LibGuides: Florida Estate Planning by Leesha Newkirk-Crouch: Advanced Care Directive

Fundamentals of Advance Directives

"Advance Directives are legal documents that a person uses to make known his or her wishes regarding life-saving medical care. These documents can set up a plan for your medical care should you no longer be able to make decisions for yourself. They can include a Living Will, Medical Power-of-Attorney, and, if you desire, a Do Not Resuscitate order.

Advance Directives are referred to by different names depending on the state where you reside: advance directive, living will, declaration, power of attorney, patient advocate designation, etc. Some states combine a declaration and a durable power of attorney into a single form, called an “advance health care directive.”

An advance directive should be prepared in advance of when it will be needed, so it’s advisable for all adults to have one. You must be 18 or older and of sound mind to do so.

Your health care directives take effect if your doctor determines that you lack the capacity to make your own health care decisions. This generally means you cannot understand the nature and consequences of the health care choices that are available to you, and you are unable to communicate your own wishes for care, either orally, in writing, or through gestures.

Your health care directives remain effective for the rest of your life, unless you specifically revoke your documents, or if a court orders otherwise (although this eventuality is rare). You may change or revoke your health care directive at any time. If someone disputes the validity of your health care directive, it may be challenged in court.

Although getting divorced has no effect on your health care directive, if you named your spouse as your agent many states will automatically revoke his/her authority. If you have named an alternate agent, that person will assume the role. If you divorce before your health care directive takes effect, it’s advisable to create a new document, naming a new agent altogether.

There has been an up swell of interest in advance directives recently. This is largely due to the growing ability of medical technology to prolong life, as well as many highly publicized legal cases involving comatose patients where their family members fight over whether or not to withdraw life sustaining treatment.

Although laws vary from state to state, in general, a patient’s written instructions will be honored. In fact, the Patient Self-Determination Act of 1990 requires hospitals to inform their patients about advance directives. Many states now provide their own living will forms with their specific statutory requirements. It is also legally acceptable to draft and sign a standard form or your own written statement of your treatment preferences, provided that you follow your state’s witnessing requirements.

If you complete an advance directive in one state, but are ultimately hospitalized in a different state, your wishes will still influence your care. To be on the safe side, however, if you spend a lot of time in more than one state, it is advisable to create an advance directive in each of those states."

http://www.hg.org/advance-medical-directives.html#1

State Links to Advance Directive Forms and Information

Common Questions

What is an advance directive?

It is a written or oral statement about how you want medical decisions made should you not be able to make them yourself and/or it can express your wish to make an anatomical donation after death. Some people make advance directives when they are diagnosed with a life-threatening illness.

THREE TYPES OF ADVANCE DIRECTIVE:

• A Living Will

• A Health Care Surrogate Designation

• An Anatomical Donation

Which is best?

Depending on your individual needs you may wish to complete any one or a combination of the three types of advance directives.

Am I required to have an advance directive under Florida law?

No, there is no legal requirement to complete an advance directive. However, if you have not made an advance directive, decisions about your health care or an anatomical donation may be made for you by a court-appointed guardian, your wife or husband, your adult child, your parent, your adult sibling, an adult relative, or a close friend.

Must an attorney prepare the advance directive?

No, the procedures are simple and do not require an attorney, though you may choose to consult one. However, an advance directive, whether it is a written document or an oral statement, needs to be witnessed by two individuals. At least one of the witnesses cannot be a spouse or a blood relative.

Can I change my mind after I write an advance directive?

Yes, you may change or cancel an advance directive at any time. Any changes should be written, signed and dated. However, you can also change an advance directive by oral statement; physical destruction of the advance directive; or by writing a new advance directive.

What if I have filled out an advance directive in another state and need treatment in Florida?

An advance directive completed in another state, as described in that state's law, can be honored in Florida.

What should I do with my advance directive if I choose to have one?

• If you designate a health care surrogate and an alternate surrogate be sure to ask them if they agree to take this responsibility, discuss how you would like matters handled, and give them a copy of the document.

• Make sure that your health care provider, attorney, and the significant persons in your life know that you have an advance directive and where it is located. You also may want to give them a copy.

• Set up a file where you can keep a copy of your advance directive (and other important paperwork). Some people keep original papers in a bank safety deposit box. If you do, you may want to keep copies at your house or information concerning the location of your safety deposit box.

• Keep a card or note in your purse or wallet that states that you have an advance directive and where it is located.

• If you change your advance directive, make sure your health care provider, attorney and the significant persons in your life have the latest copy.

Bloomberg

Advanced Directives Statutory Definitions

(1) “Advance directive” means a witnessed written document or oral statement in which instructions are given by a principal or in which the principal’s desires are expressed concerning any aspect of the principal’s health care, and includes, but is not limited to, the designation of a health care surrogate, a living will, or an anatomical gift made pursuant to part V of this chapter.

(2) “Close personal friend” means any person 18 years of age or older who has exhibited special care and concern for the patient, and who presents an affidavit to the health care facility or to the attending or treating physician stating that he or she is a friend of the patient; is willing and able to become involved in the patient’s health care; and has maintained such regular contact with the patient so as to be familiar with the patient’s activities, health, and religious or moral beliefs.

(3) “End-stage condition” means an irreversible condition that is caused by injury, disease, or illness which has resulted in progressively severe and permanent deterioration, and which, to a reasonable degree of medical probability, treatment of the condition would be ineffective.

(4) “Health care decision” means:

(a) Informed consent, refusal of consent, or withdrawal of consent to any and all health care, including life-prolonging procedures and mental health treatment, unless otherwise stated in the advance directives.

(b) The decision to apply for private, public, government, or veterans’ benefits to defray the cost of health care.

(c) The right of access to all records of the principal reasonably necessary for a health care surrogate to make decisions involving health care and to apply for benefits.

(d) The decision to make an anatomical gift pursuant to part V of this chapter.

(5) “Incapacity” or “incompetent” means the patient is physically or mentally unable to communicate a willful and knowing health care decision. For the purposes of making an anatomical gift, the term also includes a patient who is deceased.

(6) “Informed consent” means consent voluntarily given by a person after a sufficient explanation and disclosure of the subject matter involved to enable that person to have a general understanding of the treatment or procedure and the medically acceptable alternatives, including the substantial risks and hazards inherent in the proposed treatment or procedures, and to make a knowing health care decision without coercion or undue influence.

(7) “Life-prolonging procedure” means any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function. The term does not include the administration of medication or performance of medical procedure, when such medication or procedure is deemed necessary to provide comfort care or to alleviate pain.

(8) “Living will” or “declaration” means:

(a) A witnessed document in writing, voluntarily executed by the principal in accordance with s. 765.302; or

(b) A witnessed oral statement made by the principal expressing the principal’s instructions concerning life-prolonging procedures.

(9) “Persistent vegetative state” means a permanent and irreversible condition of unconsciousness in which there is:

(a) The absence of voluntary action or cognitive behavior of any kind.

(b) An inability to communicate or interact purposefully with the environment.

(10) “Terminal condition” means a condition caused by injury, disease, or illness from which there is no reasonable medical probability of recovery and which, without treatment, can be expected to cause death.