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End of Life Planning Part II

As established in last quarter’s article, 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. §765.101, Fla. Stat. The statement or document must be witnessed by two witnesses, at least one of whom cannot be a spouse or blood relative. ⁱ 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 (DNRs); and health care proxies. This article will examine the proper procedure to follow when a patient has a valid advance directive.

A health care facility is required to follow a patient’s advance directive, and provide the patient with information about advance directives, but the facility cannot require the execution or waiver of an advance directive. However, the facility is not required to commit any act contrary to the facility’s or provider’s moral or ethical beliefs if: the patient is not in an emergency condition and the patient has received written information upon admission of the facility or provider’s moral and ethical beliefs. §765.1105, Fla. Stat. Thus, if a patient’s advance directive is contrary to the facility’s or provider’s moral or ethical beliefs, the facility or provider must make reasonable efforts to transfer the patient to a facility or provider who will follow the advance directive or treatment decision. Within 7 days, the provider or facility must either 1) transfer or pay for the costs of transfer to another facility that will carry out the advance directive OR 2) if the patient has been transferred, carry out the advance directive. §765. 1105, Fla. Stat.

When a surrogate or proxy is involved, the surrogate or proxy’s power is not invoked until the patient is deemed incapacitated. If the patient’s capacity is in question, the attending physician must first evaluate the patient and document the evaluation. While a second physician’s opinion is only required by statute in the event that the attending physician has a question as to capacity, obtaining the second opinion is always a good idea. §765.204, Fla. Stat. Upon determination of incapacity, the facility or provider will then notify the surrogate or proxy in writing that the surrogacy or proxy has commenced. §765.204, Fla. Stat. ⁱⁱ The surrogacy or proxy shall remain in effect until the patient regains capacity. §765.204, Fla. Stat. The surrogate or proxy is required to: make all health care decisions in accordance with the principal’s instructions, provide informed consent, make decisions that the principal would have made under the circumstances or in the best interest of the principal, and provide written consent when required. §765.205, Fla. Stat. The patient’s family, the health care facility, the provider or any other interested party may seek court intervention of a surrogate or proxy’s decision, if that person believes 1) the surrogate or proxy’s decision is not in accord with the patient’s known desires or provisions of the law; 2) the advance directive is ambiguous or the patient has changed his or her mind after execution of the advance directive; 3) the surrogate or proxy was improperly designated or appointed, or the designation of the surrogate is no longer effective or has been revoked; 4) the surrogate or proxy has failed to discharge duties or incapacity or illness renders the surrogate or proxy incapable of discharging duties; 5) the surrogate or proxy has abused powers or; 6) the patient has sufficient capacity to make his or her own health care decisions. §765.109, Fla. Stat.

Similarly, a provider or facility cannot operate under the terms of a living will until it is determined that 1) the principal does not have a reasonable medical probability of recovering capacity, 2) the principal has a terminal condition, an end-stage condition, or is in a persistent vegetative state; and 3) the limitations and conditions expressed orally or in a written declaration have been carefully considered and satisfied. §765.304, Fla. Stat. In determining whether the patient has a terminal condition, has an end-stage condition, or is in a persistent vegetative state or may recover capacity, or whether a medical condition or limitation referred to in an advance directive exists, the patient’s attending or treating physician, and at least one other consulting physician, must separately examine the patient. §765.306, Fla. Stat. The findings of each examination must be documented in the patient’s medical record and signed by each examining physician before life-prolonging procedures may be withheld or withdrawn. §765.306, Fla. Stat.

When the issue relates to foregoing life sustaining treatment, a surrogate may exercise a patient’s right to forego such treatment in the absence of a living will once the surrogate is satisfied the patient has 1) no medical probability of recovering and 2) an end-stage condition, a persistent vegetative state or the condition is terminal. ⁱⁱⁱ §765.305, Fla. Stat. In the event of a conflict between the living will and proxy or surrogate’s decision, the health care provider should adhere to the terms of the living will. In the event of a disagreement between the living will and surrogate/proxy, the health care provider should wait 7 days for a challenge to the proposed action and then proceed with the terms of the living will. §765.304(1), Fla. Stat.

A special circumstance arises when a patient is in a persistent vegetative state, and does not have an advance directive, there is no evidence of what the patient would have wanted, there are no family or friends available or willing to serve as proxy, and the determination of withholding or withdrawing life prolonging procedures is needed. In this situation, life prolonging procedures may be withheld or withdrawn if the person has a judicially appointed guardian representing his or her best interest with authority to consent to medical treatment and the guardian AND the person’s attending physician, in consultation with the medical ethics committee of the facility where the patient is located, conclude that the condition is permanent and that there is no reasonable medical probability for recovery and that withholding or withdrawing life-prolonging procedures is in the best interest of the patient. §765.404, Fla. Stat.

In conclusion, once a patient has a valid advance directive in place, the patient’s capacity is the key to invoking the terms of a valid surrogacy, proxy, or living will regarding life prolonging procedures. Once incapacity is determined, the terms of the advance directive should be followed by the healthcare provider.

If you have any questions regarding end of life care, please contact Kristin Morris at kmorris@dgfirm.com or (813) 229-2775.
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ⁱ 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.
ⁱⁱ A determination that a person lacks capacity to make health care decisions does not mean that the principal lacks capacity for all other purposes. §765.204(4), Fla. Stat.
ⁱⁱⁱ Treatments of pregnant patients in persistent vegetative states are governed by specific statutes in Florida. Specifically, unless the pregnant patient expressly gives, in writing, the proxy or surrogate the right to act, the surrogate or proxy cannot give consent for 1) abortion or 2) withholding or withdrawing life prolonging procedures prior to viability. §765.113, Fla. Stat.