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Spring 2014
IN THIS ISSUE
d&G Lawyer News
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End of Life Planning
By: Kristin K. Morris
End of life issues are delicate issues that not only cause stress and heartache for family and friends of the patient, but can also lead to controversy in the courts. End of life issues often give rise to disputes requiring court intervention when a patient becomes incompetent to make his own medical decisions but he has not made his wishes for medical treatment known in a way that is enforceable by law.
Recently, end of life issues have made headlines in the United States and Canada. The controversy in
each of these high profile cases surrounded a hospital’s decision to keep an unconscious pregnant woman
on life support. In Texas, the family wanted the support removed, but the hospital refused. The dispute
eventually made its way to court, where a judge ordered the life support be discontinued.
Less high profile disputes regarding end of life medical decisions frequently occur when a patient
nearing the end of his/her life is involved. These disputes often arise between or among family
members, living wills, surrogates, proxies, the medical facility, the medical provider or instructions
in a living will. To ensure a patient’s wishes are properly carried out and minimize the potential
for disputes, individuals should create some type of advance directive in accordance with their state’s
laws. This article will examine the procedure for creating specific types of advance directives in Florida.
First, the guiding principle governing end of life decisions in Florida is found in Florida
Statutes Section 765.102 which states, “Every competent adult has the fundamental right of
self-determination regarding decisions pertaining to his or her own health, including the right
to choose or refuse medical treatment. This right is subject to certain interests of society,
such as the protection of human life and the preservation of ethical standards in the medical profession.”
As a general rule, when a question arises as to an incompetent patient’s care, the decision
makers and care providers should adhere as closely as possible to the wishes of the patient
or what the patient would have wanted. But how does the patient ensure his wishes are known and carried out?
Creating Enforceable Advance Directives while Competent
In Florida, a competent individual has a variety of choices to ensure that his/her wishes
are carried out should they lose capacity to make their own medical decisions at a later time.
These choices are generally referred to as advance directives. An advance directive is a statement,
written or oral, by the patient that provides express instruction as to any aspect of
the patient’s care.1
The statement or document must be witnessed by two witnesses, at least one of whom cannot be a
spouse or blood relative.2 Id. Advance directives include a variety of legal concepts including:
designation of health care surrogates, living wills, anatomical gifts, durable powers of attorney,
do not resuscitate orders, and health care proxies.
Health Care Surrogate
One type of advance directive is naming a healthcare surrogate. A health care surrogate is a
competent adult that the patient expressly designates to make health care decisions on behalf of
the patient upon the patient’s incapacity.3 To be valid, the designation must be in writing, and
signed by the principal in the presence of two witnesses. An exact copy of the writing should be
provided to the designated surrogate.4
Living Will
Another type of advance directive is a living will. A living will is a written document or
oral statement made by the patient and witnessed by two individuals. The living will provides
instructions for the surrogate, proxy or provider concerning the use of life-prolonging procedures.
5
The patient must notify the provider that a living will has been made.6 A living will establishes
a rebuttable presumption of clear and convincing evidence of a patient’s wishes.7
Anatomical Gift
An anatomical gift is a donation of all or part of a human body which takes effect after the donor’s death.
8
The donation is to be used for transplantation, therapy, research, or education. Id. A valid anatomical gift
can be made by a person by: (a) signing an organ and tissue donor card; (b) registering online with the donor
registry; (c) signifying intent to donate on a driver’s license or identification card; (d) expressing a wish
to donate in a living will or other advance directive; (e) executing a will that states the testator wishes
to make an anatomical gift; or (f) expressing a wish to donate in a document that is signed by the donor, in
the presence of two witnesses, and signed by the two witnesses in the donor’s presence.
