Advance
directives are written instructions which communicate your wishes about
the care and treatment you want to receive if you reach the point where
you can no longer speak for yourself. Medicare and Medicaid require
that health care facilities that receive payments from them provide
patients with written information concerning the right to accept or
refuse treatment and to prepare advance directives.
A
competent adult has the right of self-determination regarding decisions
concerning their health, including the right to refuse medical treatment.
A person’s intent is usually communicated in one of the following
three ways: a living will, a health care surrogate, and/or a durable
power of attorney. A brief description of each of these directives is
provided below:
Living
Wills- A document that formalizes an individual’s
wishes regarding the medical care that is to be used or withheld if
he or she becomes incapacitated or unable to make his/her own decisions.
Many living wills include “do not resuscitate” orders that
spell out under what circumstances an individual does not want to be
revived.
Health
Care Surrogate- An individual you select to make medical
decisions for you when you are no longer able to make them yourself.
A signed, dated writing may revoke a designation of a surrogate at anytime.
Durable
Power of Attorney- A document that can delegate the authority
to make health, financial, and/or legal decisions on a person’s
behalf. A durable power of attorney goes in effect when a person is
unable to act for him or herself. Any person who is competent under
law to make a contract can make a power of attorney.
If
you choose not to write an advance directive, be sure all of your family
and friends clearly understand what you wish to have done if you are
incapacitated.
DURABLE
POWER OF ATTORNEY
WHAT
IS A DURABLE POWER OF ATTORNEY?
Florida Statutes permit a durable power of attorney. It is a document
that specifies exactly in the powers which you are giving to the person
holding the durable power of attorney. This may include but is not
limited to arrangement for and consent to medical, therapeutic and
surgical procedures, including the administration of drugs. Durable
powers of attorney can also relate to things as transfer of property,
borrowing money, handling bank accounts, etc. Durable powers of attorney
should be prepared in conjunction with your personal attorney. Here
we only address a durable power of attorney for health care purposes.
HOW
DO I DESIGNATE A DURABLE POWER OF ATTORNEY?
There is no set form for a durable
power of attorney. A sample durable power of attorney for healthcare
can be found here.
The document should specify the date that it becomes effective. In
order for a durable power of attorney to remain effective should you
become functionally incompetent, it must include language which states
that it is not affected by your disability, except as provided by
statute. You may use any words so long as the intent is clear.
WHO
CAN HOLD A DURABLE POWER OF ATTORNEY?
Under
Florida law, you can name any adult you choose to act as your agent
under a durable power of attorney. This need not be a family member
but should be a person who knows your wishes. If the person is related
to you, you must so state in your power of attorney. Once you have
prepared a power of attorney, the person holding the power cannot
delegate the responsibility or authority to another person. when the
agent is consenting to medical, therapeutic or surgical procedures
for the principal, including the administration of drugs, the agent
must attempt to carry out the wishes of the resident.
DOES
A DURABLE POWER OF ATTORNEY EXPIRE?
Your durable power of attorney expires:
-
At
the time you die.
- At
the time you revoke the power.
- If
you are adjudicated incompetent by a court of law.
- Note:
If a petition is filed to determine your competency, the durable
power of attorney will be temporarily suspended.
The
agent will be able to make all decisions regarding your health care,
from flu shots to the need for surgery. And your agent or proxy can
decide whether to withdraw or withhold life-sustaining procedures.
While you can be as specific as you wish in the guidelines you give
in the document, remember that your agent must also have the flexibility
to make decisions in changing circumstances. You do not need a lawyer
to complete a DPA-HC, nor can a nursing home require you to sign one
before admission.
Sample
of Durable Power of Attorney for Healthcare
The
Florida Living Will let you state our wishes about medical care in
the event that you have an end-state condition, become persistently
vegetative, or develop a terminal condition and can no longer make
your own medical decisions. A second doctor must agree with your attending
physician's opinion of your medical condition.
How
do I make my Florida Living Will legal?
The
law requires that you sign your Living Will in the presence of two
adult witnesses, who must also sign the document. If you are physically
unable to sign, you may have another person sign for you in your presence
and in the presence of the two witnesses. The persons you appoint
as your surrogate and alternate surrogate cannot act as witnesses
to this document. At least one of your witnesses must not be your
spouse or a blood relative.
