Perspective on Advanced Directives from an Elder Law Attorney

Written by Collett P. Small, Esq. on . Posted in Blog

Elder Law is a highly specialized area of legal practice devoted to the needs of the elderly, individuals with special needs, their families, and those planning for the future, with a primary emphasis on promoting the highest quality of life for individuals. Elder Law attorneys must be knowledgeable in many areas of law, including guardianship, long-term care planning, advance directives, estate planning, probate and trust administration, asset protection, special needs trusts and planning, and elder abuse. Elder Law attorneys take a holistic approach to addressing clients' concerns by focusing on the problem to be solved and not one particular area of law.


As an Elder Law practitioner, I highly recommend that my clients engage in proactive planning by planning ahead when there are no emergencies rather than reactive planning when there is a crisis. It is highly recommended that you have a will and other advanced directive documents in place which govern what happens to you, your medical care, and your property while you are still alive if you become incapacitated or are otherwise unable to make these decisions yourself.

Some of the more common advanced directive documents are wills, living wills, healthcare surrogate designations, durable power of attorneys, do not resuscitate orders, and trusts. Wills govern what happens to your assets once you pass away. A living will states medical desires. A healthcare surrogate designation names another person as your representative for medical decisions if you are unable to make them yourself. A durable power of attorney allows you to appoint a trusted person, called an "agent", who can help with financial and medical decisions. A do not resuscitate order instructs a hospital or emergency medical service to not resuscitate a person in cardiac or pulmonary failure. Trusts are documents created at your direction in which one or more persons manage your property, subject to certain duties to use and protect it for your benefit or the benefit of others you name. By having advance directives, you can make sure your property and health care decisions are handled by the person of your choosing if you become sick or disabled in any way. You can also ensure that your family, friends, and loved ones are properly taken care of when you no longer can or have passed away.

Even the very young are encouraged to have advanced directive documents in place. For example, this time of year, many high school graduates are preparing to go to college. The protective parent-child relationship is now changing, at least legally. At a time when young adults may be moving away from home and seem to need their parents the most, parents are no longer entitled to see their academic, medical or financial records. In cases of emergencies, parents may even be prevented from making medical decisions for them. If your child just graduated from high school and is now off to college, with proper planning, there are documents that permit parents to act on their young adult's behalf if they were incapacitated or otherwise need help.

There are many benefits to working with an Elder Law attorney. Elder Law attorneys are knowledgeable about issues facing seniors and their families. Elder Law attorneys

consider and empathize with some of the physical and mental difficulties that often accompany the aging process. Additionally, Elder Law attorneys are tied into a formal or informal system of social workers, psychologists, gerontologists, care managers, and other elder care professionals who may be of assistance.

The sooner one engages in making an estate plan and executing advance directives, the better. Unfortunately, we never know when illness may strike. Being unprepared leads to crisis planning, which, in addition to being more expensive, may limit the options that are available to you. If you fail to plan then what happens to your property and person will be decided by default provisions laid out in the Florida Statutes. In other words, if you do not have a plan, the State of Florida has a plan for you. Your assets and care may just end up in the hands of someone you would not otherwise choose, such as an ex-spouse. To avoid the hiccups of being unprepared, start the conversation today with your Elder Law attorney. See what documents you will need to have your wishes carried out and to bring you and your family peace of mind. Now is the time to make decisions that may be difficult now, but easier on your loved ones later.