For Care Of The Person
A Designation Of A Healthcare Surrogate allows a specified individual to make medical decision for an incapacitated person without additional legal intervention.
A Living Will allows the individual’s primary care physician to withhold or withdraw life support, but only in the event the individual has been diagnosed with a terminal illness and has less than six months to live. This may not succeed in avoiding legal intervention if family members are conflicted over the life ending decision.
A Health Care Proxy can be appointed to make medical decision during a single episode of incapacity. This is often a stopgap measure, but will not work well for any long term incapacity or illness or if no one is willing to step forward and make the necessary decision(s).
A Guardian Advocate is appointed to make medical decisions for an individual during a Baker Act Proceeding. This is a legal proceeding, but it is terminated upon the individual’s recovery from the psychiatric episode.
A Guardian Advocate is appointed for a Developmentally Disabled individual through an appointment proceeding as fully described in F.S. § 393.12. This procedure is appropriate for higher functioning individuals, since the individual must lack some, but not all capacity. It is a legal proceeding that allows a third party to make some decision for the person with limited capacity, but is not as intrusive or demeaning as a F.S. § 744 proceeding, since there is no “adjudication of incapacity.”
A Trust Agreement can be either revocable or irrevocable, can have the same person as both the trustee and the beneficiary or different individuals, can name the trustee and/or beneficiary as an individual or a corporation. Most trusts allow for the incapacity of the trustee to be determined without court involvement, allowing for a successor trustee (usually named in the document). to take over the management of the trust.
Appointment of a Representative Payee to manage an individual’s periodic income (Social Security, Veteran’s or Civil Service Pensions or Annuities) can sometimes avoid further legal interference.
Joint Tenants with Rights of Survivorship (JTWROS) accounts are a rudimentary form of avoiding court intrusion. This will only serve the incapacitated person if ALL property is titled this way, and , generally speaking, should be titled with the same person on all properties. In Trust For (ITF), Pay On Death (POD) and Joint Tenants in Common (JTC) will NOT help in the case of incapacity, only in the actual death of the individual.
Care Management
If the individual lacks capacity but there is involved (and not conflicted) family that has access to the property of the individual , perhaps a guardianship may be avoided with the assistance of a geriatric care manager.
