Many people rely on estate planning to establish how they would like their assets to be distributed after passing away. But part of creating an effective plan also involves expressing desires about future medical care and end-of-life preferences and decisions.
A healthcare surrogate designation is a legal document that establishes who you, the principal, would like to appoint as your “surrogate” if incapacity – when physical or mental limitations prevent you from managing your own affairs – were to occur.
Here are a few things to consider before executing a healthcare surrogate designation.
What are the duties of your healthcare surrogate?
The duties include a variety of roles, some of which may include:
- Consulting physicians and healthcare providers to establish proper medical treatment or end of life treatment;
- Provide informed consent during needed medical intervention;
- Apply for public healthcare benefits on your behalf; and
- Manage admittance to healthcare facilities, like nursing homes, outpatient centers, and more.
What is the difference between a power of attorney and a healthcare surrogate?
Although similar in certain regards, a power of attorney and healthcare surrogate differ in important ways.
A durable power of attorney is a legal document that grants an individual the authority to make financial decisions on your behalf.
On the other hand, a healthcare surrogate would only have the ability to make decisions on behalf of an individual for medical purposes, which may involve care and treatment.
Can I revoke a healthcare surrogate designation?
You may be able to remove a healthcare surrogate if you have proper decision-making capacity.
Florida statutes, for example, suggest that the amendment or revocation of the designation can be verbal or in writing. It is not clear, however, what extent of capacity is needed to remove the surrogate.
Depending on each individual situation, the Court may need to determine if the grantor’s level of capacity is sufficient to proceed with the revocation.
If the principal does lack capacity, however, an interested person – which could include family members, the healthcare facility, or the primary physician – may still seek to review or remove the surrogate if:
- The surrogate’s decision is not in accord with the patient’s known desires or the statutes;
- The designation is ambiguous or the patient has changed his or her mind after execution of the designation;
- The surrogate was improperly designated or appointed, or the designation of the surrogate is no longer effective or has been revoked;
- The surrogate has failed to discharge duties, or incapacity or illness renders the surrogate or proxy incapable of discharging duties;
- The surrogate has abused his or her powers; or
- The patient has sufficient capacity to make his or her own health care decisions.
Who can I choose to be a healthcare surrogate?
Any competent individual who is at least 18 years old can be selected. You may also consider selecting a second person as an alternate, in case your first choice is unavailable, unwilling, or unable to make decisions on your behalf.
How to designate a healthcare surrogate?
Once you’ve determined who you’d like to appoint as your healthcare surrogate, you should consider if there are any specific stipulations you’d to be followed or upheld regarding your medical care preferences.
Since every state has laws that govern health care surrogacy, it is important that you consult qualified attorneys like those at Mendez and Mendez Law. Doing so will ensure that your designation is drafted in an effective and valid manner, so that issues are minimized or avoided when the power is invoked.
In Florida, for example, the document establishing the authority would need to be signed by two witnesses, one of which cannot be the surrogate.
It is very important that you incorporate future health care considerations into your estate planning. Doing so ensures that you appoint individuals you trust to make medical decisions on your behalf in the future if incapacity were to occur.
Our team of estate-planning experts at Mendez and Mendez Law are eager to work with you and establish a plan that best serves your preferences and needs.