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Many individuals who are agents under a power of attorney also are expected to provide caregiving services to the principal when he or she can no longer do so. Some agents have to quit their jobs or take time out of their week to help care for the principal. From being a primary caregiver to driving the principal to doctor appointments, agents can be responsible for several tasks and financial matters.

Typically, agents under a power of attorney are entitled to “reasonable compensation,” with some exception. However, some power of attorney documents specifically prohibit compensation and some agents are specifically prohibited by law for receiving compensation for serving as an “attorney-in-fact.” Due to the vagueness of the term “reasonable,” one way to approach this matter is to enter into a written caregiver contract with the principal.

Contact an attorney at Bach & Jacobs, P.A. to discuss how you can help minimize risk and liability by creating a caregiving agreement that includes services undertaken as an agent under a power of attorney. This is especially necessary if you are employing private duty caregivers directly rather than through an agency.

Legislation that made changes to the Florida Health Care Surrogate Act was enacted in October of 2015. Although many of the changes affected competent adults, there were also changes that affected the medical treatment of minors. The bill makes a change that no power of attorney executed after October 1, 2015 can consent to the treatment of a minor.

The bill makes an amendment to s. 743.0645, F.S. to establish that a power of attorney executed between July 1, 2001 and September 30, 2015 is sufficient to authorize an individual to consent to ordinary and necessary health care for a minor. However, the bill changes the statute so that no power of attorney executed after October 1, 2015 will have the authority to consent to the treatment of a minor.

After October 1, 2015, only a health care surrogate, designated pursuant to 765.2035, F.S., can allow someone other than a parent or guardian to consent to medical care or treatment for a minor. This designation must be in writing and signed by two witnesses. The designation can be revoked or amended at any time.

Florida recently enacted changes to the Florida Health Care Surrogate Act that gives patients additional flexibility in appointing an agent and add additional notification requirements for facilities. These improvements went into effect October 1, 2015, and impact both adults and minors.

The bill created a new statute 765.202(6), F.S. that allows an individual to designate a health care surrogate who can act and make health care decisions while the individual is still competent. Historically, a determination of incapacity has been essential to a health care surrogate taking effect. Now, however, a health care surrogate can be given authority immediately upon execution of the document. The bill also maintains that when a conflict arises between the principal and the surrogate, the decision of the principal prevails.

The bill amended s. 765.204, F.S. so that a health care facility is required to notify the surrogate of a determination of incapacity. It is also required now that if the health care facility knows of a durable power of attorney, it must also notify the attorney in fact of a determination of incapacity. Lastly, the bill makes it a requirement that the attending physician’s office notify the principal’s primary physician of the principal’s incapacity.

To update your appointment of health care surrogate document or other estate planning documents, contact Bach & Jacobs, P.A. to schedule an appointment.