Note:
You do not need to notarize your Florida Living Will.
Can
I add personal instructions to my Living Will?
Yes. You can add personal instructions in the part of the
document called "Additional instructions." For example,
you may want to refuse specific treatments by adding a statement such
as, "I especially do not want cardiopulmonary resuscitation,
a respirator, artificial nutrition and hydration, or antibiotics."
You may also want to emphasize pain control by adding instructions
such as, "I want to receive as much pain medication as necessary
to ensure my comfort, even if it may hasten my death."
If
you have appointed a surrogate and you want to add personal instructions
to your Living Will, it is a good idea to write a statement such as,
"Any questions about how to interpret or when to apply my Living
Will are to be decided by my surrogate."
What
if I change my mind?
You
can always revoke your Florida Living Will any time you feel the document
no longer reflects your wishes. State law permits you to revoke your
Living Will in the following ways:
-
through
a signed and dated writing showing your intent to revoke;
- by
physically destroying the original, or having someone destroy
it for you in your presence;
- by
orally expressing your intent to revoke; or
- by
executing a new Living Will that supersedes the older document.
What
other facts should I know?
You may appoint a surrogate in your Living Will to make decisions
on your behalf. Unlike a surrogate appointed in your Designation of
Health Care Surrogate, a surrogate appointed through your Living Will
may only act when you are unable to make treatment decisions and have
an end-state condition, or are in a terminal condition; or are in
a persistent vegetative state. To avoid confusion, you should appoint
the same person to act as your surrogate in both Florida documents.
Florida
Living Will 
The
Florida Designation of Health Care Surrogate lets you name someone
to make decisions about your medical care -- including decisions about
life support -- if you can no longer speak for yourself. The Designation
of Health Care Surrogate is especially useful because it appoints
someone to speak for you any time you are unable to make your own
medical decisions, not only at the end of life.
COMPLETING
YOUR FLORIDA DESIGNATION OF HEALTH CARE SURROGATE
Whom
should I appoint as my surrogate?
A
surrogate is the person you appoint to make decisions about your medical
care if you become unable to make those decisions yourself. Your surrogate
can be a family member or a close friend who you trust to make serious
decisions. The person you name as your surrogate should clearly understand
your wishes and be willing to accept the responsibility of making
medical decisions for you.
You
can also appoint a second person as your alternate surrogate. The
alternate will step in if the first person you name as surrogate is
unable, unwilling or unavailable to act for you.
How
do I make my Florida Designation of Health Care Surrogate legal?
The
law requires that you sign your Designation of Health Care Surrogate
in the presence of two adult witnesses, who must also sign the document.
If you are physically unable to sign, you may have another person
sign for you in your presence and in the presence of the two witnesses.
The persons you appoint as your surrogate and alternate surrogate
cannot act as witnesses to this document. At least one of your witnesses
must not be your spouse or a blood relative.
Note:
You do not need to notarize your Florida Designation of Health Care
Surrogate.
Should
I add personal instructions to my Florida Designation of Health Care
Surrogate?
It is best that you don't. One of the strongest reasons for
naming a surrogate is to have someone who can respond flexibly as
your medical situation changes and deal with situations that you did
not foresee. If you add instructions to this document, you might unintentionally
restrict your surrogate's power to act in your best interest.
Instead,
talk with your surrogate about your future medical care, and describe
what you consider to be an acceptable "quality of life."
If you want to record your wishes about specific treatments or conditions,
you should use your Florida Living Will.
What
if I change my mind?
You
can always revoke your Florida Designation of Health Care Surrogate
if you no longer want your designated surrogate(s) to make decisions
on your behalf. State law permits you to revoke your document in the
following ways:
-
through
a signed and dated writing showing your intent to revoke;
- by
physically destroying the original, or having someone destroy it
for you in your presence;
- by
orally expressing your intent to revoke; or
- by
executing a new Designation of Health Care Surrogate that supersedes
the older document.
Health
Care Surrogate Form
After
You Have Completed Your Documents
1.
