Elder Law FAQ

Who Should Have A Health Care Surrogate? Gainesville Elder Law Attorneys The Miller Elder Law Firm discuss who should have a health care surrogate.

“We believe that everyone over 18 should have a designation of a health care surrogate and a living will. Both of those documents are very important to anyone over 18 because what happens is, a lot of times, we’ll have a student that’s away at college, and they become ill. The infirmary at the hospital, at the college, can’t give any information to the parents because the child is no longer a child. They’re an adult. If you’ve named your parent or anyone else as your health care surrogate, then that person’s going to be able to get information about you and make medical decisions for you if you cannot.”

What is a Designation of Healthcare Surrogate? The Miller Elder Law Firm explains what a designation of health care surrogate is and why it is important. “A designation of health care surrogate is a document where you say ahead of time that you want someone to make medical decisions for you if you cannot. So, for example, you and your husband, let’s say, are in a car accident and you can’t make the decision whether or not to have surgery. If you have a health care surrogate designation, you say to the doctor ahead of time, ‘Here’s his judgment I trust to make medical decisions for me when I cannot.’ Then, the doctor will contact that person, explain the ins and outs of the surgery, and get informed consent for the surgery.”

“I have decided that I need to be that person that can manage any elder law issue that comes through the door. And by going through the training and the process of becoming certified in elder law, that has prepared me for all aspects of our senior population that come to see us.”

Can an elder law attorney help me plan my living will?

In this video, Shannon Miller, a Gainesville elder law attorney, discusses the importance of having a living will. A living will is a document that outlines a person’s wishes, should they ever be in a position where they are incapable to make choices about their health care or property. Living wills also outline the person’s wishes regarding life support. The Miller Elder Law Firm feels that living wills are important, and they provide a free living will document for clients to use. 

“The living will is basically a document, and it needs to be a document. It has to be in writing. Basically, it’s meant to say, ‘If I cannot make decisions for myself and I’m at the end of my life or I’m in a persistent vegetative state, I want my designated healthcare surrogate, whoever that medical decision-maker is, to have the authority to do this, to do this, to do that.’ That’s what a living will is; a very important document. Actually, we provide a living will form on our website. It’s downloadable. We want everybody to have it. It’s free. Take it. Share it with your friends and family. Make sure people know what your wishes are. Make sure that when you look at it, that it reflects what your wishes are. It’s got everything in it. There may be things that you want to take out. Having a living will is so important that we at the Miller Elder Law Firm feel like everybody should have it, so feel free to take it.”

Who Should Have A Living Will? Gainesville Elder Law Attorney Shannon Miller discusses who should have a living will. The attorneys at The Miller Elder Law Firm feel living wills are so important, they provide a free downloadable living will document.

A living will is basically a document, and it needs to be a document. It has to be in writing, and it addresses three separate conditions that we find in medicine. The first condition is a terminal condition, and a terminal condition is basically if you are at the end of your life and the doctor has diagnosed you with a particular condition, usually cancer, and says, “You have X number of months to live,” and it’s very definite that your life is at the end, in that situation, you have to make a decision. Do you want to be resuscitated during that time? Do you want artificial hydration and nutrition to be options for your decision-maker to withdraw? That’s basically Part 1 of a living will.

Part 2 of a living will is an end-stage condition. So, if you are at the end of your life, but the doctor doesn’t know what’s going to kill you. Maybe you have heart failure, maybe your liver’s not working right, your kidney’s not working right. You’re sick, and you’re at the end of your life and they know you’re at the end of your life, but they can’t tell you what it is that’s going to kill you. That is called an end-stage condition. Again, the question during that time is, ‘Do you want to be resuscitated? Do you want your life artificially prolonged, like on a ventilator? Do you want to have the option for your health care surrogate to be able to withdraw artificial hydration and nutrition?’

The third condition is a persistent vegetative state, and that is the Terri Schiavo situation. Basically, what we see in that case is that there is no brain activity. So, when the physicians tell you, ‘There’s no brain activity for your mother,’ the question is, ‘Do you have a living will so that you can withdraw artificial hydration if you don’t wish for that person to continue in that state?’ Sometimes, people leave that person in that condition for a while to see if there’s recovery. But, without a living will, you don’t have the discretion to withdraw artificial hydration and nutrition in Florida. So, we encourage everybody: Have a living will.”

Can You Name Multiple Health Care Surrogates? North Florida Elder Law Attorneys at The Miller Elder Law Firm discuss health care surrogates, and why naming more than one can be tricky.

“You can list more than one person as your health care surrogate. Legally, there is no prohibition from doing that. But, technically, it can be a little bit tricky because if you name two people to be your health care surrogate, then technically the doctor is supposed to talk to them and get informed consent from both of them. What if they don’t agree? It can just make it challenging. So, we typically say that you name one person, first, to be your health care surrogate, and then name a backup so that if the doctor can’t get in touch with that first person or they’re unwilling to give consent, then you have someone named who can be the backup person for your doctor to talk to.”

