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Please beware! Legal v. Medical Powers.

What is a Durable Power of Attorney? Is it enough to make medical decisions?

First and foremost, a Durable Power of Attorney and a Health Care Power of Attorney (also known as Health Care Directive or Health Care Proxy) are two different documents.

A Durable Power of Attorney: This document lets you grant another person the authority to act as your LEGAL representative. Common powers granted by this document, among many others, are: authority to access your bank account, write checks, pay bills, contact the home insurance or mortgage company, rent, sale, or manage real estate or a business, communicate with governmental institution, sue or defend a lawsuit against you, and much more.

The term “durable” means that it does not have an expiration date on it and it is valid from the moment that it is signed.  You do not have to be incapacitated for the document to become valid. In fact, a document with such a provision is not valid in Florida.  The Durable Power of attorney is valid immediately and even after you are incapacitated. This is a very powerful document and must be safeguarded and precautions be taken to protect it because it can be used by the agent or person granted the authority immediately!

You can also grant only a specific authority to an agent and create a Specific Power of Attorney. For example, if you are selling your house and you will be traveling the day of the closing, you can leave a power of attorney to an agent to sign on your behalf. These powers are only for the specific purpose.

A Health Care Power of Attorney: This document gives a person the right to make MEDICAL decisions for you. In order for an agent under this health care power to make decisions for you, you must be legally incapacitated and unable to make the decision for yourself. For example, if you are unconscious after an accident and there is a need to decide what doctor, what procedure, what hospital, etc., the agent would have the right to make the decisions. However, if you have the legal capacity to decide, no one can decide for you regardless of being in possession of a Health Care Power of Attorney signed by you.

Note that a Health Care Power of Attorney is not a Living Will. Through a Living Will, you decide, in advance, your end of life decisions.

At Yahima Suarez, PA, we do not emphasize the documents as part of our planning for clients and we concentrate on the planning itself. There is a lot more to estate planning than just printing out a form online and signing it.  The contents, working and editing of those “forms” is essential so the documents reflect your intent and your wishes.
So we say that the documents are the product of the planning.

Planning your “estate” during life is more than just deciding who will inherit your home when you die, it is about protecting your health and your life first, protecting your loved ones if you are incapacitated for any period of time and protecting your assets — your income, your home, your business.  The second part of the planning is about leaving your assets and certainly, your legacy.

None of the documents above deal with the second part of the planning!

Make sure to understand the difference and do not rely solely on online information when creating your estate plan. Do yourself a favor and consult with an estate planning attorney and not a general practitioner.

Yahima Suarez, PA

The information herein contained shall not be construed as legal advice and should only be used for reference.  Please consult your specific case with an attorney. All cases are different!

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