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  • Health Care Surrogate and Power of Attorney Disagree?

    dispute between power of attorney and health care surrogate

    A durable power of attorney and a health care surrogate are two very important estate planning documents. Both documents allow other people to make decisions for you in the event you are unable to make decisions yourself. Because the individuals chosen will have to coordinate your care, it is important to pick two people who will get along and agree on the important decisions regarding your care and needs.

    What does a health care surrogate and power of attorney do?

    A power of attorney allows a person you appoint — your agent or “attorney-in-fact” — to act in your place for financial purposes when and if you ever become incapacitated. In Florida, a power of attorney actually goes into effect immediately when you sign the document. This means your agent or “attorney-in-fact” has the power to make financial decisions for you even if you are not incapacitated. For example, if you are travelling out of the country and need to sign a legal document in the U.S., your agent could sign on your behalf. A health care surrogate is a document that gives an agent the authority to make health care decisions for you if you are unable to communicate such decisions. In Florida, health care surrogates can have immediate authority to make medical decisions even if you have not been determined to be incapacitated by a doctor.

    While the health care surrogate is the one who makes the health care decisions, the person who holds the power of attorney is the one who needs to pay for the health care. If the two agents disagree, it can spell trouble. For example, suppose your health care agent decides that you need 24-hour care at home, but your power of attorney thinks a nursing home is the best option and refuses to pay for the at-home care. The court will help settle any disagreements, but this takes time and drains your resources in the process.

    The easiest way to avoid conflicts is to choose the same person to do both jobs. But this may not always be feasible — for example, perhaps the person you would choose as health care surrogate is not good with finances. If you pick different people for both roles, then you should think about picking two people who can get along and work together. You should also talk to both agents about your wishes for medical care so that they both understand what you want.

    If you have questions about whom to name for these roles, or you haven’t yet executed these all-important documents, give our office a call to schedule a complimentary consultation.