What Is a Power of Attorney?
A power of attorney is a legal document that allows a person (the principal) to give another person (the agent) the legal authority to act on the principal's behalf. When the agent acts under a power of attorney, their actions are legally binding on the principal.
An agent is sometimes called an attorney in fact. Despite the terms power of attorney and attorney in fact, an agent does not need to be a lawyer. You can give your agent broad powers or limited powers. Florida has several types of powers of attorney, and a similar document for health care decisions called a designation of health care surrogate.
What Is a Medical Power of Attorney Called in Florida?
In Florida, there are four primary ways for someone else to make health care decisions for you.
Designation of a Health Care Surrogate
Florida law is a little bit different than most states. Other states have a document called a medical power of attorney or health care power of attorney, but Florida has the designation of a health care surrogate. It is the equivalent of a power of attorney, but it is only used for health care. The patient is the principal, and the agent for health care is called a surrogate.
A designation of a health care surrogate allows you to appoint a surrogate to make health care decisions and receive health information for you. You can state whether the surrogate's authority begins immediately or only when you become incapacitated.
You also can designate a health care surrogate for your minor child. This is a good way to ensure your child's health care needs are met if you will not be able to care for your child for a lengthy time.
Your surrogate will be able to consent to mental health treatment unless you designate a separate surrogate for mental health treatment or state that your surrogate does not have authority to make mental health care decisions.
The designation of a health care surrogate is different from a living will. A living will allows you to tell physicians what life-sustaining measures you want when you have an irreversible and terminal condition.
Power of Attorney
To delegate health care decisions in most states, a principal must use a medical power of attorney and cannot use a financial power of attorney. Florida is the exception to this general rule.
Although Florida has the designation of a health care surrogate form, a principal also can use a power of attorney to delegate both financial and health care decision-making authority. However, the designation of a health care surrogate is a better choice for delegating health care authority for two reasons:
- Hospitals and physicians are more familiar with designations of a health care surrogate and more likely to accept them without questions or delay
- If you only want someone to have authority when you are incapacitated, you must use the designation of a health care surrogate
Guardian
If you do not have a power of attorney or designation of health care surrogate, then either a proxy or a guardian will make decisions about your health care.
A court can appoint a guardian to manage an incapacitated or incompetent person's property, finances, and health care. If someone has a guardian and has not designated a surrogate, then the guardian will make health care decisions for the patient.
Health Care Proxy
A proxy is a person who is authorized by Florida law to make health care decisions for an incapacitated patient who does not have a surrogate or agent for health care decisions. Under Florida law, a proxy can make decisions without requiring a court's involvement. The following people can serve as proxy in order of priority:
- A previously appointed guardian who has authority to consent to medical treatment
- A spouse
- An adult child (or a majority of the adult children who are reasonably available)
- A parent
- An adult sibling (or a majority of the adult siblings who are reasonably available)
- An adult relative of the patient
- A close friend of the patient
- A licensed clinical social worker selected by the health care provider's bioethics committee
How To Get a Florida Power of Attorney
You can hire an attorney to make a power of attorney, or you can make one yourself using one of the power of attorney forms we offer for Florida. The Florida Health Care Surrogate Act also contains suggested form language for a designation of a health care surrogate.
When making a power of attorney, you should follow these steps:
1. Decide what powers you want to give your agent
Think about why you want a power of attorney. Some questions to ask yourself are:
- Do you want someone to make health care decisions for you only when you are incapacitated?
- Do you need someone to have broad powers to manage your finances and property?
- Do you want someone to handle a specific business transaction for you?
- Do you want your agent's authority to stay effective or terminate when you are incapacitated?
After you answer these questions, review the types of powers of attorney discussed below to see which ones meet your needs.
2. Pick your agent and surrogate
Your agent under your power of attorney and your health care surrogate should be people you trust to make decisions in your best interests.
You can choose different people or the same people to fill these roles. You also can create multiple powers of attorneys with different agents. For example, you might create a power of attorney for a friend to sell your car and another power of attorney for an adult child to use your bank account on your behalf.
You can designate two or more people as co-agents in the same power of attorney. If you select co-agents, they can act independently without the other agents' agreement unless your power of attorney states otherwise.
You should always pick successor agents and surrogates in case your first choice is unable, unavailable, or unwilling to serve. Before you designate an agent or surrogate (or their successors), let them know you are listing them and ensure they are willing to serve.
3. Fill out your form and sign it with the correct number of witnesses
When filling out your form, make sure you clearly list the powers you want your agent to have.
In Florida, you need two adult witnesses to sign both a power of attorney and a designation of a health care surrogate. A notary public also must acknowledge and sign a power of attorney (the notary can be one of your two witnesses).
The surrogate cannot be a witness to a designation of a health care surrogate, and at least one of the witnesses cannot be your spouse or relative.
Although the law does not prohibit your agent from being a witness, it is wise not to use your agent in case there is a question about the validity of your agent's authority.
4. Deliver your power of attorney or designation of a health care surrogate to the necessary people
You should give your agent and surrogate a copy of your power of attorney or designation of a health care surrogate.
For a power of attorney, you can also give copies to any people or businesses that your agent might deal with on your behalf. This is not a legal requirement, but receiving the power of attorney directly from you might help put other people at ease.
You also should provide a copy of your designation of a health care surrogate to your primary physician and any hospitals or health care facilities where you will receive treatment.
