types of Power of Attorney:
Power of Attorney
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.
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,
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.
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.
- Florida recognizes that the following
individuals (in particular order) may consent to medical treatment on behalf of
the incapacitated person:
(competent adult expressly designated by the patient/individual to make health
care decisions on behalf of the patient). Designation should be in writing.
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.
person holding a valid power of attorney (durable POA) which contains language
giving the right to make health care decisions for a patient.
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).
is a Proxy?
- A substitute, competent decision maker in the
following order of priority:
adult child, or if the patient has more than 1 child, a majority of the adult
children reasonably available for consultation.
parent of the patient
adult sibling of the patient (if more than 1, then a majority of such adult
adult relative of the patient who has exhibited special care and concern for
the patient and maintained regular contact with the patient.
close friend of the patient
licensed clinical social worker (LCSW)