A Power of Attorney (POA) is a versatile part of an estate plan. It gives another person the legal right and authority to make selected decisions, decisions chosen by the Grantor of the POA.
There are different things a POA can do. Let’s start with the most fundamental feature, whether the POA continues to work when the Grantor is alive but incapacitated. A general POA terminates when the grantor becomes incapacitated or dies. A Durable POA remains in effect even when the grantor becomes incapacitated but does terminate upon the Grantor’s death. Thus, a Durable POA is useful for allowing family members to handle certain aspects of life when a person is incapacitated, such as operating a business or maintaining a household. The selected person has the power and authority as chosen and expressed in the POA.
A POA can be a very flexible advance directive. It can include some or even all of the functions of a Health Care Surrogate designation and a Living Will. A Durable POA may even be limited to medical decisions and such a POA is often called a Medical POA.
For POAs signed in Florida after October 2011, a POA is always active and does not become active in a period of incapacity. Before October 2011, there had been something referred to as a springing POA that became active only when the Grantor became incapacitated. That proved to be difficult to administer so springing POAs are no longer permitted in Florida.
A Medical POA may apply more often than a Living Will because a Living Will is limited to near death decisions. A Living Will is used to declare a person’s desire to not have life-prolonging measures be taken if there’s no hope of recovery. A Medical POA applies in more circumstances than a Living Will, not just in end stage circumstances.
To make matters even more confusing, a Medical POA may be called other names as well, including a Durable POA for Health Care or as a Health Care Proxy. A Medical POA is most useful if you are unconscious or otherwise unable to make medical decisions. It is often more desirable than a Living Will because of its application in times of incapacity that are not “end of life.” But one thing is certain, as with a Health Care Surrogate designation, a Medical POA requires a person fully trusted to make these very important decisions.
A Medical POA may be combined with a Durable Power of Attorney. Then it can cover virtually any aspect of life, medical, financial, business and property. Having a Durable POA is wise because of the risk of emergencies, illnesses, accidents and surgeries. If the Grantor is, for example, in a coma, someone has to make medical decisions, pay bills, respond to mail, handle your checking account, and many of the ordinary day-to-day activities that are so easily taken for granted.
POAs in Florida are strictly governed by statute, chapter 709, Florida Statutes. What may have been valid before October 1, 2011, would not be valid if executed today; the requirements of the state law amended and effective in 2011 are very particular.
Durable POAs have peculiarities that require special attention:
- The rights of the holder of a POA cease at the death of the Grantor.
- The Grantor must trust the person selected to be the POA completely because that person has the power to access bank and financial accounts and records, buy and sell property and otherwise bind the grantor legally, unless specifically limited by the language in the POA.
- The person selected as a Medical POA must also be chosen carefully. The Grantor should trust that the person who makes the decisions will sincerely act in the Grantor’s best interests.
- Finally, the person chosen to be the POA should be carefully selected because s/he has the option to decline the responsibility. An alternate or another person may be thrust into an unexpected role.
This has probably been confusing. It is a tough topic to explain because there are multiple names and variations for the documents that have, over time, begun to overlap each other and in some cases blend together.
If you need help in understanding some of the differences between these different documents, the following chart may prove to be helpful or please call and we will try to help clarify this confusing area of the law.
|Health Care Surrogate||Medical POA||Living Will|
|Terminates when Grantor becomes incapacitated or dies. Terminates when the Grantor revokes it.||Remains in effect when Grantor becomes incapacitated. Terminates at death or when the Grantor revokes it.||A person who can make health care decisions during a periods of incapacity.||Aka: Durable POA for Health Care or Health Care Proxy. Becomes “active” whenever you are unconscious or otherwise unable to make medical decisions.||Limited to near death decisions; used to declare a person’s desire to not have life-prolonging measures when there is no hope of recovery.|
|May be limited to certain aspects of life, i.e., medical decisions or financial matters, and may be very limited and specific.||May be limited to certain aspects of life, i.e., medical decisions, financial matters and may be very limited and specific.||Has the duty to consult with doctors and other health care providers and decides on the course of treatment provided to or withheld from the Maker.||Maybe combined with a Durable POA to cover any aspect of life, medical, financial, business and property decisions.||Typically, the Maker defines what s/he does or does not want in terms of end stage care.|
About the Author
John Campbell has retired from a 40-year legal practice as a trial attorney in Tampa. He has served in multiple volunteer roles at Idlewild Baptist Church in Lutz, Florida, where he met Jesus. He began serving as the Executive Director of the Idlewild Foundation in 2016. He has been married to the love of his life, Mona Puckett Campbell, since 1972.