Your Florida Living Will and Florida Designation of Health Care Surrogate
are important legal documents. Keep the original signed documents in
a secure by accessible place. Do not put the original forms in a safe
deposit box or any other security box that would keep others from having
access to them.
2.
Give photocopies of the signed originals to your surrogate and alternate
surrogate, to your doctors(s), family, close friends, clergy, and anyone
else who might become involved in your health care. If you enter a nursing
home or hospital, have photocopies of your documents placed in your
medical records.
3.
Be sure to talk to your surrogate (and alternate), your doctor(s), clergy,
and family and friends about your wishes concerning medical treatment.
Discuss your wishes with them often, particularly if your medical condition
changes.
4.
If you want to make changes to your documents after they have been signed
and witnessed, you must complete new documents.
5.
Remember, you can always revoke one or both of your Florida documents.
6.
Be aware that your documents will not be effective in the event of a
medical emergency. Ambulance personnel are required to provide cardiopulmonary
resuscitation(CPR) unless they are given a separate order that states
otherwise. These orders, commonly called, "nonhospital do-not-resuscitate
orders," are designed for people whose poor health gives them little
chance of benefiting from CPR. These orders must be signed by your physician
and instruct ambulance personnel not to attempt CPR if your heart or
breathing should stop. Currently not all states have laws authorizing
nonhospital do-not-resuscitate orders.
FAQ
Why
would I want to prepare an advance directive?
It is wise to prepare an advance directive so that medical personnel
and your loved ones will know what care and services you prefer and
what treatment you would refuse, in the event that you are unable communicate
your wishes. You also can designate the person or more than one person
who you would like to make decisions on your behalf. In a surprising
number of families, there is disagreement over what a very ill relative
would prefer. The advance directive makes your wishes clear.
What
are the care or treatments covered by advance directives?
Most advance directives cover life-sustaining treatment such as artificial
feeding, mechanical ventilators, resuscitation, defibrillation, antibiotics,
dialysis and other invasive procedures.
You
can give broad or specific instructions for care providers for each
type of circumstance or treatment. For example, you can state that you
do not want life-prolonging treatments if you will never recover your
physical and mental health to live without constant care and supervision.
Or you can state that you want your life prolonged as long as possible.
You can address what you wish to occur in the event of trauma, a prolonged
state of unconsciousness, a diagnosis of dementia, and so on.
You
can also state that you wish to receive only palliative or comfort care.
Such care is designed to manage terminal symptoms, including pain. It
is important to understand these terms before making decisions about
your preferences. Your surrogate should also become informed about the
difference between comfort care and life-sustaining treatments. Health
professionals and family members may disagree on the nature of a particular
treatment. For example, a relative may become alarmed to see that fluids
are being administered and think that this will extend life against
the patient's wishes. However, the physician might believe fluids are
making the dying person more comfortable and are appropriate palliative
care. Another example could be the temporary need for a ventilator (mechanical
breathing apparatus) and antibiotics following routine surgery.
Pain
alleviation or management is among the most controversial end-of-life
topics. Because of ethical concerns and the confusion over laws regulating
drug addiction, Congress is debating the role of habit-forming and potentially
lethal drugs in the management of pain and discomfort at the end of
life. Studies have found that addiction among seriously ill people is
rarer than once thought. Some individuals, however, fear being over-sedated
at the very time when they want and need to recognize and interact with
others.
Before
making decisions about these treatments they should be discussed with
a well-informed health professional. You can also ask what to expect
during the last days and hours of your life, and what your surrogate
and other loved ones should expect.
What
other decisions can my proxy make?
Depending on where you live and your written instructions, your proxy
or agent can be authorized to decide where you will die (at home or
in a facility), and can arrange for autopsy, organ donation, disposition
of remains, and funeral or memorial plans.
Whom
should I select to be my proxy or agent?
Choose a responsible person to be your surrogate who shares your values
and beliefs about medical care and dying. You must also make sure that
the person is willing to take on this responsibility before you name
her or him in the directive. An alternate should also be selected (and
informed of your choice). Some states do not allow certain people, such
as health care providers or health facility operators, to serve as agents.
Remember also that the person you select to be your surrogate does not
have to be the same person who oversees your financial affairs.