Estate Planning Attorneys The Miller Elder Law Firm explain the Health Care Proxy Statute in Florida. Because of this statute, it may be better to name a health care surrogate. For more information on designating a health care surrogate, contact The Miller Elder Law Firm today. “We have in Florida what’s called a health care proxy statute, and it is a statute which states the order of preference and priority that a doctor is going to talk to if you have not named someone. So, for example, it would name a guardian first, then a spouse, then a child. If you don’t trust your spouse’s judgment or your child’s judgment, you may want to name someone else. You can name anyone you want to on your health care surrogate form. So, you can name a best friend who’s a nurse and you trust her judgment, and then that person would have priority over the normal list the doctors typically go by.”

The Miller Elder Law Firm explains what a power of attorney is. “Power of attorney is a document that is so powerful. We say that you only should sign a power of attorney if you trust the person you’re naming 110 percent, because what it does…as soon as you sign a power of attorney, it’s effective immediately. In Florida, we no longer have a springing power of attorney. That was taken away in October 2011. As soon as you sign a power of attorney it’s immediately effective and it grants power as broad or as narrow as you give, but it can be extremely broad. It can allow the person to manage every financial decision that you can manage.”

What Is An Advance Directive? Gainesville Estate Planning Attorneys at The Miller Elder Law Firm explain what an advance directive is and why it is important to have one. A living will is a type of advance directive. “An advance directive is a document where you are telling doctors or your loved ones ahead of time how you want your body treated at the end of your life. For example, a living will is a document that says either, ‘I want my body to be treated to the fullest extent. I want a feeding tube. I want a breathing machine for me, and I want a machine to pump my heart when I’m terminally ill or in stage of the end of life,’ or ‘I don’t want those things.’ You can tell your doctor ahead of time if you want that treatment or not, and then it is a valid, binding document and your doctor will have to honor it. If it’s fully executed and your loved ones show it to the doctor, they’re going to treat your body how you want it treated or not treated.”

What Is Respite Care? Gainesville Elder Law The Miller Elder Law Firm explains respite care, and how important it is for those who are caregivers to take care of themselves as well. “Respite care is for someone who is a caregiver and they’ve been providing care for someone for a long, long time. It may be that the individual is at the end of their life, or they could have an injury or a disease that lasts for many years. We might ask for respite care for the caregiver because they need a break. If you’re a caregiver, your life expectancy actually decreases because of the stress and the turmoil that you’re going through in caring for someone. Respite care is very important for caregivers to have. If you’re taking care of someone with Alzheimer’s, and you can get someone to give you a break for a couple of hours, great, take it. If you can get someone to give you a break for a couple of days, even better. But, definitely take care of yourself as the caregiver so that you can take care of the person who needs your care.”

We say, as long as you trust the person 110 percent, you should have a power of attorney because someone may need to pay your bills if you’re in the hospital; someone may need to sell your house when you get older so that they can provide for caregivers to come in; all those kind of things. If you don’t have someone you trust, we recommend not signing the power of attorney.

Elder Law Attorney The Miller Elder Law Firm explain the different types of trusts. If you or someone you know needs assistance setting up a trust, contact The Miller Elder Law Firm today. “There are all kinds of trusts. A trust is just a document. It’s a set of instructions basically that says, ‘I’m going to take my money and I’m going to hold it.’ The trustee is the person who holds the money and follows whatever directions are in the trust. There are revocable trusts where you can put money in the trust now and then change your mind and take it out. A lot of times that happens. People want to have their money in trust and have it managed by someone when they become incapacitated and then direct where the money will go when they die. There are irrevocable trusts where once you put the money in, you can’t get it back out. That’s a completed gift for IRS purposes and sometimes people will do that for state tax planning reasons. There are also special needs trusts where we can set up a special trust for someone who is disabled either using their own money or using a family member’s money and still allow that individual to be qualified to receive government benefits, but also receive the benefits of the money that is in trust to enhance the quality of their life. There are all kinds of trusts depending on your situation and what your goals and needs are.”

If you or someone you know needs assistance setting up a special needs trust, contact The Miller Elder Law Firm today. “There are also special needs trusts where we can set up a special trust for someone who is disabled, either using their own money or using a family member’s money, and still allow that individual to be qualified to receive government benefits but also receive the benefits of the money that is in trust to enhance the quality of their life.”

Revocable trusts are where you can put money in the trust now and then change your mind and take it out. People want to have their money in trust and have it managed by someone when they become incapacitated and then direct where the money will go when they die.

Irrevocable trusts are where, once you put the money in, you can’t get it back out. That’s a completed gift for IRS purposes, and sometimes people will do that for estate tax planning reasons.