to make these decisions whether your incapacity is temporary (i.e. in an induced coma, under general anesthesia) or permanent (i.e. serious brain damage from a stroke or accident). If you are awake, alert, and able to make informed medical decisions, a health care surrogate will not be able to go against your wishes. Medical professionals will always defer to the patient’s wishes when they can.
- Living Will: A living will is another important tool that is heavily relied upon to make end-of-life medical decisions. A living will is used by your loved ones when you are seriously ill and details which life-prolonging treatments they should consent to on your behalf. This document guides your loved ones through the most difficult of decisions. Many loved ones differ on life-prolonging measures and having a written document that memorializes your wishes will minimize unnecessary family turmoil or disagreements. With this document, your loved ones will also be more at peace with their decisions knowing that they honored your wishes.
- Pre-Need Guardian: A pre-need guardian designation is a written document that names who you would like to serve as your guardian if your incapacity becomes long-term or permanent. If you are likely to suffer from long-term incapacity or disability your loved ones may need to initiate a guardianship proceeding. This document specifies who you prefer be appointed to handle your personal and/or financial needs should a guardian be appointed to manage your affairs. You can name multiple people or designate an alternate preference as well.
- Durable Power of Attorney: A durable power of attorney is a legal document in which you select a person to act as your agent or attorney-in-fact. This person effectively steps into your shoes and is able to make decisions on your behalf as though they were you. As such, a durable power of attorney is a powerful too. You can limit your agent’s authority to only manage certain aspects of your affairs depending on how the document is drafted. This document is generally used with banks and to make financial decisions during your incapacity. This document will allow your agent to access your funds and pay your bills while you are hospitalized or seriously ill. This can be particularly useful if you are incapacitated and need a forbearance or modification of your mortgage or other bills.
In order to know which documents are right for you, you should consult with an attorney specializing in estate planning so that they can draft a cohesive and clear plan to ensure that those you trust will be the ones making the correct medical and financial decisions if you are temporarily or permanently unable to do so yourself.
Tamara R. Pallas is an attorney in the trusts and estates practice group at Fowler White Burnett where she focuses her practice on estate planning and administration, guardianship matters, and probate litigation. Contact her at TPallas@fowler-white.com