Can
someone take over making decisions before I'm ready?
Though laws vary by state, most states ensure that you remain in charge
of your care as long as you are able. Usually laws are in place that
require at least two physicians to declare you to be incapacitated.
Agents/proxies are not allowed to commit you to a mental institution
or to consent for experimental mental health research, psychosurgery
or electro convulsive treatment. Your proxy may not deny comfort measures
for you.
Can
a medical professional refuse to observe my wishes?
A health care provider may refuse to observe your stated wishes or the
decisions of your agent because of conscience or the institution's policies
or standards. The provider must inform you or your surrogate immediately
and transfer to another provider should be arranged.
Advance
directives must be reviewed periodically and kept current. Keep the
original and give copies of the signed documents to your proxy/agent
(including alternates), your physician, and your hospital. Put a card
or notation in your wallet or purse stating that you have an advance
directive. You may also leave a copy with your lawyer. Some people take
their directives with them when they travel. If you spend extended time
in another state you should also complete advance directives there,
using that state's forms and rules. Advance directives remain in effect
until they are revoked. Any written change you make on a directive may
invalidate it, so consult with a professional or hospital if you wish
to make changes.
What
if I don't sign an advance directive?
Someone has to make decisions when an ill person cannot. Without directives
in the person's medical or hospital files, and without the appointment
of a surrogate through the durable power of attorney, your doctors,
hospital staff and loved ones will do the best they can. To your spouse
or child or life-long friend, this might mean struggling with what they
think you would want. To the medical staff, it means letting their training
and professional experience guide them. Unfortunately, in a world of
good intentions, that training has traditionally led health care professionals
to do all they can to keep you alive. Recent laws are making it easier
for these able professionals to find the best ways to make you comfortable.
But the ways all these wonderful people employ may not be what you want.
Eventually, of course, a conservator (or guardian) could be appointed
by a court. A public agency can request designation of a conservator
and, if your family cannot be located, the conservator may be a public
agency.
What
if I can't sign a directive:What to do when someone is already incapacitated
What if you don't have a chance to plan for your own or a loved one's
death? What if you are responsible for a person who has suffered a severe
stroke, is already in late-stage dementia, or becomes severely disabled
from a traumatic brain injury? Laws and programs exist for these situations,
too.
If
the impairment is gradual, it may be possible to employ many planning
measures already discussed. This depends on the degree of impairment
the person has experienced and their legal ability to sign documents.
If the impairment or incapacity is sudden and permanent, it is imperative
that the responsible person?spouse, child, grandchild, a favorite niece
or nephew, long-time friend or companion or other individual?seek guidance
quickly from an attorney, hospital social work staff, and accountant
or financial planner. The person's own physician as well as the hospital
medical personnel should also be consulted. Several legal mechanisms
are available, the most common being the conservatorship.
Questions
to ask if you are responsible for an incapacitated person include:
- What
is the prognosis?
- Has
the person prepared and signed advance directives?
- Who
would the person most want to take responsibility?
- Would
he or she want that responsibility shared, perhaps among more than
one adult child?
- Does
the hospital provide an ethics committee or other staff that can help
you sort through options for care decisions?
- What
are the person's financial assets?
- Do
they have Medicare, medical or long-term care insurance or other specialized
insurance plans for hospital or illness coverage?
- Are
they eligible for Medicaid?
Some
aspects of an incapacitated person?s financial affairs could be handled
through joint tenancy of property, community property (husband and wife)
provisions, and representative payees. Joint tenancy is the registration
of various assets, such as real estate or bank accounts, in the names
of two or more joint tenants. Potential problems include the ability
of one joint tenant to withdraw money from a jointly held account without
the other's knowledge and possible adverse tax and estate planning consequences.
While a spouse can manage the community property owned with an incapacitated
spouse, court approval may be required for transactions including sales
of real property, borrowing money, signing leases or giving gifts of
property. Also, many states do not have community property laws. A representative
payee can be named for a person who receives only governmental benefits,
such as Social Security or SSI. The payee, who can be a trustworthy
relative, friend or professional, manages the person's funds. The most
effective means of handling an incapacitated person's affairs is the
conservatorship or guardianship.
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