A Beginner's Guide to Living Wills and Power of Attorney
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Permanent Link: http://ufdc.ufl.edu/IR00001912/00001
 Material Information
Title: A Beginner's Guide to Living Wills and Power of Attorney
Physical Description: Fact Sheet
Creator: Lacefield, Brian
Publisher: University of Florida Cooperative Extension Service, Institute of Food and Agriculture Sciences, EDIS
Place of Publication: Gainesville, Fla.
Publication Date: 2001
Acquisition: Collected for University of Florida's Institutional Repository by the UFIR Self-Submittal tool. Submitted by Melanie Mercer.
Publication Status: Published
General Note: "Published September 2001"
General Note: "FE 291"
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Source Institution: University of Florida Institutional Repository
Holding Location: University of Florida
Rights Management: All rights reserved by the submitter.
System ID: IR00001912:00001


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A Beginner's Guide to Living Wills and Power of Attorney1 Brian Lacefield and P.J. van Blokland2 1. This is EDIS document FE 291, a publication of the Department of Food and Resource Economics, Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gainesville, FL. Published September 2001. [This is one section of "A Beginner's Guide to Estate Planning." Department of Food and Resource Economics Staff Paper SP01-4. University of Florida, Gainesville, FL. April 2001. 18pp.] Please visit the EDIS website at http://edis.ifas.ufl.edu 2. Brian Lacefield, former graduate student; and P.J. van Blokland, professor; Department of Food and Resource Economics, Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gainesville, FL. This document is distributed with the understanding that the authors are not engaged in tendering legal or other professional advice, and the information contained herein should not be regarded or relied upon as a subsitute for professional service. This document is not all inclusive in providing information to achieve compliance with the laws and regulations governing the practice(s) discussed herein. For these reasons, the use of these materials by any person constitutes an agreement to hold harmless the authors, the Department of Food and Resource Economics, the Institute of Food and Agricultural Sciences, the Agricultural Law Center, and the University of Florida for any liability claims, damages, or expenses that may be incurred by any person as a result to or reliance upon the information contained in this document. The Institute of Food and Agricultural Sciences is an equal opportunity/affirmative action employer authorized to provide research, educational information and other services only to individuals and institutions that function without regard to race, color, sex, age, handicap, or national origin. For information on obtaining other extension publications, contact your county Cooperative Extension Service office. Florida Cooperative Extension Service/Institute of Food and Agricultural Sciences/University of Florida/Christine Taylor Waddill, Dean. Introduction This is the third in a brief three-document series on estate planning. Each is simple and intended only to provide an outline to someone who knows little about the subject. The other two documents are (1) wills and (2) trusts. Medical technology and treatments are complex and rapidly changing. Because medical procedures can be extremely costly and undesirable, your financial and estate planning can be jeopardized when your final days are spent without the minimal quality of life you desire and large health care bills deplete your estate (Shenkman, 1991). To avoid this situation, you should consider adding a living will and power of attorney to your estate plan. What Is a Living Will? A "living will" is a document that describes the kinds of medical treatment you do and do not want. With a living will you can specify whether you want continued treatment if you are terminally ill or in a permanent vegetative state. If you are opposed to extraordinary measures to keep you alive (e.g., heart-lung machines and intravenous feeding), you can specify your objections to these in your living will. You should be as specific as possible about the kinds of drugs and medical procedures you have in mind and when they should or should not be used (Morris et al., 1995). Your living will normally become effective when you are no longer capable of expressing your wishes and have been diagnosed as terminally ill, irreversibly unconscious or in a persistent vegetative state. Most states have statutes recognizing living wills (AARP, 2000). It is unnecessary to hire a lawyer to write your living will (living wills are available on the Internet and in some bookstores). Requirements for a living


