When a loved one suffers a serious accident or cognitive decline and cannot care for themselves, families must make important decisions on behalf of the person. Incapacity planning allows your voice to be heard when you cannot advocate for yourself. Reduce your family’s stress over determining your health care, finances, or living arrangements. Legal safeguards, put in place by the estate planning attorneys at Loughlin Law, P.A., can protect you when you cannot protect yourself. Call (561) 677-8384 today to learn more.
Determining Incapacity in Florida
Simply put, incapacity is a condition in which an individual can no longer make sound decisions for themselves. It happens because of cognitive decline for people with dementia, or it can happen suddenly, such as after a terrible vehicle accident. Regardless of how, the effect is the same — the person’s reasoning, communication, or even consciousness is compromised.
For legal purposes, incapacity is determined by a judge in an incapacity hearing or guardianship hearing. Evidence for the judge’s decision includes results from the incapacitated person’s exam by a qualified physician.
Guardianship and Incapacity
An incapacitated person requires another to make decisions on his or her behalf, such as which memory care home to place the person in, how to handle the person’s finances, or who will succeed the person in a family-run business. In Florida, this may be either a guardian, a conservator, or both, called a plenary guardian.
A conservator is a court-appointed representative in charge of the incapacitated person’s financial matters, such as paying for medical care and housing or handling investments. A guardian makes health treatment and personal care decisions for the person on matters such as life support termination and which hospital the incapacitated person goes to.
A guardianship or conservatorship hearing is where a judge appoints one person to act on behalf of the incapacitated person (referred to as the “ward”). The family petitioning for guardianship presents evidence of the ward’s inability to advocate for themselves. An attorney ad litem represents the ward. At the hearing’s conclusion, the judge determines who, if anyone, will represent the incapacitated person going forward.
Responsibilities of a Guardian and Conservator in Florida
Guardianship or conservatorship significantly limits an individual’s agency, so Florida laws are understandably strict about the cases in which a guardian or conservator could be established.
The Role of a Florida Guardian
Guardians in Florida act on behalf of personal considerations for an incapacitated person. The guardian makes decisions about:
- Which doctor the ward sees.
- The ward’s course of medical treatment.
- Potential social situations the ward is in or persons they may or may not see.
- Whether the ward requires in-home caregiver services or which nursing home facility the ward will live in.
- Whether to take the ward off life support.
Without your express wishes for whom you prefer as a guardian, a Florida judge may name whomever they believe can best make life-changing decisions for you. You can protect yourself through incapacity planning services from Loughlin Law’s estate planning attorneys.
The Role of a Florida Conservator
Conservators make financial decisions on behalf of the ward. If this is not the same person as the ward’s guardian, then these two may need to work in concert to ensure the decisions the guardian makes can be paid for from the ward’s estate.
A conservator has rights over the ward’s property management and may make decisions such as:
- Which property to sell, and for how much.
- How the ward’s investment accounts are managed.
- Enrolling the ward in public benefits like Medicaid.
- Signing contracts.
Any decisions specifically related to property, finances, or property management fall under the purview of the conservator.
Preparing for Incapacity With the Right Estate Plan
If asked, you could probably name a couple of people you trust to faithfully manage your affairs, both financial and personal. Without the right estate planning documents in place, though, your wishes may not be considered. Simply telling someone you want them to be a guardian for you if you develop Alzheimer’s disease or are in a coma may not be enough.
An advanced directive lawyer drafts a durable power of attorney (POA) and a health care power of attorney document. These named individuals represent your interests should you become unable to. Your estate planning lawyer can also draft a living will specifically outlining your health care wishes — including life support decisions — for your health care POA to use as a basis for his or her decisions. To get a better understanding of power of attorney and living wills, see Living Will Vs. Power of Attorney: What’s the Difference?
Advanced Directives and Power of Attorney
Your Florida estate planning lawyer creates three essential elements for your incapacity planning. These are legal documents your loved ones can present to a judge in a guardianship or conservator hearing or to help them act on your behalf.
Durable Power of Attorney
Someone with a power of attorney is authorized to make financial decisions if you cannot communicate your wishes or are deemed medically unfit. Durable POAs go into effect in the event of your incapacitation. This differs from a standard POA, which expires should you become incapacitated.
Health Care Power of Attorney
A health care surrogate, or health care POA, makes medical decisions should you become unable to. This covers everything from intubation, life support, and blood transfusions to the medications you are given or medical procedures performed. A health care POA must also be durable to protect you in the event of incapacitation.
An advanced directive is also referred to as a “living will.” It clarifies your preferences for medical treatment and is drafted while you’re competent and healthy. You can establish your limits for life support and define which treatments you wish to decline or accept, and you can include a do-not-resuscitate (DNR) order.
After your estate planning lawyer completes your advanced directive, send copies to your primary care doctor and your health care POA. Keep a copy for your records as well. Adding an information card to your wallet can help first responders make the right decisions in an emergency or direct someone to where to find your advanced directive in your home.
Florida Estate Planning Attorneys Help Protect Your Rights
The best time to prepare for incapacity is when you are able to make decisions for yourself. The experienced Florida estate planning lawyers at Loughlin Law, P.A. prepare legal protections suited to your personal and financial situation to ensure your wishes are honored even if you cannot make decisions for yourself. Contact us today at (561) 677-8384 to get started — you never know what tomorrow may bring.