ADVANCE DIRECTIVES

Your Right to Make Health Care Decisions Under the Law in Florida

Florida and federal law give every competent adult, 18 years or older, the right to make their own health care decisions, including the right to decide what medical care or treatment to accept, reject, or discontinue. If you do not want to receive certain types of treatment or you wish to name someone to make health care decisions for you, you have the right to make these desires known to your doctor, hospital or other health care providers and, in general, to have these rights respected. You also have the right to be told about the nature of your illness in terms that you can understand, the general nature of the proposed treatments, the risks of failing to undergo these treatments and any alternative treatments or procedures that may be available to you.

However, there may be times when you cannot make your wishes known to your doctor or other health care providers. For example, if you were taken to a hospital in a coma, would you want the hospital’s medical staff to know what your specific wishes are about the medical care that you want or do not want to receive?

This newsletter describes what Florida and federal laws have to say about your rights to inform your health care providers about medical care and treatment you want or do not want. Your right to select another person to make these decisions for you if you are physically or mentally unable to make them yourself is also outlined in this newsletter.

To make these difficult issues easier to understand, we have presented the information in the form of questions and answers. Because this is an important matter, we urge you to talk to your spouse, family, close friends, personal advisor, doctor and attorney before deciding whether or not you want advance directives.

General Information About Advance Directives

Q. What are “Advance Directives”?

A. Advance directives are documents that state your choices about medical treatment or name someone to make decisions about your medical treatment if you are unable to make these decisions or choices yourself. They are called “advance” directives, because they are signed in advance to let your doctor and other health care providers know your wishes concerning medical treatment. Through advance directives, you can make legally valid decisions about your future medical care.

Florida law recognizes 2 types of advance directives:

1. A Living Will Declaration

2. A Designation of Health Care Surrogate

Q. Do I need to have Advance Directives?

A. No, it is entirely up to you whether you want to prepare any documents. But if questions arise about the kind of medical treatment that you want or do not want, advance directives may help to solve these important issues. Your doctor or any health care provider cannot require you to have advance directives in order to receive care, nor can they prohibit you from having advance directives. Moreover, under Florida law, no health care provider or insurer can charge a different fee or rate depending on whether or not you have executed advance directives.

Q. What will happen if I do not prepare Advance Directives?

A. You will receive medical care regardless of whether you have any advance directives. However, there is a greater chance that you will receive treatments or procedures that you may not want.

If you cannot speak for yourself and you do not have any advance directives, your doctor or other health care providers will look to the following people in the order listed for decisions about your care:

1. Your guardian, if a court has appointed one, who is authorized to make health care decisions for you;

2. Your spouse;

3. An adult child, or if you have more than one adult child, a majority of those children who are reasonably available for consultation;

4. Either of your parents;

5. An adult brother or sister, or if you have more than one, a majority of those who are reasonably available for consultation;

6. Any other of your adult relatives who have exhibited special care or concern for you and who are familiar with your activities, health, and religious or moral beliefs; or

7. A close friend who has exhibited special care and concern for you and who is familiar with your activities, health, and religious or moral beliefs.

Q. How do I know what treatment I want?

A. Your doctor(s) must inform you about your medical condition and what different treatments can do for you . Many treatments have serious side effects. Your doctor must give you information, in language that you can understand, about serious problems that medical treatment is likely to cause. Often, more than one treatment might help you, and different people might have different ideas on which is best. Your doctor can tell you the treatments that are available to you, but he/she cannot choose for you. That choice depends on what is important to you.

Q. Whom should I talk to about Advance Directives?

A. Before writing down your instructions, you should talk to those people closest to you and who are concerned about your care and feelings. Discuss your instructions with your family, your doctor, friends and other appropriate people, such as a member of your clergy or your lawyer. These are the people who will be involved with your health care if you are unable to make your own decisions.

Q. When do Advance Directives go into effect?

A. It is important to remember that these directives only take effect when you can no longer make your own health care decisions. As long as you are able to give “informed consent,” your health care providers will rely on YOU and NOT on your advance directives.

