“My Dad has advanced dementia, can you prepare documents quickly so I can make medical and financial decisions for him?”
This is another common question with a disappointing answer. The answer is no, I cannot prepare any documents once a person no longer has capacity. The way capacity is measured is intricate and sometimes an attorney may request a doctor’s letter or affidavit stating that the person in question has the capacity to execute legal documents. In most cases, with advanced dementia or other severe cognitive impairment, it is unlikely that a doctor will be able to provide a legal capacity assessment in favor of the patient.
Unfortunately, if a person hasn’t already executed a power of attorney, the document naming an agent to act financially and transactionally, or a health care surrogate, naming an agent to act medically, the only alternative is to open a guardianship. A trust can be helpful in these circumstances too but may not be perfect without a power of attorney and health care surrogate. Even if the person whose capacity is in question is your spouse and you own a house together, you still won’t be able to sell the property without having power of attorney. Another situation could arise if family members do not agree on who can make medical decisions when a health care surrogate could have eliminated this issue.
Filing a guardianship is a last resort option, and it is one of the most unpleasant court processes. A guardianship is asking the court to deem a person incapacitated, effectively taking away rights (“the ward”) and naming a guardian that stands in their shoes. This is a permanent proceeding upon which an attorney is required for the entire duration of the guardianship, meaning the attorney stays on until the ward passes away or is restored to capacity. We all know having an attorney indefinitely can be very costly.
A simple way to avoid these circumstances and future costs is to ensure that you and your loved ones have the proper legal documents in place. Having a health care surrogate and power of attorney in Florida is paramount in ensuring your wishes are respected; they are not just pieces of paper, but crucial aspects of estate planning.
Cheers to peace of mind and smooth sailing ahead!
Tara David, Esq. of Estate Law of Florida, P.A. is located at 2211 E. Sample Road (Suite 101) in Lighthouse Point. Visit elflorida.com, email [email protected], or call 954-951-7274 for more information. Tara David offers complimentary consultations for estate planning and probate matters.