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It's The Law: A Durable Power Of Attorney Is Important When Ill

Question: My wife is very ill and our insurance companies and others will not talk to me about her case because they say I have no authority. Can you help me find a way to deal with these problems?

Answer: Florida has adopted healthcare advanced directive laws in Chapter 765 of Florida Statutes. The documents authorized by that chapter include a living will, which addresses life-prolonging procedures, and designation of a healthcare surrogate, which authorizes someone to make medical care decisions when the principal is unable to make those decisions. While those documents can be helpful with respect to making medical and end-of-life decisions, they do not generally give the holder authority to deal with insurance companies, Medicare, government agencies or the like. To deal with those issues, I recommend use of a durable power of attorney to our clients as part of their estate-planning documents.

A durable power of attorney can be exercised even if the principal is incapacitated. Authority to act under a regular power of attorney ends when the principal cannot act. That makes the durable power an important document.

Florida adopted statutory authority for durable powers of attorney in 1977. Initial thinking was that a durable power of attorney was quite powerful and should only be granted to close relatives. The first statute limited those authorized to act under a durable power of attorney to parents, spouses, or children of the principal. Gradually, the statute was expanded so that nieces, nephews and almost anyone related by blood could hold the power. In recognition of the fact that some people have no living relatives and others have no relatives they trust, the blood relative limitation was eliminated in 1990.

The holder of a durable power is authorized to act on behalf of the principal in virtually any aspect authorized by the power. There are certain limitations by statute or otherwise, such as the trustee of a trust cannot delegate his or her fiduciary powers by a durable power of attorney. However, for purposes of dealing with insurance companies and the like, the power works quite well. It can also allow the holder to execute documents for admission to an assisted living facility or enter contracts for care of the principal.

Floridians have two choices when creating a durable power. The power can be effective immediately or it can be delayed until some future event, which is known as a springing power. Some prefer the springing power which can only be exercised when the principal's primary physician executes an affidavit confirming that the principal lacks capacity to manage property, and the affidavit is delivered to the third party who is asked to accept the durable power of attorney. The affidavit limits ability to use the power before it is really needed. The drawback of the springing power is delay and even inability to obtain the necessary affidavit. Most estate planners prefer the non-springing power.

The attorney-in-fact may exercise authority under a durable power of attorney until the principal dies, revokes the power or is adjudicated totally or partially incapacitated by a court of competent jurisdiction. If court action is started to determine the principal's competency or incapacity, authority granted under the durable power is suspended until the court action is terminated. If the principal is determined to be incapacitated, a guardian is generally appointed by the court and the guardian's authority supercedes that of the durable power.

A durable power of attorney can include authority to make healthcare decisions. There is no specific statute for such expansion of authority, but there is nothing to prohibit it. If the power will be used for medical care directives, it is recommended that the power specifically include the authority specified by statute for living wills and health care surrogates.

The durable power of attorney can be the most important document in an estate or life planning arsenal. However, it is not without risk. The holder of the power is generally granted access to the principal's financial accounts and assets. That makes choice of attorney-in-fact important.

It is important that the durable power be prepared by an experienced attorney after consultation with the client and discussion of the client's goals and needs. I recommend you and your wife meet with an experienced attorney as soon as possible to discuss the manner in which a durable power of attorney may solve your problems.

By: William G. Morris, Esquire

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