Priority of Medical Decision-Makers when Incapacitated
Throughout life, many unexpected things can happen. Have you ever wondered who will get to make difficult medical decisions for you if you are incapacitated or otherwise unable to? The Florida Legislature has, in § 765.401 Fla. Stat. (1992), made a list in order of priority of such proxies.
The first person on the list is a court-appointed guardian if one has previously been appointed and has been authorized to consent to medical treatment for the patient. Likewise, a guardian advocate previously appointed by the court will be first in line to make decisions for one who has a developmental disability. It is important to note that guardian appointments are not required before a medical decision can be made.
If there is no previously court-appointed guardian then next in line is the patient’s spouse, if the patient has one. Florida stopped recognizing common law marriages in 1968; and, thus, there must be a legally recognized marriage unless the common law marriage was prior to 1968.
If there is no previously court-appointed guardian and no spouse available then next in line is an adult child of the patient. However, if the patient has more than one adult child then a majority of the adult children who are available must reach a consensus on the medical decision.
If there is no previously court-appointed guardian, available spouse, or adult children then next in line is a parent of the patient. It is unclear what happens if there is more than one parent.
If there is no previously court-appointed guardian, available spouse, adult children, or parents then next in line is an adult sibling of the patient. If the patient has more than one adult sibling then a majority of the siblings who are available must reach a consensus on the medical decision.
If there is no previously court-appointed guardian, available spouse, adult children, parents, or adult siblings then next in line is an adult relative of the patient who has maintained regular contact with the patient and has shown special care and concern for the patient. Other factors a court will look at include being familiar with the patient’s health, religious beliefs, moral beliefs, and activities.
If there is no previously court-appointed guardian, available spouse, adult children, parents, adult siblings, or adult relative who is close to the patient then next in line is a close friend of the patient. Notably, the statute does not define what is considered a “close friend.”
If there is no previously court-appointed guardian, available spouse, adult children, parents, adult siblings, adult relative who is close to the patient, or a close friend then the last resort and last in line is a clinical social worker. The clinical social worker must either be licensed or be a graduate of a court-approved guardianship program.
Is this list of order of priority what you expected? This statute only kicks in if you have not executed an advance directive or designated a surrogate to execute one for you, or the designated surrogate is no longer available to make medical decisions.
In order to prevent this list from kicking in, it is important to plan ahead. If you or your loved ones would like to plan ahead in case something happens, please do not hesitate to contact the attorneys of Chepenik Trushin LLP who are ready, willing, and able to assist with your estate planning and probate litigation needs.
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