A Beginner's Guide to Living Wills and Power of Attorney 2 will are that you must be mentally competent, sign it and have two witnesses sign it. A sample living will is illustrated in Table 1. While a living will makes your wishes known, it does not guarantee that your wishes will be followed. Someone will have to authorize your treatment, or make a decision not to continue it. For this, you can grant a durable power of attorney for health care to someone you trust to make the decisions you would have wanted (Morris et al., 1995). What Is Power of Attorney? A "power of attorney" is a contract in which you appoint another person to act on your behalf in the event that you are unavailable to make decisions. The word "unavailable" is purposefully vague because it can mean that you are (1) physically or mentally handicapped or (2) simply that you are travelling and therefore unavailable for this event. Thus the power of attorney grants financial and/or other authority during a time when you cannot exercise control. The person to whom you give this authorization is called your attorney-in-fact, or agent (Shenkman, 1991). The agent could be your spouse, sibling, adult child or close friend. It should obviously be someone you trust to act wisely and in your best interest. The agent will have the legal right to make decisions for you, as well as the legal right to buy and sell property and write checks on your account (Morris et al., 1995). Types of Power of Attorney A power of attorney gives authority to an agent to act on your behalf in certain financial and personal matters. The agent can write checks on your account, manage your investments or perform other financial duties as you wish. The agent can also make decisions on your behalf regarding your wishes in your living will and other health-related questions that might arise. There are three basic types of power of attorney. The first is ordinary power of attorney, which gives the agent power to act on your behalf when you are competent but revokes the power if you become mentally or physically disabled. The second is springing power of attorney, which takes effect only after you are unable to take care of yourself (Morris et al., 1995). Neither type is entirely suitable for today's estate planning because the agent is restricted in his role (Shenkman, 1991). The third is durable power of attorney, which gives the agent authority to act on your behalf whether or not you are mentally or physically competent. The agent consequently has a pretty free rein and should be someone you trust thoroughly. A sample form for a general power of attorney is shown in Table 2. The power of attorney documents should be updated every four or five years and can be changed or revoked at any time (Morris, et al, 1995). References American Association of Retired Persons. "AARP on the Issues." AARP Webplace. 2000. Morris, K.M., A.M. Siegel and V.B. Morris. The Wall Street Journal Guide to Planning Your Financial Future. New York, NY: Lightbulb Press, Inc. 1995. Shenkman, Martin M. The Estate Planning Guide. New York, NY: John Wiley and Sons, Inc. 1991.


A Beginner's Guide to Living Wills and Power of Attorney 3 Table 1. Sample "Living Will" for Florida (The 'Lectric Law Libraryhttp://www.lectlaw.com). FLORIDA DECLARATION Declaration made this _____ day of ________________________________, 20____. I, ____________________, willfully and voluntarily make known my desire that my dying not be artificially prolonged under the circumstances set forth below, and I do hereby declare: If at any time I should have a terminal condition and if my attending physician has determined that there can be no recovery from such condition and that my death is imminent, I direct that life-prolonging procedures be withheld or withdrawn when the application of such procedures would serve only to prolong artificially the process of dying, and that I be permitted to die naturally with only the administration of medication or the performance of any medical procedure deemed necessary to provide me with comfort care or to alleviate pain. I do [___] I do not [___] desire that nutrition and hydration (food and water) be withheld or withdrawn when the application of such procedures would serve only to prolong artificially the process of dying. In the absence of my ability to give directions regarding the use of such life-prolonging procedures, it is my intention that this declaration be honored by my family and physician as the final expression of my legal right to refuse medical or surgical treatment and accept the consequences for such refusal. If I have been diagnosed as pregnant and that diagnosis is known to my physician, this declaration shall have no force or effect during the course of my pregnancy. I understand the full import of this declaration, and I am emotionally and mentally competent to make this declaration. ______________________________________ (Signed) The declarant is known to me, and I believe him or her to be of sound mind. ______________________________________ Witness ______________________________________ Witness


A Beginner's Guide to Living Wills and Power of Attorney 4 Table 2. Sample "General Power of Attorney" (The 'Lectric Law Libraryhttp://www.lectlaw.com). POWER OF ATTORNEY I, _________________, of __________________, hereby appoint ________________, of _______________, as my attorney in fact to act in my capacity to do every act that I may legally do through an attorney in fact. This power shall be in full force and effect on the date written below and shall remain in full force and effect until ____________ or unless specifically extended or rescinded earlier by either party. Dated _____________, 20____. By: ______________________ STATE OF _____________________, COUNTY OF _______________________ BEFORE ME, the undersigned authority, on this ________ day of _______________, 20____, personally appeared _____________ to me, well-known to be the person described in and who signed the Foregoing, and acknowledged to me that he executed the same freely and voluntarily for the uses and purposes therein expressed. WITNESS my hand and official seal on the date aforesaid. NOTARY PUBLIC My Commission Expires: