It’s not unusual for you or a family member to find oneself in a medical emergency where certain critical decisions pertaining to one’s health have to be made expediently. Often times people who are in emergency situations are incapacitated, whether due to legal incapacity (i.e. age), mental health or physical limitations, and are unable to make decisions for themselves. What ensues is a battle between loved ones about who has legal right to make certain decisions about your health. Out of nowhere comes an estranged spouse or distant relative who wants to make decisions that other family members feel they shouldn’t be making but are legally entitled to make. To avoid these scenarios, we encourage our clients to prepare advance directives. Florida Advance Directives are a combination of forms that are used in the event that an individual is physically or mentally incapable of giving consent. Individuals may complete an advance directive, which may include information about his or her living will, health care surrogates, and health care proxies. Each advance directive addresses medical and legal conditions that provide appropriate planned care to the individual.
Completing an Advance Directive
The following is a non-exhaustive list of the general principles of advance directives:
- The individual completing a directive form must be a competent adult.
- An advance directive completed in another state is applicable in Florida as long as it complies with the law of the state in which it was executed or with Florida law.
- A competent adult may make an advance directive instructing their physician as to their wishes regarding their medical care, which may include instructions to provide, withhold, or withdraw life prolonging procedures.
- A principal may empower a surrogate or health care proxy to make health care decisions for them on their advance directive.
- The principal may amend or revoke an advance directive or the decisions of the health care surrogate or proxy at any time as long as the principal is competent.
Sections of Advance Directives in Florida
Any competent adult may create a living will in respect to the principal’s desires regarding medical treatment should the principal become incompetent or incapacitated. The will must be signed by the principal in the presence of two witnesses. The witnesses cannot be the spouse or a blood relative of the principal. If the principal is physically unable to sign the will, a witness may subscribe the principal’s signature in the principal’s presence and direction as per Fla. Stat. §765.302. A living will may also be an oral statement made by the principal however the statute does not offer further guidance on how an oral living will is created.
Health Care Surrogate
Apart from living wills, an advance directive may consist of a health care surrogate. Florida allows a principal to appoint a person, such as a health care surrogate, to act as their healthcare decision maker. A healthcare surrogate must be a competent adult who has been designated by the principal, who must also be a competent adult, to make health care decisions on behalf of the principal. Unless the advance directive states a termination, the designations of the health care surrogate remain in effect unless revoked by the principal.
Health Care Proxy
A Health Care Proxy is a competent adult who has not been expressly designated by the principal to make health care decisions for them but is statutorily authorized in the event of the principal’s incapacity. In no particular order of priority, this is a non-exhaustive list of individuals who may act as a health care proxy for the principal:
- The principals spouse
- A judicially appointed guardian authorized to consent to medical treatment
- An adult child
- An adult sibling
- A close personal friend of the principal
- A license clinical social worker
End of Life Decisions Made through Living Will, Surrogate or Proxy
Florida law allows life-prolonging procedures to be withheld or withdrawn under the terms of a living will. As per Fla. Stat. §765.101(12), Florida defines life-prolonging procedures to include any medical procedure, treatment, or intervention, which sustains or supplants a spontaneous vital function. To determine whether life-prolonging procedures have to be withdrawn or withheld by a living will, surrogate, or proxy, the principal must be found to suffer from a terminal condition, end stage condition, or a persistent vegetative state. As per Fla. Stat. §765.304(1), the principal’s primary physician may proceed in life-prolonging procedures if the principal has not designated a surrogate to execute their wishes concerning life-prolonging procedures.
Do Not Resuscitate Order (DOH Form 1896)
There is a form drafted by the Florida Department of Health that is completed by a person’s physician to indicate that the person does not want to be resuscitated in case of a respiratory or cardiac arrest. In order for the form to be effective it must be printed on yellow paper. This form does not need to be witnessed and it does not require formalities. The principal or their health care surrogate/proxy and their physician must sign the form. Health care facilities and emergency responders will honor the DNRO form.
It should be clear why creating advance directives are essential and should become part of your estate planning. You do not want someone making decisions about your health care if you would prefer someone else to make those decisions on your behalf. Typically, if you select a certain individual to make decisions for you its because they are familiar with your wishes and would be willing to carry them out regardless of their own personal beliefs and emotional state. If you would like to learn more about advance directives, please feel free to contact one of our attorneys.
It should be noted that I am not your lawyer (unless you have presently retained my services through a retainer agreement). This post is not intended as legal advice, it is purely educational and informational, and no attorney-client relationship shall result after reading it. Please consult your own attorney for legal advice. If you do not have one and would like to retain my legal services, please contact me using the contact information listed above.
All information and references made to laws, rules, regulations, and advisory opinions were accurate based on the law as it existed at this time, but laws are constantly evolving. Please contact me to be sure that the law which will govern your business is current. Thank you.