Transcript Living Will - Dade Legal Aid

Life Planning
By
Gerald W. Pierre, Esq.
David Howard Goldberg, P.L.
Office in Miami, Florida
Phases of Life
• Younger Years
– Simple Will
• Middle Years
– Complex Will, including provisions for
children, life insurance, etc.
• Retirement
– Estate Tax Planning
– Incapacity Planning
– Insurance Planning
Life Planning Documents
Health Care
Surrogate
Living Will
HIPAA
Client
Burial and
Funeral
Designations
Will
Pre-Need
Guardian
Durable
Power
Of Attorney
Overview
• Estate Planning is the set of all the action
that a person takes to provide for the
orderly and timely settling of his or her
affairs after death.
• Estate Plan arranges what will happen to
your assets after your death – who and
how.
Advanced Health Care Directives
• Florida Statute Chapter 765, which is
entitled, “Health Care Advance Directives”,
will be the primary resource.
• Two important areas to focus on:
– Appointment of Health Care Surrogate
– Creating a Living Will
Advance Health Directives Legislative Intent
• As stated in Florida Statute 765.102(1) and (2):
– (1) The Legislature finds that every competent adult
has the fundamental right of self-determination
regarding decisions pertaining to his or her own
health, including the right to choose or refuse medical
treatment. …
– (2) To ensure that such right is not lost or diminished
by virtue of later physical or mental incapacity, the
Legislature intends that a procedure be established to
allow a person to plan for incapacity by executing a
document or orally designating another person to
direct the course of his or her medical treatment
upon his or her incapacity. …
Appointing the Right Health Care
Surrogate
• Health Care Surrogate is covered under Florida
Statute sections 765.201 through 765.205.
• Duties are covered under Florida Statute
765.205.
• Health Care Surrogate can be any competent
adult who has been given authority to make all
health care decisions on behalf of the principal
during the principal’s incapacity. See Florida
Statute 765.101(14)
• Appointment of a guardian affects the surrogate
to the extent the Court so orders under Florida
Statute 744.3115.
Appointing (Cont.)
• Principal can designate an Alternate Surrogate
• In the absence of a living will, the surrogate can
make decisions to withhold or withdraw medical
treatment. See Florida Statute 765.305
• Surrogate must be satisfied that principal will not
regain capacity so that they can exercise that
right and that principal has an end-stage
condition. See Florida Statute 765.204(3)
Appointing Health Care Surrogate
• Requirements (Florida Statute 765.202):
– Written document.
– Signed by the principal in the presence of two witnesses.
– If the principal is physically unable to sign the instrument, the
principal can direct one of the witnesses to sign it in the
presence of the other.
– Designated Health Care Surrogate cannot be a witness.
– Exact copy of the instrument must be provided to surrogate.
– At least one witness shall not be either the principal’s spouse nor
blood relative
• Instrument remains in effect unless the document states
a time of termination or is revoked by the principal
• A suggested form of a Health Care Surrogate is provided
under Florida Statute Section 765.203
Health Care Surrogate
• The surrogate’s authority shall commence when
the attending physician enters into the principal’s
medical record that the principal does not have
the capacity to make informed health care
decisions. If there is a question as to capacity, a
second physician shall also evaluate. Authority
remains in effect until a determination that the
principal has regained such capacity. See
Florida Statute 765.204.
Health Care Surrogate Amendment
or Revocation
May be amended or revoked at any time by a competent principal:
• By a signed and dated writing;
• By physically canceling or destroying the original document by the
principal or by another in the principal’s presence and at the
principal’s direction;
• By orally expressing the intent to amend or revoke; and
• By executing another document that is materially different from the
previously executed advance directive.
It becomes effective when it is communicated to the surrogate, health
care provider, or health care facility.
See Florida Statute 765.104.