9 Anatomical gifts can
be made to (a) procurement organizations or accredited medical or dental schools, colleges, or universities for
the purpose of education, research, therapy, or transplantation; (b) a specific individual identified by name
for therapy or transplantation; or (c) the anatomical board or a non-transplant anatomical donation organization,
for donation of the whole body for medical or dental education or research.10 Anatomical gifts made by qualified
donors and not revoked before the death of the donor are irrevocable after the death of the donor.
11
Durable Power of Attorney
A durable power of attorney is a writing that grants authority to an agent to act in the
place of the principal and contains the following clause: “This durable power of attorney is not
terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida
Statutes,” or similar words that show the principal’s intent that the authority conferred is
exercisable notwithstanding the principal’s subsequent incapacity.12 To be enforceable, the
durable power of attorney must: (a) designate an agent who is a natural person 18 years of age
or older or a financial institution that has trust powers, has a place of business in this state,
and is authorized to conduct trust business in this state; and (b) be signed by the principal and
two subscribing witnesses and be acknowledged by the principal before a notary public.13
Do Not Resuscitate Order
A “Do Not Resuscitate” (DNR) order is an order that resuscitative efforts are not to be
undertaken in the event that a patient becomes unresponsive. To be valid, it must be
ordered by the attending physician and consented to by the patient, surrogate or proxy.14
Health Care Proxy
A health care proxy arises when there is no advance directive or surrogate designation.
A health care proxy is a competent adult who has not been expressly designated to make
health care decisions for the patient upon the patient’s incapacity, but who is authorized
by law to make health care decisions for the patient upon the patient’s incapacity.15 The
order of priority for proxies is: (1) the judicially appointed guardian advocate or the person; (2)
the patient’s spouse; (3) the adult child of the patient or if more than one adult child, a majority
of the adult children; (4) a parent of the patient; (5) the adult sibling of the patient who
has exhibited special care and concern for the patient; or (6) a close friend of the patient.
16
Individuals have a variety of means they can use to ensure that their own wishes are carried
out at the end of their life, including designation of health care surrogates, living wills,
anatomical gifts, durable powers of attorney, do not resuscitate orders, and as a last resort,
health care proxies. This article is just a brief summary of the ways individuals can ensure
they dictate their own end of life care.
If you have any questions regarding end
of life care, please contact Pat McNamara at pmcnamara@dgfirm.com or Kristin Morris
at kmorris@dgfirm.com.
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1 §765.101, Fla. Stat.
2 Advance directives can be used in other situations other than for end of life or life prolonging procedures. An advance directive executed in another state in compliance with the laws of that state or the State of Florida is validly executed and enforceable. §765.112, Fla. Stat. An advance directive can be amended or revoked by the patient through: revocation in a signed and dated writing; the patient or an actor on the patient’s behalf physically cancelling or destroying the previous advance directive; the patient’s oral expression of intention to amend or revoke; the execution of a subsequent advance directive that is materially different from the previously executed advance directive; and dissolution or annulment of marriage. The amendment or revocation of an advance directive is effective when communicated to the surrogate, health care provider or health care facility. §765.104, Fla. Stat.
3 §765.101, Fla. Stat.
4 §765.202(1), Fla. Stat.
5 §765.304, Fla. Stat. Life prolonging procedure means any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function. The term does not include the administration of medication or performance of medical procedure, when such medication or procedure is deemed necessary to provide comfort care or alleviate pain.
6 §765.302, Fla. Stat.
7 §765.302(3), Fla. Stat.
8 §765.511, Fla. Stat.
9 §765.514, Fla. Stat.
10 §765.513, Fla. Stat.
11 §765.512(1)(b), Fla. Stat.
12 §709.2012 and §709.2014, Fla. Stat.
13 If the principal is unable to sign the power of attorney, the notary public before whom the principal’s oath or acknowledgment is made may sign the principal’s name on the power of attorney. §709.2015, Fla. Stat.
14 §401.45, Fla. Stat. and Rule 64J-2.018, F.A.C.
15 §765.101, Fla. Stat.
16 §765.401, Fla. Stat.
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