Two types of Power of Attorney:
1. Standard Power of Attorney
· A standard power of attorney document provides the authority for another person (the agent or attorney-in-fact) to make decisions and take actions on the principal’s (the person needing assistance) behalf when he or she is unable to do so.
· If the principal becomes physically incapacitated, then the power of attorney document would authorize the principal’s chosen agent or attorney-in-fact to; For example – sign documents, receive/pay bills, and make banking transactions on the principal’s behalf.
· A standard power of attorney would become invalid if the principal became mentally incapacitated.
2. Durable Power Of Attorney
· A Durable Power of Attorney document would authorize the principal’s chosen agent or attorney-in-fact to: For example – execute documents, receive/pay bills, and make banking transactions just like a Standard Power of Attorney, but would remain effective if the principal became mentally incapacitated.
· The Power of Attorney document can be drafted to be broad, giving the agent or attorney-in-fact the authority to make any and all property, financial, and personal decisions for the principal or can be drafted to authorize the agent or attorney-in-fact to perform very limited, specific duties.
· A guardianship is a legally binding relationship where a Probate Court authorizes a Court appointed Guardian (Professional or Family Member) to make all personal and/or financial decisions for the incapacitated person as determined by the Court.
· The Court could determine that the person only requires a Guardian to make decisions regarding his or her finances and property (Guardian of Property), or health and medical decisions (Guardian of Person), or both (Plenary Guardianship).
· The Probate Court decides on the extent of the person’s incapacity at a hearing.
. The hearing is to determine what rights the person should retain, if any, and what needs the person is able to meet for his or her health, safety, and well-being.
Power of Attorney v. Guardianship:
- Incapacity (Medical Status)
- The inability to make decisions that affect
personal health, welfare, and safety, as initially determined by the attending
physician, and if disputed, by a court.
- If a judge determines that someone is legally
incapacitated, the court has the authority to appoint a guardian to manage the
person’s property and ensure their daily needs are being met.
- Incompetency (Legal Finding)
- Incompetency is a finding by the court that an individual lacks the ability to make all decisions, including health care decisions and decisions about creating a health care proxy. A person is considered physically or mentally incapacitated.
- Incompetency can also refer to a lack of legal qualification of a person, not measured in terms of mental ability but to act. For example, a person deemed legally incompetent does not have the power to enter a legal contract.
When a Person Cannot Consent:
- Florida recognizes that the following
individuals (in particular order) may consent to medical treatment on behalf of
the incapacitated person:
- Surrogate (competent adult expressly designated by the patient/individual to make health care decisions on behalf of the patient). Designation should be in writing.
- Court Appointed Guardian (in the absence or a Surrogate, or where a court revokes the\ authority of the Surrogate). All persons who have been adjudged incompetent should have a judicially appointed guardian.
- A person holding a valid power of attorney (durable POA) which contains language giving the right to make health care decisions for a patient.
- A proxy (in the event the patient is incompetent or incapacitated) Pursuant to Section 765.401 a proxy may consent (where the patient has not executed an
advance directive, or designated a Surrogate to make health care decisions).
What is a Proxy?
- A substitute, competent decision maker in the
following order of priority:
- Patient’s spouse
- An adult child, or if the patient has more than 1 child, a majority of the adult children reasonably available for consultation.
- A parent of the patient
- The adult sibling of the patient (if more than 1, then a majority of such adult siblings)
- An adult relative of the patient who has exhibited special care and concern for the patient and maintained regular contact with the patient.
- A close friend of the patient
- A licensed clinical social worker (LCSW)
By: Julie DiSalvatore and Lory Smeltzer, MPH, CMC, CDP