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Advance Planning for Incapacity

Incapacity planning can ensure that your needs are met by the person you most trust, while avoiding the burden and expense of a guardianship.

  • Health Care Surrogate Designation: The Health Care Surrogate Designation allows you to ap­point a person who can make health care decisions for you if you were to become incapacitated. It is only usable when you are incapacitated, and helps to ensure that decisions about your health care are made by someone you trust.

  • Living Will: The Living Will allows you to state your choices about whether you want life-prolonging proce­dures in the event that you were ter­minally ill or in a vegetative state. It is only usable if:

    • You become too incapacitated to tell your doctors what you want, and
    • Your doctor and another consulting physician both agree there is no reasonable medical hope of recovery.

    With a Living Will in place, your wishes can be known and followed. A Living Will can help avoid a guardianship proceeding and family conflict.

  • Durable Power of Attorney: A properly drafted general Durable Power of Attorney al­lows you to name an agent who can handle your fi­nances, contracts, and assets on your behalf. Unlike the Health Care Surrogate Designation and Living Will, it usually is not restricted to times when you are incapacitated. It can be a helpful tool to avoid guardian­ship, but there are serious risks in granting a Power of Attorney, and the specific wording is important. You should consult with an attorney before signing or revoking any Power of Attorney.

  • Affidavit of Health Care Proxy: Under Florida law, if an incapacitated or developmentally disabled person has not named a Health Care Surrogate, certain people may be able to make health care deci­sions for that person. The scale of priority in­cludes the legal guardian, the spouse, the majority of children reasonably available, relatives, a close friend, and last, a trained social worker. The person highest on the priority scale (out of those willing to serve) can make an Affidavit of Health Care Proxy to notify health care providers. Although it is not a statutory document, it may facilitate the caregiver’s ability to help.