Three Legal Steps to Take After a Serious Diagnosis

If you are reading this in a hospital parking lot, or at the kitchen table after everyone else has gone to bed, we know the feeling you are carrying. You want to know what has to happen first.

Most of the legal work after a serious diagnosis is not urgent. Three pieces are, and they come down to one thing: making sure someone can act for you, the way you would have, on a day when you cannot. In Florida they are only available while the person who is sick can still sign.

Step one: the documents that let someone stand in for you

A Florida durable power of attorney lets the person you choose handle the bank, the insurer, the mortgage, the tax return, the long term care application. Chapter 709 sets the rules, and several of them surprise people.

• It must be signed by you and two subscribing witnesses and acknowledged before a notary (section 709.2105), and it has to say in words that your later incapacity does not end it (section 709.2104).
• It works the day you sign it. Florida stopped allowing new springing powers of attorney, the kind that switch on only after a doctor certifies incapacity, on October 1, 2011 (section 709.2108). So the question is whether you trust this person today.
• The powers that move property, changing a beneficiary designation or rights of survivorship, making gifts, creating or amending a trust, disclaiming property, exist only if you separately signed or initialed each one (section 709.2202). Discount forms skip this, and families find out at the bank counter.

Add a preneed guardian designation at the same appointment (section 744.3045): it names who a Florida judge should appoint if a guardianship ever becomes necessary anyway. Capacity is the gate for all of this, which is why it is step one. Our guide on using a power of attorney to avoid guardianship shows what waiting costs: a Chapter 744 incapacity proceeding, an examining committee, and a public court file.

Step two: your health care wishes, in two documents

Florida splits medical planning into two instruments, and families who sign only one usually signed the wrong one for the moment they eventually hit.

1. 1Designation of health care surrogate (section 765.202). You name who makes medical decisions. Sign before two adult witnesses, at least one of whom is neither your spouse nor a blood relative, and your surrogate cannot be a witness. Name an alternate, hand your surrogate an actual copy as the statute requires, and sign a HIPAA release the same day.
2. 2Living will (section 765.302). Not who decides, but your own instruction about life prolonging procedures if you have a terminal condition, an end stage condition, or are in a persistent vegetative state. Two physicians, your primary and at least one consulting physician, must separately examine you before it applies (section 765.306).

One choice on the surrogate form matters more than the rest. By default the authority begins only when your primary physician concludes you lack capacity and enters that in your record (section 765.204). You may instead stipulate that it is exercisable immediately, which through a long hospitalization is the difference between a spouse who gets an answer and a spouse in a phone tree.

Step three: make the paperwork match the plan

Your will does not control your retirement account, your life insurance, your annuity, or the account you added your daughter to at the branch. Those pass by beneficiary designation and by title, whatever the will says.

• Pull the current beneficiary designation on every retirement account, life insurance policy and annuity. Read what it says today, not what you remember signing.
• If you have a revocable living trust, confirm each asset is actually titled in the trust's name. An unfunded trust is a very expensive folder.
• Check the deed on your Florida homestead. The Florida Constitution limits how a homestead may be devised when there is a surviving spouse or a minor child, and a Lady Bird deed may fit better.