Advance directives are legal documents that can help ensure that a person’s independent wishes regarding health care will be followed.   The most important documents for this purpose are the designation of health care surrogate and the living will.        

Why is it important to have advance directives for health care?

A designation of health care surrogate can help avoid uncertainty regarding who would be able to make health care decisions for the principal (the person making the designation).   The living will allows the principal to state in advance his directives about whether artificial life-prolonging procedures should be applied in certain extreme situations.   These documents also can preserve independence and avoid expense and delay by helping to avoid the need for guardianship.        

What would happen if I did not have advance directives and the time came when I was no longer able to make my own medical decisions?

Under Florida law, health care providers could attempt to locate a health care proxy. Section 765.401, Florida Statutes (2018) sets out a prioritized list of those who might be able to act as your health care decision-maker.   If no one in an upper category can be found or is willing to serve as proxy decision-maker, the provider may seek a proxy from the next lower tier. One problem is that the person found might not be someone you would choose to allow to make your decisions; another is that critical time might be spent searching for a proxy. If no proxy can be found, or if certain other circumstances exist, a guardianship might have to be established.

  

Guardianship

What is a guardianship? 

If a person becomes incapacitated to make his own decisions, a court may appoint a guardian to take over some or all of the person’s decisions.  A guardian of the person can make personal decisions for the ward, such as medical and residential placement decisions. A guardian of the property can manage the ward’s assets. A plenary guardian can make decisions of both types. Most guardianships are plenary.

 

What are the pros and cons of guardianship?

Having an appropriate guardian means that an incapacitated person’s financial, medical, and social decisional needs can continue to be met. A guardian generally must receive training and is accountable to the court for decisions that are made on a ward’s behalf. Annual accountings and reports must be made to the court. However, guardianship is expensive, time-consuming, and generally, the ward’s legal right to make decisions is taken away. If less restrictive alternatives like health care advance directives and financial documents are in place that appropriately name agents to take care of the alleged incapacitated person’s needs, guardianship might not be necessary.

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Health Care Surrogate

What is a designation of health care surrogate?  

A designation of health care surrogate is a health care advance directive document that enables the maker to legally authorize a chosen person to make health care decisions if needed. Designation of a health care surrogate can avoid the loss of time that could occur with attempts to find a proxy decision-maker or set up a guardianship, can help avoid the possibility of unwanted persons becoming decision-makers under the proxy law and the uncertainty of who might be able to make decisions as guardian, and can help avoid the expense and loss of rights involved in guardianship.   Because the health care surrogate is required by law to make decisions as the principal would have decided, if those decision are known, it also can help to preserve independent decisions of the principal even when he is incapacitated to speak for himself.

When is a health care surrogate able to make decisions for me?

Under a traditional health care surrogate designation, the surrogate can only make decisions for the principal if the principal’s doctor has determined the principal is unable to make his own decisions at that time, and the doctor has noted that in the medical record. If there is any question as to the principal’s capacity to make his own decisions, the doctor must consult with another physician and agreement that the principal is incapacitated must be entered in the patient’s medical record before the surrogate can act. Since 2015, Florida law has allowed a principal to either make that traditional type of health care surrogate designation or in the alternative, one that allows the surrogate to make health care decisions for the principal at any time. However, even if the surrogate is granted that right to make decisions at any time, the doctor must consult with a principal who is still capacitated and if there is any difference of opinion, the principal’s decision overrules that of the surrogate. Another change in the law in 2015 gives the option to a principal to choose in his designation document whether or not to authorize the named surrogate to be able to access the principal’s medical information at any time, regardless of whether the principal is authorizing the surrogate to make decisions at any time or only when the principal cannot make his own decisions.  

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Living Will

What is a living will?

A living will allows the principal to direct in advance what his personal decisions are regarding whether or not artificial life-prolonging procedures should be applied if the principal were to be in an end-of-life type situation or vegetative state. It can be specific or general. In addition to giving the principal more control over what will happen to him even at a time when he is unable to speak for himself, having a living will in place can avoid painful family conflict. It can give the patient’s family the comfort of knowing that they are allowing the loved one’s wishes to be followed and it relieves them of having to make those difficult decisions, themselves.  

When are the decisions in a living will applied?

A living will only applies in very limited circumstances: when a patient can no longer speak for himself and his own doctor, plus a consulting doctor, both agree that the patient is either in a terminal condition, an end-stage condition, or a vegetative state, and that there is no reasonable medical hope of recovery.

What artificial life-prolonging procedures are involved?

Artificial life-prolonging procedures that can be provided or withheld include procedures, treatments, or interventions that sustain, restore, or supplant a spontaneous vital function -- in other words, procedures that keep up, restart, or stand in for a function that a body normally does automatically to keep a person alive. Some examples of life-prolonging procedures are: CPR if the heart stops, placement on a ventilator if lungs are not functioning properly, and insertion of a feeding tube if there is a loss of the ability to swallow.

If my living will says I do not want artificial life support provided, how do I know I will still get pain medication?

Florida law provides that if the living will is being followed and artificial life-prolonging procedures are being terminated or withheld, the patient will still receive pain relief and comfort care.

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Durable Power of Attorney

What is a power of attorney?  