Q. What is “Informed Consent”?

A. Informed consent means that you are able to understand the nature, extent and probable consequences of proposed medical treatments, you are able to make rational evaluations of the risks and benefits of those treatments as compared with the risks and benefits of alternate procedures AND you are able to communicate that understanding in some way.

Q. How will health care providers know whether I have any Advance Directives?

A. All hospitals, nursing homes, home health agencies, HMOs and all other health care facilities that accept federal funds must ask whether you have advance directives, and if so, they must see that it is made part of your medical records.

Q. Will my Advance Directives be followed?

A. Generally, yes, if they comply with Florida law. Federal law requires your health care providers to give you their written policies concerning advance directives. It may happen that your doctor or other health care provider cannot or will not follow your advance directives for moral, religious or professional reasons, even though they comply with Florida law. If this happens, they must immediately tell you. Then they must also help you transfer within 7 days to another doctor or medical facility that will do what you want.

Q. Can I change my mind after I write Advance Directives?

A. Yes, at any time, you can cancel or change any advance directives that you have written. To cancel your directives, simply destroy the original document and tell your family, friends, doctor and anyone else who has copies that you have canceled them. To change your advance directives, simply write and date new ones. Again, give copies of your revised documents to all the appropriate parties, including your doctor.

Q. Do I need a lawyer to help me prepare Advance Directives?

A. A lawyer may be helpful and you might choose to discuss these matters with him/her, but there is no legal requirement in Florida to do so.

Q. Will my Florida Advance Directives be honored in another state?

A. The laws on advance directives differ from state to state, so it is unclear whether Florida advance directives will be honored in another state. Because advance directives are a clear expression of your wishes about medical care, it will influence that care no matter where you are admitted. However, if you plan to spend a great deal of time in another state, you might want to consider signing advance directives that meet all the legal requirements of that state.

Q. Will Advance Directives from another state be honored in Florida?

A. Yes. Advance directives executed in compliance with another state’s laws will be honored in Florida to the extent permitted by Florida law.

Q. What should I do with my Advance Directives?

A. You should keep them is a safe place where your family members can get to them. Do NOT keep the original copies in your safe deposit box. Give copies of these documents to as many of the following people as you are comfortable with: your spouse and other family members, your doctor, your lawyer, your clergy person, and any local hospital or nursing home where you may be residing. Another idea is to keep a small wallet card in your purse or wallet that states that you have advance directives and who should be contacted.

Living Will Declaration

Q. What is a “Living Will”?

A. A living will is a document that tells your doctor or other health care providers whether or not you want life prolonging treatments or procedures administered to you if you are in a terminal condition or a persistent vegetative state. It is called a “living will,” because it takes effect while you are still living.

Q. Is a “Living Will” the same as a “Will” or “Living Trust”?

A. No. Wills and living trusts are financial documents that allow you to plan for the distribution of your financial assets and property after your death. A living will only deals with medical issues while your living. Wills and living trust are complex legal documents, and you usually need legal advice to execute them. You do not need a lawyer to complete your Florida living will.

Q. When does a Florida Living Will go into effect?

A. A Florida living will goes into effect when:

1. Your doctor has a copy of it,

2. Your doctor has concluded that you are no longer able to make your own health care decisions, and

3. Your doctor and another doctor have determined that you are in a terminal condition or a persistent vegetative state.

Q. What are “life-prolonging” treatments?

A. These are treatments or procedures that are not expected to cure your terminal condition or to make you better. They only prolong dying. Examples are mechanical respirators that help you breathe; kidney dialysis, which clears your body of wastes, and cardiopulmonary resuscitation (CPR), which restores your heartbeat.

Q. What is a “terminal” condition?

A. A terminal condition is defined as an incurable condition for which administration of medical treatment will only prolong the dying process and without administration of these treatments or procedures, a condition in which death will occur in a relatively short period of time.

Q. What is a “persistent vegetative state”?

A. A persistent vegetative state means that a patient is in a permanent coma or state of unconsciousness caused by illness, injury or disease. The patient is completely unaware of himself/herself, his/her surroundings and environment, and to a reasonable degree of medical certainty, there can be no recovery.

