Many people tend to confuse between health care surrogate designations and powers of attorney. Although both are valuable legal tools to protect your estate and loved ones in unexpected situations, they are distinct by nature.
In this article, you will discover the difference between a power of attorney and a health care surrogate designation.
What is the Difference Between Power of Attorney and Health Care Surrogate? – Key Elements
Power of Attorney
A power of attorney (POA) is a legal document used to delegate authority from one person to another. The person creating the document (the principal) grants another party (the agent) the authority to act on his or her behalf on specific matters.
The level of authority granted to the agent depends on the specific language used in the document’s terms. Depending on the principal’s goal, the legal scope of a power of attorney may be very broad or limited.
Usually, a power of attorney is used to designate an agent to act on your behalf on financial matters (although it may also apply for personal health care and other areas).
Although the termination of a power of attorney depends on how the document is structured, the most common type of POA used for estate planning is the durable power of attorney.
A durable POA remains valid and effective if the principal becomes incapacitated. Hence, the person designated as the agent will assume control of the principal’s financial affairs in the event of temporary or permanent incapacitation.
Healthcare Surrogate Designation
A designation of healthcare surrogate is a legal document wherein you (the principal) grant the authority to a third party (the surrogate) to make healthcare decisions on your behalf if you can no longer communicate or express your wishes.
Statutory provisions require that “a written document designating a surrogate to make health care decisions for a principal or receive health information on behalf of a principal, or both, shall be signed by the principal in the presence of two subscribing adult witnesses.”
Additionally, “the person designated as surrogate shall not act as witness to the execution of the document designating the health care surrogate. At least one person who acts as a witness shall be neither the principal’s spouse nor blood relative.” (Fla. Stat. §765.202 (2))
Under the federal Health Insurance Portability and Accountability Act (HIPPA), personal medical information is considered privileged information.
Florida Statutes §765.202 (6) provide that “a principal may stipulate in the document that the authority of the surrogate to receive health information or make health care decisions, or both, is exercisable immediately without the necessity for a determination of incapacity (…).”
Florida law also establishes that “unless the document states a time of termination, the designation shall remain in effect until revoked by the principal.”
If the document has immediate effect and the principal is not incapacitated, the principal has the final decision on any matters regarding his or her medical care. While the surrogate’s decisions are not final, he or she may have access to privileged medical information.
Power of Attorney vs. Health Care Surrogate Designation – Immediately Contact Your Florida Probate Lawyer
If you want to structure a proper estate plan, waste no time with uncertainty. Call Attorneys Romy B. Jurado and Diana L. Collazos today at (305) 921-0976 or email [email protected] to schedule a consultation.