A power of attorney is a legal document in which a principal authorizes an agent who can take actions concerning the many of the principal’s financial, legal and/or medical matters as if the agent were actually the principal.   It can be general, covering just about any such decisions, or it can be limited to just certain areas or items of decision-making. A regular power of attorney is only usable as long as the maker is mentally capacitated.   However, a durable power of attorney is still usable after the principal becomes incapacitated.  

How can a general durable power of attorney help me? 

If it is right for a person and the agent is completely trustworthy, a durable power of attorney can be very helpful.   This is especially so in the event of the incapacity of the principal, because, depending on the authority that has been granted, the agent can use it to help the principal by doing things like paying bills for the principal using the principal’s account, arranging for repairs on real or personal property and obtaining loans if necessary to cover those repairs, hiring attorneys or service providers, and even selling the principal’s house to provide funds for the principal’s care.

Is a general durable power of attorney right for everyone?  

The durable power of attorney is a double-edged sword. It can be extremely helpful, but in the wrong hands, it can be extremely dangerous. The agent has a duty to use your resources only for your benefit, and can be sued if he misuses assets. However, it may be hard to recover the funds after the document has been abused. Third parties relying on the presentation of a valid durable power of attorney are generally protected from suit. It is extremely important that a principal only give these powers to a person the principal completely trusts.  

What if I change my mind about having given an agent powers under a durable power of attorney?

A principal may revoke a power of attorney at any time that he is still capacitated. However, the law provides for notice to be given in very specific ways.  The assistance of an attorney is extremely important in revoking a power of attorney, to ensure it is done correctly.  An elder law attorney specialist would be most knowledgeable in this area.

My Florida durable power of attorney says that I give the agent the right to make health care decisions. Does that mean it is the same as a health care surrogate designation?

It has a similar effect, but is not quite the same.   Florida Statutes Chapter 765 lays out specific rules regarding when and how health care decisions can be made by a health care surrogate.   As stated above, a traditional health care surrogate designation is only usable when the principal’s attending physician has determined that the principal lacks capacity to make his own health care decisions, and the physician has entered that fact into the principal’s medical record. If the attending physician has any question as to whether the principal is capable of making his own decisions at that time, a second physician has to record his agreement as to the patient’s incapacity in the patient’s medical record before the surrogate under a traditional designation can be called upon to make decisions.   A recent change in Chapter 765 lets a principal make either this traditional designation of health care surrogate that is only effective when the principal is not able to make his own decisions or to create one that is immediately effective, allowing the surrogate to make decisions for the principal at any time. Regarding the immediately effective option, the law provides that if the principal is still capable of decision-making, the principal will be consulted and the principal’s own decisions will overrule any differing decision made by the surrogate. Another recent change in Chapter 765 lets the principal choose to authorize the surrogate to receive medical information at any time, even if the surrogate is not allowed to make decisions until the patient is incapacitated. A Florida durable power of attorney made after October, 2011 and most made before that date is usable the day it is signed and per section 709.2201, Florida Statues (2018), authority granted can be specified to include the more general wording, “without limitation, the authority to . . . make all health care decisions on behalf of the principal, including, but not limited to, those set forth in Chapter 765.”    

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Revocable Living Trust

What is a living trust?

A living trust is a revocable trust that allows the grantor to name a trustee and succesor trustee(s) who can manage financial assets that are put into the name of the trust.  With proper wording and execution, and if assets are properly put into the trust, a living trust can be used to help avoid the need for guardianship over the grantor in the event of the grantor’s incapacity, and it can be used to help avoid, or to reduce the number of assets going through, probate after the death of the grantor. Problem areas may include the possibility of abuse by the trustee, the cost, and lack of proper funding of the trust. 

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Wills

I’m confused.  I keep hearing about living wills, wills, and living trusts.  Are they all the same thing?

The names are confusingly similar, but these are completely different legal documents. A living will is a document that deals only with end-of-life health care decisions.   A living trust is a document that concerns management of financial assets during, and usually after, the principal’s lifetime and possibly, avoidance of probate. A will (also known as a “testamentary will”) is a document that allows you to designate how your probate estate property should pass after your death.

What is the best way to get these documents?

Advance directives for health care involve potential life-or-death decisions for you.   Financial decision-making documents generally involve the control and management of all that you own.   Sometimes, people have used forms that turned out to not meet all the requirements of current Florida law, or that were only valid until the principal became incapacitated and really needed the help, or they made mistakes when executing otherwise-valid documents on their own that made either the entire document invalid or certain powers needing separate execution invalid. Particular wording, and actions like separate signatures in order to grant certain powers, may be necessary for these documents to meet a person’s specific needs. For these reasons, it is best to seek the assistance of an attorney in deciding if these are right for you, and with creating and executing the documents properly. An elder law attorney would be the most knowledgeable in this area.   Many legal services or legal aid programs with elder law projects may be able to provide free assistance with these documents to eligible clients.

Where can I learn more about these documents?

Laws change frequently. For instance, major changes in these areas were made in 2011 and 2015.   It is good to periodically consult with the attorney of your choice to see if your documents should be updated. This educational document was most recently updated on March 4, 2019, and changes may have occurred if you are reading it after that date. You may view current Florida Statutes at http://www.leg.state.fl.us/Statutes. The Florida Bar, at https://www.floridabar.org often offers online consumer brochures on these matters on its “For the Public” Consumer Information page.

Updated March 4, 2019

  

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