Health Care Surrogates, Guardianships and Florida Lawsuits

What is a health care surrogate? What is a power of attorney (POA)? How is a health care surrogate different than a guardian? When may Florida litigation regarding a health care surrogate occur? What decisions can a health care surrogate make?

Florida Adult Guardianships

At Pankauski Lazarus, we handle many guardianship cases throughout Florida. When we refer to “guardianships”, we are talking about guardianships over adults, not minors. Commonly, children or friends of the elderly file a guardianship to protect someone who is suffering from dementia or Alzheimer’s. Furthermore, certain disabled or injured adults may benefit from a guardianship if they are incompetent and unable to take care of themselves.

In Florida, guardianship law is governed by Chapter 744 of the Florida Statutes. If you are involved in guardianship litigation in West Palm Beach, or anywhere in Florida, you should refer to this chapter. You should also consider interviewing an experienced guardianship litigation lawyer who can answer your questions and properly file petitions on your behalf.

Guardianships and Lesser Restrictive Alternatives

Florida guardianship courts take guardianship proceedings very seriously because these proceedings can result in a ward’s rights being taken away. The “ward” is the person subject to the guardianship who has been determined to be incompetent or incapacitated.

Guardianship lawyers know that, even if somebody is deemed incapacitated by a probate court judge in Florida, the court may not appoint a guardian if there’s a lesser restrictive alternative that adequately addresses the incapacitated person’s needs. Therefore, you may be able to avoid a guardianship if you have a proper estate plan in place prior to becoming incompetent.

If you consult with an estate planning attorney, you can decide for yourself who will take care of you and your finances if you can no longer do it yourself. For example, if you create a revocable living trust, your successor trustee will be able to safeguard your money and property. If you create a POA document, your POA will be able to make business and/or life decisions on your behalf. If you have health care documents, such as a living will, medical power of attorney, or health care proxy, your health care representative of choice will be able to make decisions regarding your health care.

Sometimes, it can become confusing to a trustee or POA as to what the estate documents allow them to do exactly. For example, certain POA documents specify or limit the authority that it delegates.

Manor Oaks, Inc. v. Campbell

A recent Fourth DCA opinion, Manor Oaks, Inc. v. Campbell, is a good example of Florida litigation regarding POA documents. Florida probate lawyers know that certain language in trusts, POA documents, and wills is not always clear. Therefore, probate litigators, like the lawyers at Pankauski Hauser Lazarus, are hired to go to court before a judge who can determine the meaning.

Here, a health care surrogate brought suit against a nursing home following the death of a patient. The nursing home moved to compel arbitration. The Broward County Circuit Court denied the motion. The nursing home appealed.

The main issue on appeal was whether or not a health care surrogate document is broad enough to allow the surrogate to consent to an arbitration provision in a nursing home.

The document in question was titled “Durable Power of Attorney Containing Health Care Surrogate Provisions”. However, the authority the document delegated only involved health care matters. Therefore, the appellate court found that the document’s narrow focus was on the surrogate’s power to make healthcare decisions, not business choices concerning dispute resolution.

If you are a Florida health care surrogate or involved in POA litigation, you may want to read this case in its entirety. If you wish to interview a West Palm beach POA attorney, free of charge, call (561)514-0900 ext.101.