Accidents, Incapacitation, And The Importance Of Estate Planning
Many people consider preparing estate planning documents like a Last Will and Testament to be a normal part of adult responsibility, making sure that their loved ones will be cared for after they are gone. However, these same individuals may not always take the same care to put measures in place to ensure their own care if they experience incapacitation – whether for the final hours of their lives, or for many years. The importance of estate planning in preventing unnecessary stress and anxiety for family members in the event of a loved one’s incapacitation too often goes unappreciated – and, as a result, may be underutilized. Talk to a Florida estate planning attorney today about how effective estate planning tools can protect your interests and your loved ones’ peace of mind in the event of an incapacitating accident. Call 561-559-6214 to schedule a consultation with Loughlin Law.
What Does It Mean To Be Incapacitated?
Incapacitation is a legal and medical term used to refer to a circumstance in which an adult becomes unable to receive and understand critical details regarding their own situation and make and communicate meaningfully informed decisions as a result. Incapacitation can be determined legally, as is the case in guardianship cases under Fla. Rev. Stat. § 744.102 (2024), or it may be determined in a hospital, by a medical professional (most often the patient’s physician). Sometimes, as with cases of cognitive decline, incapacitation comes on gradually, and gives an individual and their loved ones time to prepare. At others, incapacity may be triggered by an accident or sudden-onset illness – leaving individuals who have no standing arrangements in place at the mercy of the “next of kin” laws in their state, which in most cases closely parallel the determinations of legal kinship used in intestacy laws in the same jurisdiction.
Temporary vs. Extended Incapacitation
Incapacitation can be caused by a number of factors. Some of these, such as unconsciousness due to general anesthesia or certain medications commonly used in pain management, are typically temporary, meaning that the individual may be incapacitated for a few hours to several days, but they are expected to eventually regain their full decision-making capacity.
Other causes, however, are associated with long-term and likely permanent incapacity. These causes are unfortunately often also associated with significant decisions regarding polarizing medical interventions and end-of-life care.
Implications of Estate Planning
The enormity of the potential decisions to be made and the weight of the responsibility to potentially be placed on the shoulders of an individual’s legal next of kin underscore the crucial importance of estate planning. The tools used in this area of law offer a number of legal mechanisms by which individuals may be able to convey their wishes and, crucially, name in advance the person or persons they would like to make their medical decisions and carry on the management of their affairs in the event of their own incapacitation.
Accidents Happen
Estate planning attorneys hear regularly from individuals in their golden years. Often personal milestones such as the approach of retirement, becoming eligible for benefits (such as Social Security or Medicare) based on age, or the deaths of former high school classmates can trigger an increased awareness of human mortality and lead a person who has not previously given much thought to estate planning to seek out an attorney and begin “putting their affairs in order.” People who are young and in the peak of health typically have fewer external reminders of their own fragility; death can seem a long way off, and estate planning feels less urgent as a result.
The reality, however, is that incapacitation is not necessarily a function of old age or progressive disease. Accidents that result in incapacitation certainly do not happen to everyone – but they can happen to anyone. While there are known risk factors for some diseases – such as the various forms of dementia – that often lead to incapacity, there is no reliable metric that assesses an individual’s risk of suffering an incapacitating accident. Once such an accident has occurred, it is too late to begin incapacity planning.
Estate Planning Documents for Incapacitation
Although no one can guarantee that they will be able to avoid accidents indefinitely, there are a number of estate planning tools individuals can put in place so that they and their loved ones are prepared, if an incapacitating accident does occur. A Florida attorney with Loughlin Law who appreciates the importance of estate planning that accounts for a broad range of contingencies may be able to help you evaluate the available options and select estate planning documents that make sense for your situation.
Durable Springing Power of Attorney
A power of attorney, or POA, is a legal document. The person who creates and signs this document is known as the “principal,” while the party on whom the document bestows the power to act on the principal’s behalf is called the “agent” or the “attorney-in-fact.” In some states, POAs are used for both financial and medical matters – but while few people with Florida estate planning law will be confused to hear of a medical POA, legally in this state the authorization to make medical decisions is known as a designation of health care surrogate, and power of attorney – as described in Chapter 709, Fla. Rev. Stat. (2024) – typically refers to the agent’s authorization to make financial or business decisions in the principal’s place.
If you are considering a power of attorney because you want to put plans in place in case of your own incapacitation, you will want to ensure that the power of attorney is durable, meaning that it remains in effect even if the principal (you) is declared to be medically incapacitated. If you do not want the power of attorney to take effect immediately, you will also want to include a “springing” clause, specifying that the agent is only authorized to conduct transactions on your behalf in the event of certain circumstances. The specific conditions that will cause your POA to “spring” into effect can be outlined in the document itself, but would commonly include a declaration of incapacity by a medical professional.
Designation of Health Care Surrogate
The declaration of health care surrogate does for medical decisions what the power of attorney does for financial matters. With a health care surrogacy designation executed under the terms specified by Fla. Rev. Stat. § 765.202 (2024), any legally competent Florida adult can name another person as their “proxy,” to make medical decisions on their behalf. Legally, without a valid designation in place, the decision-making authority will typically go to the incapacitated person’s next-of-kin – a designation determined not by shared history or bonds of affection, but generally by the same criteria used to identify legal heirs in proceedings for intestate succession. The person identified under Florida law as your legal next of kin may or may not be someone you trust, or even know; part of the importance of estate planning lies in the tools this area of law provides for helping individuals anticipate the possibility of this type of scenario and take proactive steps to control the variables they can.
Living Will
A living will is like a declaration of health care surrogate in that it plans for the emergency and end-of-life decisions that may arise in the context of an individual’s incapacitation. Unlike the health care proxy designation, however, a living will is addressed to an individual’s health care providers, and it directly expresses the person’s preferences regarding certain medical interventions and treatments that are commonly used in the final stages of a person’s life. In Florida the living will and the designation of health care proxy are often combined into a single document, as demonstrated by University of Florida Health.
Learn More From a Florida Estate Planning Lawyer
Incapacitation can happen to anyone, at any time. While there is no sure way to guard against all of life’s accidents, there are some plans you can put in place to prepare for their outcomes. At Loughlin Law, we understand the importance of estate planning for the events that occur while you are still alive – not just what happens to the property you leave behind after your death. Call 561-559-6214 today to schedule your personal consultation.
