What If You Don’t Have A Living Will?

What if you don’t have a living will? The State of Florida has an answer for that too. As estate planning lawyers like to say: “If you fail to plan, then the State has a plan for you, which you may not like.”

Florida Statute section 765.401 provides a list of persons who can act for you in order of priority if you are incompetent and have not executed an advance directive of if the designated surrogates are no longer available. There are eight classes of people listed starting with a judicially appointed guardian or guardian advocate. The next person in the list is a spouse, then an adult child or the majority of adult children reasonable available for consultation, and so on. The last person listed is a licensed clinical social worker.

The proxy is required to do what the patient would have done under the circumstances or, if they don’t know what the patient would have done, then they must consider the patient’s best interests. The proxy’s decision must be based on clear and convincing evidence of what the patient would have done or the patient’s best interest. The proxy must comply with Florida Statute section 765.305 which requires that a surrogate be satisfied that there is no reasonable probability that the patient will recover capacity so that he or she can exercise his or her own rights. And the surrogate must be satisfied that the patient is in an end-stage condition, persistent vegetative state, or terminal condition.

Florida Statute section 765.404 deals specifically with persons in a persistent vegetative state who have no advance directive, no evidence of what they would have wanted, and no one to act as their proxy. In such a case, a judicially appointed guardian must consult with a medical ethics committee to determine the patient’s best interests. Persons performing their duties under this section are immune from liability.

Even if your designated surrogates and alternates should become unavailable for any reason, a properly executed living will insures that your wishes are known to those who must make decisions for you when you are incapacitated and cannot do so yourself. In each case, a proxy or surrogate is charged with divining what you would have done, and a living will makes what you would have done obvious.

Copyright Notice:  All Rights Reserved Harry Thomas Hackney, P.A. 2008

What Is A Living Will? Part II

“Persistent vegetative state”, “end-stage condition”, and “terminal condition” are all defined logically enough in the definitions section of Chapter 765, which is found at Florida Statute section 765.101. We’ll take the definitions in alphabetical order. An “end-stage condition” is defined as:

an irreversible condition that is caused by injury, disease, or illness which has resulted in progressively severe and permanent deterioration, and which, to a reasonable degree of medical probability, treatment of the condition would be ineffective. Fla. Stat. section 765.101(4)

It would seem that this definition applies to terminally ill cancer patients, Alzheimer patients, patients with liver failure, and the like. It is important to note that the condition must result in “progressively severe and permanent deterioration.” Thus, despite one web commentator claimed, it would not apply to “an amputated finger” because that doesn’t cause “progressively severe and permanent deterioration.”

A “persistent vegetative state” is

a permanent and irreversible condition of unconsciousness in which there is:

(a) The absence of voluntary action or cognitive behavior of any kind.

(b) An inability to communicate or interact purposefully with the environment.

Fla. Stat. section 765.101(12)

This seems like another straight forward definition but as we’ve seen, it can be a subject of substantial debate. Most of us think of an “unconscious” person as one who is “out cold” or comatose. However, there are varying degrees of “unconsciousness” that don’t fit our expectations.

Last, but not least, we have the definition of “terminal condition,” which is

a condition caused by injury, disease, or illness from which there is no reasonable medical probability of recovery and which, without treatment, can be expected to cause death. Fla. Stat. section 765.101(17)

Unfortunately, understanding these definitions is at the intersection of law and medicine. You may want to research these definitions and discuss them with your doctor while you can. Most lawyers don’t have medical degrees and may not be able to as thoroughly discuss their meaning as a physician.

The recommended form for a living will is found at Florida Statute section 765.303. Note that the form is suggested and not required. You can use another form or modify the one suggested. However, it is usually my feeling that you cannot go wrong using the statutory form. The statutory form will have been litigated and considered in the courts. Any time that you alter such a form you may add new questions and considerations. It also contains most of the statutory considerations and requirements. It is important to note that the living will by its terms applies only when you are “dying” and in such a circumstance directs that your death “not be artificially prolonged” provided that you have one of the three conditions defined above and your “attending or treating physician and another consulting physician have determined that there is no reasonable medical probability of [your] recovery from such condition.” Thus, two physicians must agree that you meet the criteria for your death to not be artificially prolonged. I believe that most hospitals also have an ethics committee that will review this decision although I am no expert on hospital procedures.

Here is a key consideration that is perhaps overlooked in the focus on other issues:

It is my intention that this declaration be honored by my family and physician as the final expression of my legal right to refuse medical or surgical treatment and to accept the consequences for such refusal.

You are making it clear to your family what your wishes are and you are directing them to honor them. This can be important during a very emotional time. It can also be a source of strength for the person who has been named the surrogate and who must implement your decision. If you are unable to do so for yourself, then they can point to this language and say, “This is what he/she wanted and he/she asked us to honor this decision.”

The next provision names an individual who is to implement your decision if you “have been determined to be unable to provide express and informed consent regarding the withholding, withdrawal, or continuation of life-prolonging procedures.” This is your surrogate to act for you if you cannot. Note that this person only acts for you if you have been determined to be not able to do so for yourself. Again, I believe that your physicians and the ethics committee would come into play to determine whether you have the capacity to act for yourself. You should give some consideration to your surrogate. It needs to be someone who will represent you and your wishes when the time comes. Someone who can stand up to pressure if need be.

So, should you have a living will? I think the answer unquestionably is “yes” assuming that you have any wishes one way or the other as it concerns the matters addressed by a living will. If you are concerned that you may find yourself in a situation where you are dying, unable to speak for yourself, and don’t want your death artificially prolonged, then it is necessary to have a living will.

Copyright Notice: All Rights Reserved Harry Thomas Hackney, P.A. 2008