What is the Difference between an Advance Directive and a Medical Power of Attorney?

Advance directive forms for Power of Attorney, Living Will, and Medical Power of Attorney sit on a desk with a pen and gavel.

What Is The Difference Between An Advance Directive And A Medical Power Of Attorney?

When people think of estate planning, many think of planning for their eventual death: making funeral and burial arrangements, writing a Last Will and Testament, and funding trusts. While this is one important aspect of estate planning, there is a second, equally important part: advance care planning. As you age, there is always a possibility that you could become so ill or injured that you are unable to tell healthcare providers or family what your wishes are. This is when having an advance directive or Medical Power of Attorney is useful. What is the difference between these documents and which one should you have? If you have questions or need assistance with advance care planning, one of our experienced Florida estate planning attorneys with Loughlin Law, P.A. may be able to assist you. Call (561) 677-8384 to schedule a free consultation and review your circumstances.

What Is an Advance Directive?

An advance directive is a written document that details an individual’s wishes regarding their medical treatment. This document helps to ensure the person’s wishes are carried out even though they are unable to communicate those wishes themselves. Most advance directives only go into effect if the individual cannot communicate their own wishes, allowing the person to continue to make their own decisions until it is no longer possible. These types of documents are filled out in advance of the need to use them, often as part of planning for incapacity.

According to Florida Medical Center, Florida recognizes four types of advance directives: Living Will, Medical Power of Attorney, Out-of-Hospital Do Not Resuscitate, and Declaration for Mental Health Treatment. Of these, the two most commonly used ones are the Living Will and Medical Power of Attorney.

What Is a Medical Power of Attorney?

A Medical Power of Attorney is one type of advance directive. Florida calls it Designation of Health Care Surrogate, and some people also refer to it as Power of Attorney for Health Care. Whichever name is applied to it, this document allows individuals, called the principal per the Florida Bar, to name a person to be responsible for carrying out their health care wishes when the principal is unable to speak for themselves. This is a legal document that allows someone the individual trusts, sometimes called their attorney-in-fact or agent, to make medical decisions on their behalf, which makes it very important that the principal speaks to the person they want to name as their agent to ensure that person is comfortable with the responsibility.

A person who is given Medical Power of Attorney over another person must make decisions in accordance with that person’s Living Will, if they have one. If they do not have one, the attorney-in-fact must make decisions based on what they believe the principal would want and what they believe to be in the best interest of the principal. Individuals granting someone this authority may want to consider a Living Will, or expressing verbally or through a video what their wishes are to ensure their attorney-in-fact understands the decisions they should make on their behalf. Additionally, it is important to make sure this Designation of Health Care Surrogate is durable so that it is clear that it should continue when the principal is incapacitated.

What Decisions Can a Medical Power of Attorney Make?

When an individual grants someone Medical Power of Attorney or Power of Attorney for Health Care, they are giving that person a significant amount of authority. When the principal becomes incapacitated, the agent can decide which facility they go to or which doctors they see, which tests should or should not be done, if or when the principal has surgery, which drug or other treatments they should get, whether to extend life or control comfort, and when to discontinue life support.

The agent cannot make any decisions until or unless the principal is too ill to speak for themselves. The agent must also make decisions in alignment with the principal’s wishes, or with what they believe is in the principal’s best interests if they do not know what those wishes are. Additionally, they cannot make a decision if the principal disagrees with it. For example, if the principal is unconscious and the agent decides they should not have a surgery the doctor suggests, but the principal regains consciousness and wants the surgery, the agent cannot override that decision.

What Other Advance Directives Should I Put in Place?

A Medical Power of Attorney is just one type of advance directive. There are three other types that Florida recognizes and that can assist an agent with power of attorney in making their decisions. A skilled estate planning attorney with Loughlin Law, P.A. may be able to assist you in choosing which directives you need and completing them properly.

Living Will

This document allows the individual to make important decisions ahead of time about the care they want to receive. This can include instructing their doctor not to use artificial means of keeping them alive if they are terminally ill. A Living Will also allows them to indicate things such as what drugs or treatments they do or do not want, whether they wish to be intubated, surgeries or other living-saving measures they do or do not want, whether they want to receive artificial hydration and nutrition, and other specific details. The person granted Medical Power of Attorney will make decisions based on this document if there is one. This document only becomes effective after the individual has been diagnosed with a terminal or irreversible condition.

Out-of-Hospital Do Not Resuscitate

This document refuses certain life-sustaining treatments an individual might otherwise receive in any setting outside of a hospital. This can include home health care, hospice, nursing homes, ambulances, and hospital emergency rooms. This form must be issued by the individual’s attending physician, as it is a doctor’s order to withhold lifesaving measures. The Florida Department of Health offers the form for downloading and printing, but it must be printed on yellow paper for Emergency Medical Services (EMS) or medical personnel to honor it.

If the individual is hospitalized, an order not to resuscitate them can be placed in their hospital chart. This will inform all medical staff of the individual’s wishes. The Out-of-Hospital Do Not Resuscitate form is for individuals who are facing a terminal diagnosis but do not need or want to be in the hospital. This allows them to have a natural death at home or in another location other than a hospital.

Declaration for Mental Health Treatment

A Declaration for Mental Health Treatment (DMHT) allows the individual to tell health care providers their choices for mental health treatment if they are incapacitated. This document allows the individual to name a mental health care surrogate to make decisions on their behalf. The individual can also indicate their treatment wishes, such as which facility they would prefer to be in, which doctors they do or do not wish to be treated by, medications they are or are not willing to take (including whether the medication should be pill, liquid, or injection), and other treatments they are or are not willing to have, such as seclusion, physical restraints, or Electroconvulsive Therapy (ECT).

A DMHT remains effective for three years, after which time individuals would need to complete a new DMHT. However, if on the date the DMHT expires, the individual is incapacitated, it continues to remain in effect until the individual is able to make their own decisions again.

How an Estate Planning Attorney Can Assist You With Advance Care Planning

An advance directive, particularly a Medical Power of Attorney, can be a beneficial document as part of your advance care planning. With the assistance of your physician and an attorney, you can create an advance care plan with the documents you need as part of your estate plan. This will make a stressful time much easier on your loved ones if you are ever incapacitated and unable to tell them what your wishes are. If you are ready to get advance directives in place or have other estate planning questions, contact Loughlin Law, P.A. at (561) 677-8384 to schedule a consultation with one of our skilled Boca Raton estate planning attorneys.

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