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Planning For Incapacity

If an adult is temporarily or permanently unable to communicate the person’s own wishes, and has not properly designated a person to act for the person, a number of problems can arise. Court action, including guardianship, may be required to appoint somebody to take action on the person’s behalf. Until somebody has authority, nobody would be able to write checks, access assets, or make medical decisions.

To avoid the uncertainty and costly and time-consuming process of court involvement, every adult should sign a durable power of attorney and other documents to enable a chosen person to make the person’s decisions. A durable power of attorney remains valid even after capacity has been lost. Such documents should address financial matters, health care decisions, and end-of-life decisions. All such documents should also name one or more alternates in case the primary designee is unavailable. It is vital to sign such documents prior to the event causing the incapacity. Once the accident or medical event has occurred, it is too late.

When a person reaches the age of eighteen in Florida, he or she is legally an adult. Parents no longer have any rights to take any action or make any decisions on behalf of adult children. If a college-age child has an accident, and has not signed such documents, the parents will be unable to inquire about the child’s care or make decisions for the child. Parents of minor children should also consider signing authorizations for care of their children in the event a minor child is injured while the parent is unavailable.

After signing such documents, it is a good idea to inform the designees that they have been designated, and to advise the designees of the person’s wishes, including those related to end-of-life. Be sure to carry emergency information so that designees can be found, and be sure the designees have a copy of the document in advance.

It is much better to choose a person who will handle one’s financial affairs and medical decisions in advance rather than allowing a guardian or proxy to be appointed by a court.

Attorney Michael A. Pyle, of Pyle, Dellinger & Duz, PLLC. 1655 North Clyde Morris Blvd., Ste. 1, Daytona Beach. Phone: 386.615.9007. E-mail: or website: