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Incapacity Planning 

Planning for your incapacity is not something you want to think about, but the reality is that everyone becomes incapacitated at one time or another. You may become incapacitated from old age, mental illness or even a car crash. If you become incapacitated and cannot make financial or medical related decisions by yourself, you run the risk of forcing your family to file for guardianship of you in the court system. Guardianship can become costly and lengthy, but can be avoided very simply by executing incapacity planning documents.

Incapacity planning consists of three main documents: declaration of health care surrogate (or health care directive), living will, and durable power of attorney. The declaration of health care surrogate appoints one or more surrogates to make health care related decisions for you in the event you become incapacitated and are unable to make such decisions for yourself. This includes: hiring and firing medical aids, admitting you into a nursing home or hospital, checking you out of a nursing home or hospital, requesting government benefits on your behalf, etc. The living will is also known as the “pull the plug” doctrine and details certain artificial measures you want or do not want to be used in the event you are in a vegetative state, terminal condition or end stage condition.

The durable power of attorney is a document that appoints agents who have the authority to make financial related decisions on your behalf when you cannot do so yourself. Florida does not allow the power of attorney to be springing (or effective only at incapacity), therefore, it is important to choose your agents wisely and safeguard your durable power of attorney document. Further, Florida changed their durable power of attorney statute in 2011; therefore documents executed prior to that date might have to be revised as they may not comply with the new statute’s requirements.

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