Health Care Proxy
• Comes into effect where an incapacitated
or developmentally disabled patient has
neither executed an advance directive nor
appointed a surrogate to execute an
advance directive or the designated or
alternate surrogate is not available to
make medical decisions
Proxy Candidates in Order of Priority
(See Florida Statute 765.401)
• Court Appointed Guardian;
• Patient’s spouse;
• Patient’s adult child or the majority of adult children who are
reasonably available for consultation;
• Parent;
• Adult sibling or majority of siblings who are reasonably available for
consultation;
• Adult relative who has exhibited special care and concern for the
patient, who has maintained regular contact with the patient, and
who is familiar with the patient’s activities, health, and religious or
moral beliefs;
• Close friend; or
• Clinical social worker licensed pursuant to chapter 491, or who is a
graduate of a court-approved guardianship program
Living Will - Generally
• Purpose is to direct the principal’s instruction to medical
professionals as to providing, withdrawing, and
withholding of life prolonging procedures in the case
where the patient has a terminal condition, end-state
condition, or is a persistent vegetative state.
• Living Wills are covered under Florida Statute sections
765.301 through 765.309
• Florida will recognize a Living Will, which has been
signed in another state, if it complies with the laws of that
state or is in compliance with the laws of the State of
Florida. See Florida Statute 765.112.
Living Will
• Requirements (Florida Statute 765.302):
– Written document;
– Signed by the principal in the presence of two witnesses, one of who is
neither a spouse not a blood relative;
– If the principal is physically unable to sign the living will, one of the
witnesses must sign it in the presence and at the direction of the
principal; and
– It is the responsibility of the principal to provide notification to his or her
attending or treating physician.
• A suggested form of a Living Will is provided
under Florida Statute 765.303, which is provided
as a courtesy of The Florida Bar and the Florida
Medical Association
Procedure for a Living Will
• If there is a living will, but no designation of a
surrogate to execute his or her wishes
concerning life-prolonging procedures, the
attending physician proceeds as directed.
• In the event of a dispute concerning the
attending physician’s decision to withhold or
withdraw life-prolonging procedures, the
attending physician shall not withhold or
withdraw life-procedures pending review under
Florida Statute 765.105.
Procedure for a Living Will
(cont.)
• If a review of disputed decision is not
sought within 7 days following the
physician’s decision to withhold or
withdraw life-prolonging procedures, the
attending physician may proceed in
accordance with the principal’s
instructions.
Determinations Before Proceeding with Living Will
(See Florida Statute 765.304(2))
• Principal does not have a reasonable medical
probability of recovering capacity so that the
right could be exercised directly by the principal;
• Principal has a terminal condition, has an endstate condition, or is in a persistent vegetative
state; and
• Any limitations or conditions expressed orally or
in a written declaration have been carefully
considered and satisfied.
Living Will
May be amended or revoked at any time by a competent
principal:
• By a signed and dated writing;
• By physically canceling or destroying the original
document by the principal or by another in the principal’s
presence and at the principal’s direction;
• By orally expressing the intent to amend or revoke; and
• By executing another document that is materially
different from the previously executed advance directive.
It becomes effective when it is communicated to the
surrogate, health care provider, or health care facility.
See Florida Statute 765.104.
Durable Power of Attorney
Generally: It is a written authorization to
represent or act on another's behalf in
private affairs, business, or some other legal
matter.
This power is “durable” because it continues
even after the principal becomes
incapacitated.
Durable Power of Attorney
• “Durable” if the power of attorney contains the
words: “This durable power of attorney is not
terminated by subsequent incapacity of the
principal except as provided in chapter 709,
Florida Statutes,” or similar words that show the
principal’s intent that the authority conferred is
exercisable notwithstanding the principal’s
subsequent incapacity
• See Florida Statute 709.2104
Purpose of Durable Power of
Attorney
• Florida Statute Chapter 709, which is
entitled, “Powers of Attorney and Similar
Instruments”, will be the primary resource
• Purpose
• Individual (the “principal”) executes a document
giving another person (the attorney-in-fact or
agent”) the authority (the power of attorney or
POA) to act on the principal’s behalf.
DPOA Requirements
• Written document
• The agent must be a natural person who is 18
years of age or older or a financial institution that
has trust powers, has a place of business in this
state, and is authorized to conduct trust
business in this state.
• Signed in the presence of two witnesses and
before a notary
– Florida Statutes §709.2105
DPOA General Structure
•
•
•
•
Opening
Powers
Guidance
Execution
DPOA Agent’s Powers
• Standard powers – Florida Statute 709.2201
• Special powers if the principal signs or initializes
next to each specific enumeration of authority –
Florida Statute 709.2202
• Agent is authorized to act in a limited fashion
with a particular matter as specified
DPOA Agent’s Powers (cont.)
