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Many Florida residents have strong feelings about the medical care and treatment they want to receive. Those opinions become all the more important when you are unable to articulate them due to your mental or physical incapacity. If you want to ensure you have a say in your end-of-life care, you can use one of several types of advanced healthcare directives to guide your loved ones and medical providers and make sure your wishes are honored.
An advanced healthcare directive is an estate planning document that states your wishes for your medical care and is used if you are unable to communicate or make decisions. It can be used if you are unconscious, or physically or mentally incapable of communicating with your medical providers. The different types of advanced healthcare directives can designate the person or people you want to make choices on your behalf, authorize doctors to speak with those people, and provide guidance to them about your preferred care. Understanding the estate planning documents that relate to your healthcare and medical treatment can guide your decision-making and help you make your wishes clear.
While healthcare advanced directives are often referred to collectively, there are actually several different types of advanced healthcare directives. Depending on what you are trying to achieve, you may need some or all of these documents.
A healthcare surrogate designation is a document that designates one or more people to make medical decisions on your behalf when you can’t do so yourself. It is sometimes called a “healthcare power of attorney,” but should not be confused with a durable power of attorney, which manages your finances instead.
A healthcare surrogate designation does not give your loved ones the authority to act alongside you or overrule your wishes. Instead, it triggers when your medical providers determine that you are medically incapacitated. This could occur as a result of:
If you do not appoint a healthcare surrogate and become incapacitated, Florida law allows certain loved ones to act as your health care proxy, in the following order:
A guardianship is a legal proceeding naming a caretaker for an incapacitated person. A legal guardian may be an individual, or a professional, appointed by the courts to control your care. Note that a legal guardian has top priority to act as a health care proxy. If you want to prevent future litigation, you can use a guardian designation executed while you still have legal capacity, which can ensure that the Florida probate courts appoint the person you want to make decisions on your behalf.
A well-drafted Advanced Healthcare Directive will include waivers of the federal confidentiality laws under the Health Insurance Portability and Accountability Act (HIPAA). We typically include HIPAA language in our designations in the Designation of Health Care Surrogate and do a separate, blanked HIPAA Release. However, some medical providers, particularly hospitals, will require you to complete their own HIPAA confidentiality waiver, rather than interpreting the authorizations in the advance directive itself. In preparing your Advanced Healthcare Directive, you will need to contact your medical providers to use the forms they will recognize and honor when the time comes.
A Florida Living Will is the other type of advanced directive that most people want as part of their estate plan. It generally provides that you do not want to be kept alive artificially if you are terminally ill, in a permanent vegetative state, or have an irreversible end-stage condition, and two doctors agree there is no reasonable hope for your recovery. Your Health Care Surrogate and healthcare proxies can use your Living Will as guidance, and relieve the strain of having to decide whether to begin, continue, or terminate life-sustaining treatment. A living will must be properly executed and witnessed by at least one person who is not your spouse or blood relative. Copies should be provided to your close family members, your healthcare surrogate, and your main doctors.
Many Florida residents prefer not to undergo aggressive life-saving treatment, prioritizing quality of life over its duration. A Do Not Resuscitate Order (DNRO) is not prepared by us and is instead a supplemental document signed by you and your doctor which is printed on yellow paper. If entered after you are incapacitated, your healthcare surrogate may sign on your behalf. It requests that emergency departments and other medical providers withhold certain treatments to resuscitate you. Unless a DNRO has been signed, medical providers have a legal duty to administer CPR and other life-saving treatments to preserve your life in the case of cardiac or respiratory arrest.
Physician Orders for Life-Sustaining Treatment (POLST) is a similar form, laying out your preferences in medical treatment. A POLST is broader than a DNRO, and can direct more types of medical care, including intubation, antibiotics, IV fluids, and nutritional information. It is usually printed on brightly colored paper, and is intended to be carried on your person in case of emergencies.
One last type of advanced healthcare directive you can execute is an anatomical gift form. These wishes can also be included in your Will and other medical advanced directives. This form documents if you want some or all of your body to be used for:
Unlike other types of advance directives, an anatomical gift form is not effective until after your death. However, due to the nature of the gift, your medical providers should know in advance what you intend to do with your body upon your death, so that those portions of your body can be properly preserved.
Harrison Estate Law is happy to help you prepare and execute the advanced healthcare directives needed to ensure your medical wishes are honored. Please contact us online or via email or call 352-559-9828 to schedule a free consultation. If you don’t live close to Gainesville, we are happy to set up a phone or Zoom call. We have extended evening and weekend appointments available by request.
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