By Osborne & Francis
November 25, 2022

When Should I Set Up Advance Directives?

Knowing that your affairs have been properly settled can give you and your family peace of mind. An advance directive can help you prepare for future medical challenges before they happen. 

Advance care planning is a difficult task. No one wants to think about the end of their life, life-threatening accidents, or debilitating illnesses. However, the fact of the matter is that disaster can strike at any moment. It is better for you and your family if you have taken the time to put measures into place that outline exactly what you want to happen if you are unable to make decisions for yourself. 

Creating an advance directive is one way that you can responsibly plan for the future. A common misconception is that advance directives are only for the elderly, or seriously ill. This could not be further from the truth. Everyone over the age of 18 can benefit from the existence of their own advance directive. It is best to put together an advance directive when you are of sound mind and body. 

The Flordia-based estate planning legal team at Osborne & Francis is here to help make sure your desires are known and followed should you become incapacitated. They know that writing an advance directive may be an emotional process. They are here to guide you with compassion to ensure that your wishes are carried out. Contact us online or by calling (561) 293-2600. Read on to learn more about advance directives and how they can benefit you.

What Is an Advance Directive? 

An advance directive is a legal document that outlines certain medical decisions if you are incapacitated. Incapacitated means that you do not have the cognitive or mental ability to care for yourself or to make decisions for yourself. 

The American Bar Association reports that less than one-third of adults have a power of attorney or a living will. If you fall into this category and become incapacitated it may be difficult for your family members to agree on your care plan and what medical treatments you would like to receive. 

Creating an advance directive is a relatively straightforward way to plan for the future. An advance directive may be beneficial: 

  • If you are injured or fall ill and are unable to communicate for yourself
  • If you begin to suffer from memory loss from diseases such as dementia
  • If your doctors determine that you are unable to make decisions for yourself 

If you do not have an advance directive in place, your family members and your doctors may not know what medical treatments you want to receive. Taking the time to create an advance directive before you fall ill or are injured is an important and responsible step in ensuring that your desires are carried out. 

What Are 3 Categories of Advance Directives? 

Advance directives are flexible documents. They can be as broad or narrow in scope as you need them to be. There are a few different types of advance directives to keep in mind when you begin estate planning. Advance directives will generally fall into three categories: the living will, power of attorney, and health care proxy:

  • Living will: A living will is a legal document used to state certain health care decisions. A living will is only used when a person is found to be incapacitated and cannot make decisions for themselves. Some instances where a living will may be used are: at the end of a person’s life, if a person is terminally ill, or if a person is permanently unconscious or otherwise incapacitated. 
  • Power of attorney: The power of attorney (POA) is a legal document that allows you to give another individual the power to make medical decisions for you if you are unable to speak for yourself. A POA gives the person you appoint the power to make certain decisions about your affairs. If you decide to create a POA you can limit what decisions that person can make as well as when their decision-making power would become effective. 
  • Health care proxy: One special type of POA is called a health care proxy. A health care proxy is an agent who is limited in their decision-making power and may only act in matters concerning medical treatments. 

It is also important to note that you have the authority to modify your advance directive. If your circumstances change, your insurance won’t cover certain treatments, or if you simply change your mind about the type of medical care you would like to receive you can always modify your advance directive. 

It is equally important to know that simply completing your advance directive is not enough. Your medical team needs to be aware of and understand your wishes. Your estate planning attorney can make sure that your doctors know about your advance directive and that, when the time comes, they act in accordance with your wishes.

If you would like to discuss living wills, health care proxies, power of attorney, or any other type of advance directive, the lawyers at Osborne & Francis are here for you. Contact them online or by calling (561) 293-2600.

What 3 Decisions Cannot be Made by a Legal Power of Attorney?

It is undeniable that your Power of Attorney will have a great deal of say over your interests. However, there are certain decisions that even your POA cannot make. Your POA cannot: 

  • Break their fiduciary promise to you or spend your money in a way that is not in your best interest 
  • Change your will or living will 
  • Make decisions for you after your death

Just as you can modify your advance directive, you can always change who you would like to act as your Power of Attorney. You may also limit the scope of your POA’s duties and spell out exactly what they can and cannot do. Additionally, the POA may be written so that it is effective at a future date, or at the occurrence of a future event. 

A POA is supposed to work for you. Consulting with an experienced estate planning lawyer is an important step in your estate planning process. The attorneys at Osborne & Francis will be able to help you create a binding POA that works within the boundaries that you want to set.

Important Fact: Your designated POA cannot transfer that decision-making power to someone else — they must be solely responsible once they agree to the arrangement, unless they themselves are incapacitated.

Can Family Override Advance Directives? 

Advance directives are legally recognized documents. If you have taken the time to create one in accordance with your state’s specific laws it will be viewed as legally valid. This means that your family cannot override the decisions you have outlined in your advance directive. Only you have the authority to modify your advance directive. 

Creating a legal document that spells out exactly what kind of medical care you would like to receive or who you would like to make decisions on your behalf, can give you peace of mind. Creating an advance directive also allows you to make thoughtful decisions and weigh many options. 

Additionally, even your most loving and supportive family members may not agree with your medical decisions. Or, in some instances, your family may share your beliefs but simply have no idea what you would choose for yourself. Therefore, it is important to take the time to establish an advance directive before you are ill. 

To ensure that your advance directive is legally binding it is always advisable to consult with an experienced attorney. Each state has specific laws that must be followed in order for your advance directive to be valid. The attorneys at Osborne & Francis are well-versed in Flordia law and will be able to help you create a legally binding advance directive. 

Contact an Estate Planning Attorney

To be effective, your advance directive needs to be established before you are incapacitated. Don’t wait to create your advance directives. An estate planning lawyer’s skill set extends beyond creating advance directives. They may also be able to help you navigate insurance disputes in the event that your medical needs are denied by your insurance company. They may also be able to help you navigate a patient abuse lawsuit and hold negligent care facilities accountable. 

The estate planning lawyers at Osborne & Francis will be able to help you navigate these difficult tasks with knowledge and compassion.

Contact the experienced estate planning attorneys at Osborne & Francies online or by calling (561) 293-2600. They are standing by to make sure your advance directives are legally binding and created with your best interest in mind.

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