Q. Is a Living Will the same as a “Do Not Resuscitate (DNR)” order?

A. No. A Florida living will covers almost all types of life-prolonging treatments and procedures. A “Do Not Resuscitate” order covers 2 types of life-threatening situations. A DNR order is a document prepared by your doctor at your direction and placed in your medical records. It states that if you suffer cardiac arrest (your heart stops beating) or respiratory arrest (you stop breathing), your health care providers are not to try to revive you by any means.

Q. Will I receive medication for pain?

A. Unless you state otherwise in the living will, medication for pain will be provided where appropriate to make you comfortable, and it will not be discontinued.

Q. Can my doctor be sued or prosecuted for carrying out the provisions of a Florida Living Will?

A. No. Florida law specifically states that no health care facility, doctor or any person acting under the direction of the facility or doctor is subject to criminal prosecution or civil liability and will not be deemed to have engaged in unprofessional conduct as a result of carrying out the provisions of a Florida Living Will.

Q. Does a Florida Living Will affect insurance?

A. No. The making of a living will, in accordance with Florida law, will not affect the sale or issuance of any life insurance policy, nor shall it invalidate or change the terms of any insurance policy. In addition, the removal of life-support systems, according to Florida law, shall not, for any purpose, constitute suicide, homicide or euthanasia, nor shall it be deemed the cause of death for the purposes of insurance coverage.

Q. Does a Florida Living Will have to be signed and witnessed?

A. Yes, you must sign (or have someone sign the document in your presence and at your direction, if you are unable to sign) and date the living will.

Florida does not place any restrictions on who can witness your living will, except that at least one witness must not be a blood relative or your spouse.

Designation of Health Care Surrogate

Q. What is a Designation of a Health Care Surrogate (DHCS)?

A. A DHCS is a legal document that allows you (the “principal”) to appoint another person (the “attorney-in-fact” or “surrogate”) to make medical decisions for you if you should become temporarily or permanently unable to make those decisions yourself. The person you choose as your attorney-in-fact does not have to be a lawyer.

Q. Whom can I select to be my Surrogate?

A. You can appoint almost any adult to be your surrogate. You should select a person(s) knowledgeable about your wishes, values, religious beliefs in whom you have trust and confidence and who knows how you feel about health care. You should discuss the matter with the person(s) you have chosen and make sure that he/she (they) understand and agree to accept the responsibility.

You can select a member of your family, such as your spouse, child, brother or sister, or a close friend. If you select your spouse and then become divorced, the appointment of your spouse as your surrogate is revoked.

Florida law does not place any restrictions on who you can appoint as your surrogate. However, it is usually not a good idea to appoint your treating doctor, his/her employees, the owner or operator of a health care facility in which you are a resident or any of his/her employees. This is due to a possible conflict of interest between being your surrogate and having a direct bearing on the kind of health care you will or will not receive.

Q. When does the DHCS take effect?

A. The DHCS only becomes effective when you are temporarily or permanently unable to make your own health care decisions and your surrogate consents to start making those decisions. Your surrogate will begin making the decisions after your doctors have decided that you are no longer able to make them. Remember, as long as you are able to make treatment decisions, you have the right to do so.

Q. What decisions can my Surrogate make?

A. Unless you limit his/her authority in the DHCS, your surrogate will be able to make almost every treatment decision in accordance with accepted medical practice that you could make if you were able to do so. If your wishes are not known or cannot be determined, your surrogate has the duty to make decisions in your best interests in the performance of his/her duties. These decisions can include authorizing, refusing or withdrawing treatment, even if it means that you will die. As you can see, the appointment of a surrogate is a very serious decision on your part.

Q. Are there any decisions my Surrogate cannot make?

A. Yes. Florida law prohibits your surrogate from consenting to:

1. Certain experimental treatments;

2. Sterilization;

3. Electroshock therapy;

4. Psychosurgery;

5. Abortion; or

6. Voluntary admission to a mental facility.

Q. Can I have more than one Surrogate?

A. Yes. While you are not required to do so, you may designate alternates who may also act for you if your primary surrogate is unavailable, unable or unwilling to act. Your alternates have the same decision-making powers as the primary surrogate.

