What is planning for Incapacity?
Planning for Incapacity is a thoughtful review of your life situation and who you can depend on when you become ill and perhaps no longer able to manage your own affairs. Planning for Incapacity is also a process of thinking about your living situation and if modifications may need to be done to allow you to stay in your home.
It is also the review and formally naming those individuals to roles of making health care decisions and financial decisions so that when - and if - the time comes that you need assistance, your team of friends and family know what role they are playing to
restore you back to health, or in making you safe in a long-term care situation. These discussions are not easy, but they are necessary as we are living longer, and our families may not be geographically close to us to be able to help.
To avoid the involvement of the State of Florida in your affairs, you should have "documents of incapacity" prepared in advance of need as part of your estate planning or planning for long-term care planning as part of an elder law review for the protection of your assets. We believe that it is important to think about many options, as well as many people who can be of assistance while developing your plan. The person you most want to be involved in your care may not be available or willing to serve at that time because of their own unforeseen life issues. That's why it is so important to think about contingency planning and developing multiple alternatives for when an unexpected illness or injury comes your way. At the very minimum, we believe that every person should think about at least three alternatives to develop a plan for incapacity.
We also believe that everyone deserves and should have the following documents as part of their plan for incapacity:
A Durable Power of Attorney, so your desired agent will be authorized to use your resources to take care of you.
A Designation of a Healthcare Surrogate with the appropriate language that your health care fiduciary may have the legal authority to receive information about your condition, as well as be authorized to make decisions when you aren't able to express yourself.
A Living Will is your expression of what types of medical treatment would you want at the end of your life. In this case, your health care fiduciary is authorized to enforce your wishes so that you are not subjected to medical treatments that may not help or extend your life when there is no chance of recovery.
We also believe that it is critical that everyone puts their wishes in writing and communicates their wishes as to what they would want. We have Advance Medical Directive planning tools that can help you work through these health issues under various "quality of life" situations so that your health care surrogate and fiduciary can act appropriately if the need arises.
What happens if I don't plan for incapacity?
If you do not make the necessary plans for incapacity before the time of need, our laws provide a court-supervised process called Guardianship. Guardianships are set up to protect and help people in need, such as an elder or loved one unable to care for their financial or health-related well-being. It is best if planning can be done in advance to avoid this emotionally difficult process, and it is best to execute a Declaration Naming a Preneed Guardian for the Declarant to avoid the issue or guardianship. The requirements for a Declaration Naming a Preneed Guardian are found in Fla Statute 744.3045.
If you ever end up in the guardianship court, a judge will ultimately decide who will act as your Guardian. Your financial and health care powers of attorney are designed to keep you out of the guardianship court. Still, these documents are usually suspended at the early stages of determining incapacity, as allowed by Fla. Statute 744.3115.
In the State of Florida, a Declaration Naming a Preneed Guardian for the Declarant is a document that allows you to recommend a person to serve as "Guardian of your Person" and as "Guardian of your Property" in the event you become mentally or physically disabled and the Court deems you that you no longer can manage your affairs.
Together with your other documents for planning for incapacity, they create a "least restrictive alternative" to the formal Guardian proceedings and "constitute a rebuttable presumption that the preneed guardian is entitled to serve as guardian."
Give us a call. We can help.
Give us a call. We can help.
Law Office of Shawn C. Newman, P.A.
710 Northeast 26th Street
Wilton Manors, FL 33305-1238
Phone: (954) 563-9160
Serving all of the greater Fort Lauderdale area and Broward, Palm Beach, and Miami-Dade counties in Southern Florida.
