A power of attorney allows one person to perform legal acts on behalf of another. In a medical power of attorney, the principal (often a seriously ill patient) authorizes an agent to make medical decisions on his behalf. Florida law governing power of attorney contains some distinctive features.
Creation and Durability
Effective October 1, 2011, a Florida power of attorney must be evidenced by a written document signed by the principal and two witnesses, and the principal must have his signature notarized. The document must detail the powers granted by the principal. A durable power of attorney, often used for medical purposes, continues in effect even if the principal becomes unconscious, mentally incapacitated or is unable to communicate. A non-durable power of attorney automatically expires under these circumstances. Under Florida law, a power of attorney is considered non-durable unless the wording of the document clearly indicates that it is durable.
To use his power of attorney, the agent should present the form to the third party he is dealing with -- in this case a physician or health care provider. The third party has no legal obligation, however, to honor it. The third party may require the agent to sign an affidavit that his use of his authority is proper or require another form of assurance from the agent. The agent should sign any documents using his own name "as attorney-in-fact for [name of principal]." The agent must act strictly within the limits of his authority as specified in the form.
Typical powers granted by a medical power of attorney include the power to consent to medical treatment, the power to refuse treatment for medical reasons, the power to terminate treatment and the power to choose among alternative treatments. The agent may also be authorized to take legal action to force compliance with his directives -- by seeking a court order to force termination of life-sustaining treatment, for example -- and use the principal's assets to pay legal expenses.
A power of attorney may be terminated in three ways -- the death of the principal, natural expiration (if the form specifies the duration of the agent's authority) and early revocation by the principal. A principal may not revoke a power of attorney if he is mentally incompetent. When a power of attorney is revoked it is important that the principal request that all copies be returned to him by the attorney in fact so the attorney in fact can no longer present the document to act on the principal's behalf.
Filing a Lawsuit
Anyone who can show an interest in the principal's welfare has the right to file a lawsuit concerning a medical power of attorney. Such people include the principal himself, the agent, a legal guardian or a governmental agency with appropriate regulatory powers. Florida courts are entitled to interpret the wording of a power of attorney, review the agent's conduct, assess damages against him and remove the agent.
Health Care Surrogate Designation
Florida law allows for a health care surrogate designation, similar to a power of attorney, that allows the principal to designate someone else to make medical decisions on his behalf. Unlike a durable power of attorney, it does not allow the health care surrogate to make health care decisions on behalf of the principal until the principal loses the capacity to make them on his own. This means that a durable power of attorney is more appropriate if the principal has lost only some of his capacity to make decisions. A health care surrogate cannot make financial decisions on behalf of the principal.
References & Resources
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