If you have only two children, will they be able to agree about your medical decisions? Will there be a drawn-out court proceeding while you are in the hospital? All of these issues can be avoided by simply preparing an advance directive.
What is an Advance Directive
An advance directive is a written document in which instructions are given by an individual regarding their desires concerning any aspect of their health care or health information. This can include the designation of a health care surrogate, living will or anatomical gift.
Section 765.101(1), Florida Statutes.
A living will is typically a written document that directs the “providing, withholding, or withdrawal of life-prolonging procedures in the event that such person has a terminal condition, has an end-stage condition, or is in a persistent vegetative state.” Section
765.302, Florida Statutes.
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Florida Law When There is no Advance Directive
Florida law provides for a default proxy to make health care decisions in the event you do not have an advance directive. Under Florida law the following persons, in the order indicated, would make health care decisions on an individual’s behalf, including the withdrawal of life-prolonging procedures:
The patient’s spouse;
An adult child of the patient, or a majority of the adult children if there is more than
one adult child;
a parent of the patient;
the adult sibling of the patient, or a majority of the adult siblings if there is more
The statue continues to list individuals to act as a proxy and even includes the appointment of a social worker to make health care decisions. Section 765.401, Florida Statutes.
Although Florida law provides for a default proxy regarding the providing, withholding, or withdrawal of life-prolonging procedures on behalf of a patient, many issues can arise if you rely on the default proxy.
The withholding or withdrawal of life-prolonging procedures can be a heavy decision and can be quite difficult, especially when the patient has not expressed their desires regarding life-prolonging procedures. Is this something the default proxy would be able to handle?
Benefits of an Advance Directive
One of the main reasons to have an advance directive is to address your living will and to make a declaration regarding your desires about life-prolonging procedures in the event you have a terminal condition, an end-stage condition, or are in a persistent vegetative state. You make the decision in advance and take the decision away from your proxy or health care surrogate.
It is also standard to appoint a health care surrogate in your living will to act as your proxy. This will avoid the issues of relying on the default proxies under Florida law. You can select a surrogate that will be able to handle difficult medical decisions while avoiding the concern that multiple proxies may be appointed and have difficulty reaching a majority decision.
This publication is designed to provide accurate and authoritative information in regard to the subject matters covered. It is published with the understanding that in this publication the author is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. (From a Declaration of Principles jointly adopted by a committee of the American Bar Association and a committee of Publishers and Associations.)
Last revision: May 8, 2020