Editor’s Note: This is part of a series of columns that will be presented in this newsletter by Sam W. Boone, Jr., a local attorney whose primary practice areas include elder law, estate planning, probate and trust administration. It is hoped that the information will be valuable for caregivers and family members dealing with issues related to elder law.
Advanced directives are legal documents that let you make your health care wishes clear to your physician. They include living wills and heath care surrogate designations (sometime called health care powers of attorney). Perhaps the most publicized legal case where advance directives were not available is that of Terri Schiavo. A court in 2005 was forced to make the end-of-life decision when a 41-year-old, brain-damaged woman’s husband and her parents disagreed on what life sustaining treatment, if any, she would have wanted at the end of her life after she had been in a coma for 15 years. Ultimately a court had to make that difficult decision.
A living will is legal document you use to let your family and health care providers know how you want to be treated at the end of your life. It allows you to convey your wishes regarding your end of life care if you are unable to communicate those to others. It ensures that you receive the life sustaining treatment you do want and that do not want. It can also address palliative care (pain management).
A health care surrogate designation (health care power of attorney) under Florida law allows one adult to appoint another adult (a surrogate) to review health care information and make health care decisions on their behalf. The person appointing the person to make those decisions is called the principal and the person appointed to make those decisions is called a health care surrogate.
If you appoint a health care surrogate that person is required to use what is called substituted judgment. Substituted judgment means that your agent must make decisions based on your values and not their own. This is significantly different that when you have not appointed a surrogate. In that case decisions will be made based on what another person believes is in your best interest.
Prior to 2015 Florida law said that a surrogate could not access medical information or make medical decisions unless the principal had been determined to be incapacitated. Because a principal may regain capacity and in some instances, especially with the elderly, may vacillate in and out of capacity, a redetermination of incapacity is frequently necessary to provide ongoing authorization for the health care surrogate to act. This process can hinder effective and timely assistance and is cumbersome. Further, some competent persons desire the assistance of a health care surrogate with the sometimes complex task of understanding health care treatments and procedures and with making health care decisions.
Changes to the law that went into effect Oct. 1 amends the health care surrogate law to allow a person to designate a health care surrogate, who may act at any time, including while the person is still competent and able to make his or her own decisions. However, if the person is competent, his or her own decisions are controlling over any contrary decision of the surrogate.
This bill also creates a means for designating a health care surrogate for the benefit of a minor when the parents, legal custodian, or legal guardian of the minor cannot be timely contacted by a health care provider or are unable to provide consent for medical treatment.
Written by Sam W. Boone Jr.
Sam W. Boone, Jr. is a Gainesville-based attorney practicing elder law and estate planning. He is past-president of the Academy of Florida Elder Law Attorneys and is accredited by the Veterans Administration. To learn more about elder-law issues, go online to www. http://boonelaw.com, or call (352)-374-8308.