Florida Probate Litigation Lawyer Blog
The Florida Legislature has enacted a statute that recognizes every competent adult’s right to make decisions regarding their health, including the right to refuse medical treatment. Fla. Stat. § 765.102(1). Further, the statute specifically allows “a competent adult to make an advance directive instructing his or her physician to provide, withhold, or withdraw life-prolonging procedures or to designate another to make the health care decision for him or her in the event that such person should become incapacitated and unable to personally direct his or her health care.” Fla. Stat. § 765.102(4).
Florida law defines an “advance directive” as “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 or health information.” Fla. Stat. § 765.101(1). In other words, an advance directive is a statement about how you want medical decisions to be made if you cannot make or express them yourself. People often execute advance directives when they are diagnosed with a life-threatening illness, but advance directives can be made at any point in time by a competent adult. For a number of reasons, it can be beneficial to put your wishes into writing before health concerns arise.
An advance directive “includes, but is not limited to, the designation of a health care surrogate, a living will, or an anatomical gift.” Fla. Stat. § 765.101(1).
A living will is a statement about the type of care you want or do not want if you become unable to express your wishes yourself. It is important to consult with an attorney to be sure your wishes are clear, and you will receive the care you intend if you ever become unable to make decisions yourself. For example, you can sign a do not resuscitate order if you want to refuse CPR if you were to go into respiratory or cardiac arrest.
Another type of advance directive is a health care surrogate designation, which is a document naming another person to be your representative and make choices for you in the event you cannot do so yourself. This document may also include instructions about the type of treatment you want. A health care surrogate designation can be beneficial to ensure you are cared for in a manner that is consistent with your wishes.
Lastly, an anatomical donation can be made if you indicate your wish to donate all or part of your body upon death. You can express your wish to be an organ donor by designating it on your driver’s license, signing a donor form, or expressing it in a living will.
If you have not prepared advance directives, decisions about your health care may be made for you by a court-appointed guardian or family member, and this person may not know your true wishes. It is important to talk with medical and legal professionals to consider how you will be cared for in the event you cannot express your own wishes.
In the case of Terri Schiavo, Mrs. Schiavo was in a persistent vegetative state and her family members could not agree about how to care for her. Mrs. Schiavo’s husband and legal guardian believed his wife would not have wanted prolonged life support without any chance of recovery, so he wanted to remove her feeding tube. Mrs. Schiavo’s parents disagreed and wanted their daughter to remain on a feeding tube. After eleven years of legal battles and turmoil, Mrs. Schiavo’s feeding tube was ultimately removed. Schindler v. Schiavo (in Re Schiavo), 780 So. 2d 176 (Fla. 2d DCA 2001).
In Mrs. Schiavo’s case, the Florida Supreme Court noted that Florida law creates “protections for those who are adjudicated incompetent, including that the proxy’s decision be based on what the patient would have chosen under the circumstances or is in the patient’s best interest, and be supported by competent, substantial evidence.” Further, Florida law also provides for judicial review if “the patient’s family . . . believes [that] the surrogate or proxy’s decision is not in accord with the patient’s known desires or the provisions of this chapter.” Bush v. Schiavo, 885 So. 2d 321, 335-336 (Fla. 2004) (quoting Fla. Stat. § 765.401(2)-(3) and § 765.105(1)).
To avoid putting your friends and family in difficult decision-making circumstances, and to be sure your wishes are honored, consult with the Miami estate planning attorneys at Chepenik Trushin LLP regarding the preparation of advance directives. Chepenik Trushin LLP is ready, willing and able to assist with any needs pertaining to the preparation of advance directives.
