What is an Advanced Health Care Directive?

Under Florida Statute Chapter 765, the Florida Legislature has given patients the right to control their medical treatment, and the right of patients to control their medical care arises from the doctrine of informed consent.

An advance health care directive provides written directions and guidance as to a person’s future medical care in the event of mental incapacity. They can be very specific or general by the maker of them.

The basic estate planning documents are the following:

Living Will

A living will is a document that provides instructions as to how they should be treated in the event that they should have a terminal condition, an end-stage condition or is in a persistent vegetative state. It explains the type of medical care desired by the person, and it further explains under what condition life-sustaining treatment should be initiated or discontinued. Once the document has been witnessed and signed, it is the responsibility of the creator of the document to inform their physician of it. Yet, it is best to provide your treating physician and any other doctors or hospitals with a copy of the document. Moreover, the living will can be revoked by its creator at any time.

Health Care Surrogate

A health care surrogate is a person appointed by a competent adult to make all their health care decisions if they are found to be incapacitated. The health care surrogate will meet with the doctors and those administering the health care and making sure that your health care decisions are being done, not what the health care surrogate would personally want for you. Moreover, the health care surrogate may be revoked at any time.

Power of Attorney (or Durable Power of Attorney)

A power of attorney is a document that gives specific, like buying a car or house, or very broad power from the person (principle) to another (attorney-in-fact), and these powers terminate if the principle becomes incapacitated. However, a person can have a durable power of attorney (DPOA) document that will remain in effect even if the principle is declared incapacitated, and the attorney-in-fact will have the authority to act on behalf of the principle.

Last Will & Testament

A will is a document that provides your wishes as to how you would like to distribute your property upon your death. It should have the following requirements: in writing, signed, attested to by two (2) witnesses, and the testator must sign it in the presence of the two (2) attesting witnesses or acknowledge that he previously signed it. A will can also include the following: trust provisions like providing a certain amount of money to a charity or a provision setting up a trust for your pet or naming a guardian for your minor children.

Revocable Trust (Living Trust)

A revocable trust or so-called “living” trust is a way to distribute a person’s assets as an alternative to a will. It is “living” because the property can be transferred in and out of the trust by the owner during their lifetime. Since it is a “revocable” trust, it can be changed, a trustee can be replaced, or the entire arrangement can be revoked if the person setting up the trust, the “settler,” has the legal capacity. Yet, after the settlor’s death the trust becomes irrevocable, and the trust’s assets are then distributed according to the instructions without passing through probate.

Each person’s estate planning needs are based on that person’s estate including their assets and property as well as if they would like to have someone else or at least make their wishes made known for their health care decisions if incapacitated. It is important to have the necessary documents completed especially if you have children; for example, naming a pre-need guardian for your children in your last will and testament. It is planning for the “what if’s” just in case and not leaving it to someone else or the court to decide.

Even if you have the documents from another state, you should have them reviewed by an attorney licensed in the state of Florida to confirm they comply with Florida law.

If you would like to talk to an attorney to have estate planning documents created, please fill out our online form or feel free to contact us at (727) 822-7121.