• Common powers included in DPOA:
– Manage, buy/sell, lease, mortgage real property
interests;
– Buy/sell, exchange tangible personal property;
– Make health care decisions
– Invest on behalf of principal in assets/securities;
– Execute stock powers;
– Contract in various business affairs;
– Participate in litigation, i.e. sue on behalf of principal
DPOA Agent
• Cannot:
– Execute or revoke any will or codicil for the principal;
– Vote in a public election on behalf of principal;
– Make any affidavit as to personal knowledge of the
principal;
– Exercise powers and authority granted to the principal
as trustee or as court-appointed fiduciary and
– Perform duties under a contract that requires the
exercise of personal services of the principal
Effective Date of Power
• The powers are exercisable as of the date of execution. See Florida
Statute 709.2108(1)
• If the DPOA was executed before October 1, 2011 and has not been
exercisable before that date, the DPOA becomes exercisable upon
delivery of the affidavit of licensed physician who has primary
responsibility for treatment and care of the principal as of the date of
the affidavit. See Florida Statute 709.2108(2)
• There is also a provision that the DPOA becomes effective upon the
future deployment of the principal for armed services duty. See
Florida Statute 709.2106(4) and 709.2108(3)
POA Termination
(Florida Statutes 709.2109)
• Principal has died;
• Principal becomes incapacitated, if the POA is not durable;
• Principal is adjudicated totally or partially incapacitated by a Court
unless the Court determines that certain authority granted by the
POA is to be exercisable by the agent;
• Principal revokes the POA;
• POA provides that it terminates;
• The purpose of the POA has been accomplished; or
• The agent’s authority terminates and the POA does not provide for a
successor to act under a POA.
Agent’s Authority Terminates
(See Florida Statute 709.2109)
• Terminates when
– Agent becomes incapacitated, resigns, or is
removed by a court;
– Action is filed for the dissolution or annulment
of the agent’s marriage to the principal or their
legal separation unless the POA otherwise
provides; or
– The POA terminates.
HIPAA
• HIPAA Release Authorization - Health
Insurance Portability and Accountability Act
of 1996 (HIPAA)
• As noted by the Florida Medical Association,
HIPAA’s purpose was to provide consumer
with greater access to health care insurance,
provide privacy to health care data, and
provide national standardization and greater
efficiency in the health care system.
Burial and Funeral Designations
• Arrangements can be dictated in the last will and
testament.
• Disposition of the body (cremation, burial, or
donation)
•
•
•
•
•
•
•
Type of ceremony (Catholic, Jewish, Christian, etc.)
Funeral home to handle the arrangements
Individual to officiate
Place or location of the ceremony
Cemetery or burial plot
Disposition of ashes
Type of casket
Burial
• Funeral may be paid out of the estate
• Social Security Administration and
Veterans Administration may have some
benefits available to pay funeral expenses
Will
• Directs how the estate will be handled and
received by the heirs; must be in writing
• Distributes assets through the probate
process
• Nominates preneed guardian for minor
children
• Establishes testamentary trusts for heirs
• May reduce estate taxes
Without a Will
• Florida legislature decides who
gets what assets.
• See Florida Statute 732.102
Guardianship
• Preneed Guardian Designation (See Florida Statute
744.3045)
– Written declaration that names such guardian to
serve in the event of the declarant’s incapacity
– Signed by declarant in the presence of at least two
attesting witnesses present at the same time
– Suggestion to the Court as to preference
• Court appoints Limited/Plenary Guardian
• No access to funds; restricted depository
• Preneed Guardian for Minor (See Florida Statute
744.3046)
Resources
• Florida Statute Chapters 709, 732, 744
and 765
• The Florida Bar, Consumer Information
Section
• The Florida Medical Association
• Florida Estate Planning by Brian V.
McAvoy, Abraham M. Mora, and Shelly
Wald (West’s Florida Practice Series)
• Beliefnet
Contact Information
• David Howard Goldberg, P.L.
SunTrust International Building
One Southeast Third Avenue, Suite 1940
Miami, Florida 33131
•
•
•
•
Telephone Number: (305) 760-8888
E-mail: [email protected]
Twitter: gpprobate
LinkedIn