Q. Can I appoint more than one person to share the responsibility of being my Surrogate?

A. You should appoint only ONE person to be your surrogate. Any others you want to be involved with your health care decisions should be appointed as your alternates. If two or more people are given equal authority and they disagree on a health care decision, one of the most important purposes of the DHCS - to clearly identify who has the authority to speak for you - will be defeated. If you are afraid of offending people close to you by choosing one over another to be your surrogate, ask them to decide among themselves who will be your primary surrogate and select the others as alternates.

Q. Can my Surrogate(s) be legally liable for decisions made on my behalf?

A. No. Your health care surrogate or your alternates cannot be held liable for any treatment decisions made in good faith on your behalf. Also, he or she cannot be held liable for costs incurred for your care, just because he/she is your surrogate.

Q. Can my Surrogate(s) resign?

A. Yes. Your surrogate and your alternates can resign at any time by giving written notice to you, your doctor or the hospital or nursing home where you are receiving care.

Q. Does the DHCS have to be signed and witnessed?

A. Yes, you must sign (or have someone sign the DHCS in your presence and at your direction if you are unable to sign) and date it. Then it must be witnessed by 2 qualified adults.

The following people CANNOT witness your signature of the DHCS:

1. The person appointed as your health care surrogate; or

2. The person(s) appointed as your alternate health care surrogate(s).

In addition, at least one of the witnesses must not be related to you by blood or be your spouse.

Q. How is the DHCS different from the Living Will?

A. A living will only applies if you are terminally ill or in a persistent vegetative state, and unless you write in other specific instructions, it only tells your doctor what you do NOT want.

The DHCS also allows you to appoint someone to make any health care decisions for you if you cannot make them. It covers all health care situations in which you are incapable of making decisions for yourself. It also permits you to give specific instructions to your surrogate about the type of care you want to receive.

The DHCS allows your surrogate to respond to any medical situations that you might not have anticipated and to make decisions for you with knowledge of your values and wishes. Since the DHCS is more flexible, it si the advance directives most people choose. Some people, however, do not have someone whom they trust or who knows their values and preferences. These people should consider creating a living will.

Q. Which is better?

A. You may wish to have both or combine them into a single document that describes treatment choices in a variety of situations and names someone to make decisions for you should you be unable to make decisions for yourself.

Q. Does the State of Florida have a written position on Advance Directives?

A. Yes, the Office of Health Care Administrative has issued the following statement on advance directives. Although most of the information in the statement has been previously covered, we are reprinting the statement in its entirety.

“All adult individuals in health care facilities such as hospitals, nursing homes, hospice, home health agencies, and health maintenance organizations have certain rights under Florida law.

You have a right to fill out a paper known as “advance directives.” The paper says in advance what kind of treatment you want or do not want under special, serious medical conditions - conditions that would stop you from telling your doctor how you want to be treated. For example, if you were taken to a health care facility in a coma, would you want the facility’s staff to know your specific wishes about decisions affecting your treatment?”

Q. What should I do with my advance directives if I choose to have one?

A. Make sure that someone such as your doctor, lawyer or a family member knows that you have advance directives and where it is located. Consider the following:

- If you have designated a health care surrogate, give a copy of the written designation form or the original to them.

- Give a copy of your advance directives to your doctor for your medical file.

- Keep a copy of your advance directives in a place where it can be found easily.

- Keep a card or note in your purse or wallet that states that you have advance directives and where it is located.

- If you change your advance directives, make sure your doctor, lawyer and/or family member has the latest copy.

For further information, you may consult those in charge of your care.

This newsletter is designed to provide informative material of interest to our readers. Readers should not take or omit any action based solely on the basis of this newsletter as isolated circumstances may require action different from that described­ in this general orientation document. Appropriate legal advice or other expert assistance should be sought from a competent professional