Planning for Incapacity

What is a Durable Power of Attorney?

Who can establish a Power of Attorney?

Who may act as an agent under a Power of Attorney?

What is a Durable Power of Attorney for Health Care?

What is a Living Will?

What is a HIPAA Authorization?

Q: What is a Durable Power of Attorney?


A Durable Power of Attorney is a written document that enables you (as a Principal) to give power to an agent or attorney-in-fact, such as a spouse or relative, to act on your behalf when you can no longer do so. One of the major difference between a Durable Power of Attorney and a regular Power of Attorney is whether the powers remain effect after the onset of the disability. A Durable Power of Attorney will continue to be effective even after you should become disabled. Families are advised to prepare this legal document while a loved one is still competent and “of sound mind”. Failure to do so will result in a court-appointed guardian or person to make decisions for you when you are incapacitated.

When deciding to draft a Durable Power of Attorney, one should consider the two common types. One of these is often referred to as a “present” durable power of attorney. A “present” durable power of attorney becomes effective immediately. Thus, once enacted it grants your chosen agent unlimited control over your property and other legal matters. The second type is known as a “springing” durable power of attorney. A Spring Power of Attorney essentially allows an agent to act only when a specified event has taken place. Such an event can be a doctor deeming you as incapacitated and/or incompetent.  It is advisable that you appoint a trusted physician, such as your personal doctor, as the person authorized to assess your health and mental well-being. However, it recommended that you designate more than one doctor since unexpected life events may occur, and you personal physician may not be available when you are in need of him/her.

There are a number of benefits that come with a Durable Power of Attorney. It is an inexpensive way to allow a designated person or persons to make financial or legal decisions on your behalf. Furthermore, unlike joint bank accounts, a durable power of attorney allows you transfer decision-making power without hurting your estate plan. It is imperative that you carefully select your attorney-in-fact (this person does not need to be an attorney) because this person will have broad authority and control.

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Q: Who can establish a Power of Attorney?


Any competent adult can sign for a Durable Power of Attorney and may possibly have to do so in the presence of doctors and witnesses to ensure their competency.

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Q: Who may act as an agent under a Power of Attorney?


An agent or “attorney-in-fact” can be designated to act on your behalf under a Power of Attorney. An attorney-in-fact may be your spouse, a close relative or sibling. Ideally a trusted adult would be the best choice for an agent or attorney-in-fact. You are allowed to assign more than one person as an agent, and in fact, it is recommended that you do so, in order to prepare for unexpected events that may prohibit your first choice from acting on your behalf. However, when doing so, it is advised to nominate one individual as the primary agent and designate any other persons as alternate agents should your primary agent be unavailable. This also minimizes possible conflict that may result from having more than one nominated attorney-in-fact simultaneously.

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Q: What is a Durable Power of Attorney for Health Care?


A Durable Power of Attorney for Health Care is a document that designates an agent to make health care decisions when an individual can no longer do so. This document essential appoints a person to act as an “attorney-in-fact” and make decision regarding all health care treatment, including the termination of said treatment and the decision to remove the individual from life support. You may decide to appoint a close relative, friend or family member to act as your attorney-in-fact or agent. This can be achieved by preparing a Durable Power of Attorney for Health Care.  This legal document allows you to specify the amount of control you want your agent to have. For example, you may decide that you only want your sibling to make treatment decisions but not matters of life or death. Furthermore, you may also outline specific instructions for your agent to follow.

You may decide to make your Durable Power of Attorney for Health Care effective immediately in order to give your health care agent to manage your medical care immediately. Making this legal document effective immediately will not give your agent the power to override your wishes. As long as you are competent enough to do so, you will be able to dictate your own medical care. When the day you are no longer able to make your own decisions, your agent must act according to the instructions outlined in your Durable Power of Attorney.

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Q: What is a Living Will?


A Living Will is a legal document that outlines the medical care you want and don’t want to take place when you become incompetent or incapacitated for whatever reason.  If you are no longer capable of making decisions regarding your medical treatment, a living will spell of your medical preferences. This health care declaration can include your specific instructions regarding whether or not to continue medical procedures such as: life-prolonging medical care (CPR,  dialysis, respirator, and surgery), food and water (you may decide against the use of IV feeding and fluids while comatose, near death or terminally ill), and pain care (even you choose to die naturally, you may still choose to alleviate pain and discomfort). A Living Will can help you rest assured that only the medical treatment and care you desire is performed.


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Q: What is a HIPAA Authorization?


The Health Insurance Portability and Accountability Act (HIPPA) is a policy that was established in 1996. This federal law was enacted in order to protect patients’ confidential information, such as medical records, from being released. However, the HIPPA did not simply withhold medical information from insurance companies, it also prohibited access to spouses, children and  parents. Although it is important to protect your health information from certain agencies, you may not want to privy loved ones from this information. Therefore, it is crucial to sign an HIPAA Authorization Form in addition to the HIPPA. This authorization form is your signed permission to allow the disclosure of your personal health information specific individuals, such as a parent or spouse. The HIPAA Authorization Form can give your Agents, Successor Trustees the authority to be informed of your health information if you should choose to as well.

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David F. Anderson attorney at law located in Miami, Florida specializes in long term care, Condominium law, Medicaid planning, Corporate structures, Residential real estate, Asset protection, Commercial real estate, Family law, Title insurance, Bankruptcy, Mortgage law, Association Law throughout Dade County, FL and the surrounding area

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