Powers of Attorney and Health Care Surrogates
Who can you trust to make decisions and carry out plans?
Estate planning, with its intricate details and considered nature, can solidify your future plans; Yet a misstep in selecting the executor or representative could undermine the entire process, leaving your intentions ignored or misrepresented.
At The Levy Firm PLLC in Fort Lauderdale, FL, we excel in helping you navigate these decisions to guarantee your estate plans are upheld. We can help you define your goals and list the qualifications your designees should have for the most effective execution of your wishes. If you are planning your estate in South Florida, contact us to learn more about designations and how to choose the right representative for you.
Designees make decisions for you
In Florida estate plans, designees are the people who carry out your plans and make tough decisions for you when you are unable to do so due to incapacitation or death. These are the people who consult your legal documents and make their best effort to do what you would have wanted in situations involving child guardianship, medical care, asset distribution, financial, business operations, and more. Depending on your circumstances, designees in your estate plan may include:
- Personal Representative or Executor
- Power of Attorney
- Durable Power of Attorney
- Health Care Surrogate or Proxy
Designated roles in Florida estate plans
Designated authority through estate planning comes with legal power and responsibilities. If an individual is incapacitated, durable powers of attorney and health care surrogates are in charge. Remember, you can name the same person for all of these roles, or you can name different people for each role.
Power of attorney
A power of attorney (POA), also known as an attorney-in-fact, is authorized to make financial, business, guardianship, and other legal decisions on your behalf. (Note that your power of attorney need not be an actual attorney, just a competent person who is at least 18 years old.) With respect to estate planning, we typically use a durable power of attorney, which means their power to make decisions on your behalf endures even if you become incapacitated and unable to manage your own affairs.
You can choose to create a “general” power of attorney, which delegates broad power to manage almost all of your affairs, or a “limited” power of attorney with only specific, narrow responsibilities. Some of the decisions a POA can make on your behalf include:
- Lease, sell, purchase, exchange, and acquire property, including real estate, personal property, stocks, bonds, etc.
- Run business affairs, including decisions about hiring, firing, selling, expanding, etc.
- Open, close, and manage bank accounts.
- Hire professionals such as accountants or lawyers to help with their duties.
- Commence, pursue, and defend legal proceedings.
- Ensure financial family care and maintenance.
There are only a few things you legally cannot delegate to a POA, such as casting a vote on your behalf. Your POA also cannot make changes to your will or delegate their duties as power of attorney to someone else.
Note that there are other types of power of attorney. A non-durable POA has the power to act on your behalf but loses that power if you become incapacitated; this can be useful if you are, say, on vacation, but is not helpful for estate planning. A “springing” POA comes into effect if you become incapacitated; this sounds like it would work well for estate planning, but it can actually lead to confusion if there is dispute regarding when exactly you become incapacitated. That’s why we typically recommend durable powers of attorney for estate planning purposes.
Health care surrogates and proxies
A health care proxy or surrogate, also known as a medical power of attorney, is empowered to make medical decisions on your behalf if you are incapacitated. In general, health care surrogates are guided by stipulations in prerecorded medical directives and legal documents to make medical decisions for you as if you were the one making them. The authority a surrogate has depends on the estate planning documents, but in general, a surrogate has the power to:
- Begin, continue, or end life-prolonging procedures
- Get a second, or more, medical opinions
- Approve surgeries and other medical procedures
Many people designate back-up health care surrogates to fulfill advanced care directives should the primary surrogate be unavailable.
Personal representatives
A personal representative is appointed to manage a deceased person's estate. Personal representatives, also known as executors, handle tasks like:
- Asset management
- Debt settlement
- Tax payments
- Asset distribution
- Defense against invalid claims or contests
The key difference between a personal representative and a power of attorney is that a power of attorney is empowered to act on your behalf during your life, whereas a personal representative manages your affairs after your death.
Questions to ask power of attorney and surrogate candidates
Designating and appointing the right people to carry out your advanced directive and wishes can help ensure that your legacy is honored, and your loved ones are protected. Here are some things to consider when selecting the right person to make decisions for you:
- Trust. Can I trust this person to make decisions in my best interests if I become incapacitated?
- Availability. Will this person be readily available to make decisions on my behalf when needed?
- Understanding. Does this person understand my values, beliefs, and preferences regarding financial matters and healthcare decisions?
- Communication. Can I communicate openly and effectively with this person about my wishes and expectations?
The Levy Firm PLLC can help you find answers to these questions and provide guidance to ensure clarity and legality of designees.
Florida estate planning done your way
If you need assistance choosing and officially designating a power of attorney or health care proxy in South Florida, contact The Levy Firm PLLC. We can explain the law and answer your questions during a confidential free consultation with Geoff, our founding attorney. We are ready to hear from you today; Contact us anytime.