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What is a Living Will, Health Care Proxy, and Power of Attorney?

The purpose of this article is to discuss some of the most common documents that are part of a proper estate plan. These documents include a living will, health care proxy and power of attorney.

The Living Will is a written document where an individual states that he or she does not want any life prolonging procedures when the application of such procedures would serve only to prolong artificially the process of dying. Such treatment and procedures would only be withheld when the principal is incapacitated, has a terminal or end stage condition, or is in a persistent vegetative state, and the person’s treating physician and a consulting physician have determined there is no reasonable medical probability of recovery. The “Life-Prolonging Procedure Act of Florida” is found in Florida Statutes 765.301 – 309.

The Health Care Proxy is where a person designates a surrogate who has the authority to make health care decisions for the person when he or she is unable to make such decisions. Florida Statutes 765.201-205 provide such a procedure. The surrogate only has authority to make such decisions for the principal when the principal has been determined to be incapacitated. Incapacity in such situations is to be determined by the attending physician, or in conjunction with another physician.

The Power of Attorney is a legal document that gives a designated individual the ability to act on the behalf of the “principal.” The principal is the person that creates the power of attorney. An “attorney-in-fact” or “agent” is the person who receives the power of attorney. An attorney-in-fact does not have to be a lawyer and is usually a family member or close friend.

A person signing a power of attorney must be competent at the time of signing and the authority ends at death. A power of attorney is effective on the date that it is signed unless otherwise stated within the document. The authority of the attorney-in-fact can be broad allowing for a full range of acts or be very specific and only allow a limited number of actions to be performed such as bank transactions or the selling of property.