October 1, 2015 Changes to Florida Health Care Surrogate Law

We have a guest post from attorney, Kim O’Neill of Campione & Hackney, P.A.  Kim recently joined Campione & Hackney as an associate. She is focusing on the areas of wills, trusts, estates, and probate. Kim recently took a look at some changes to Florida Statute Chapter 765 concerning health care surrogates (medical powers of attorney). Here is her synopsis of the recent changes:

Effective October 1, 2015 Florida state lawmakers made some significant changes with regard to the to the Florida Health Care Surrogate Laws. A health care surrogate is a “medical power of attorney” that allows you to appoint someone else to make medical decisions for you. There are two major changes every Florida resident should be aware of:

  • Fla Stat. 765.202(6) provides that an individual may elect to designate a health care surrogate who may act while the individual is still capable of making health care decisions, and
  • Stat. 765.2035 creates statutory authority for a parent, legal custodian or legal guardian to designate a health care surrogate who may consent to medical care for a minor.

Why do these changes matter? Previously, Health Care Surrogates only had the authority to act when the principal (i.e., the person appointing the health care surrogate) was incapacitated. Now, the principal has to make a decision when executing a Health Care Surrogate document:

  • Does the principal grant the Health Care Surrogate authority only after the principal is determined to be incapacitated OR
  • Does the principal grant the Health Care Surrogate authority to act while the principal is still capable of making health care decisions?

If the principal chooses the second option, the health care surrogate would still have authority if the principal is determined to be incapacitated.

But what happens if the principal has capacity and disagrees with the surrogate concerning a medical decision? The decision of the principal will control so long as the principal is still capable of making medical decisions. In other words, the appointment of a surrogate who is allowed to make decisions while the principal has capacity does not cause the principal to lose the power to make his or her own decisions.

The second major change gives statutory authority for parents to appoint someone else to serve as a Health Care Surrogate for their minor children. Previously, many were executing a power of attorney, to give a caregiver of a minor child the authority to consent to non-emergency medical care of the minor. After October 1, 2015, the only way to give the caregiver of a minor child the authority to consent to non-emergency medical care of the minor is through executing a Health Care Surrogate document. This is a great option for parents and legal guardians of minor children that travel frequently for work, are enlisted in the military, or are simply taking a vacation away from the children.




The Importance of a Health Care Surrogate

A client recently came to see me because her husband’s son from a previous marriage had himself appointed his father’s emergency temporary guardian. This was done with no notice to her, as allowed by Florida law. I recently received a distraught call from her because her husband was in the hospital, and she had just heard that her husband’s doctors would not discuss his condition with her. The Order appointing her stepson as emergency temporary guardian (ETG) gave him the right to make all health care decisions for his father and he had instructed them not to discuss her husband’s care with her. Just to make matters worse, the son who is now calling the shots had been estranged from his father.

The guardianship laws require that the judge shall determine whether the ward, prior to incapacity, has executed any valid” advance directive naming a health care surrogate. If an advance directive exists, then the judge is required to “specify in its order and letters of guardianship what authority, if any, the guardian shall exercise over the surrogate.” Generally, the judge will provide that the guardian shall have no authority over the health care surrogate pending further order of the court. See, Fla. Stat. sec. 744.3115 

It is unclear whether the client has a health care surrogate directive from her husband. If she has one, then we could probably get the judge to modify his previous order appointing the ETG. The judge could not modify or revoke her authority as the health care surrogate without finding grounds under Florida Statute section 765.105. Therefore, in all likelihood, she would have the right to make the health care decisions and to discuss her husband’s care with his doctors.

If there is no directive naming her as her husband’s health care surrogate, then the client may not gain back control of her husband’s health care. However, at a minimum, the judge will probably require that she be kept informed of her husband’s care and treatment.

This situation highlights the importance of proper estate planning, including a directive naming a health care surrogate.

Why Guardianship Avoidance Tools Don’t Always Work

I had some clients come in recently in need of a guardianship for a family member.  The family member was a retired professional.  He had all the right tools in place to avoid a guardianship — durable power of attorney, health care surrogate, and revocable living trust.  So why did he need a guardianship?  Because he was suffering from dementia and refused to cooperate with his family in making rational decisions that were in his own best interests.  Unfortunately, it seems to me that dementia often magnifies the worst personality aspects of some people.  When you combine a cantankerous, domineering personality with paranoia and delusion, it makes for a difficult situation.

A durable power of attorney lets you manage the person’s property, but not the person.  Sometimes I hear people say, “I’ve got power of attorney over my Aunt Ethel.”  No they don’t.  They have a power of attorney that allows them to deal with Aunt Ethel’s property.  A revocable living trust also allows the management of property but not of a person.  In the narrow area of health care and treatment decisions, a health care surrogate or medical power of attorney does give some control over the person assuming that third parties agree and cooperate.  Therein lies the rub.  Without an adjudication of incapacity, third parties my be reluctant to accept the authority of the attorney-in-fact or surrogate.  This is especially true if the incapacitated person insists that he or she is not incapacitated.  The presumption is that people are competent unless declared incompetent.

Sometimes the alleged incapacitated person has lucid moments or is able to “fake it” for significant periods of time.  This makes third parties even more leery of accepting instructions solely from the attorney-in-fact or surrogate.  Third parties who do not spend a lot of time with the incapacitated person are the most easily deceived.  Thus, you can plan and have all the right tools and still not avoid a guardianship.  The good news is that although you may not avoid a guardianship of the person, you may still avoid a guardianship of the property if you have a properly funded living trust in place.

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

What Is A Living Will? Part I

Florida Statute section 765.101(11) defines a living will as (a) a witnessed written document that a person has voluntarily signed or (b) a witnessed oral statement expressing instructions on life prolonging procedures. Of course, the Terri Schiavo case has shown us the efficacy of an oral statement.  In that case, the argument over whether she expressed such instructions and what they meant went on for years.   That single two part sentence does not do much to explain what a living will really is.  As is typical with legislation, we must look elsewhere to really understand what a living will is and why you would want one.

The public policy behind living wills and other “advance directives” is contained in Florida Statute section 765.102.  The legislature thankfully recognizes that it is a fundamental right of each person to make decisions regarding his or her own health, including the right to choose or refuse medical care.  Chapter 765 protects this fundamental right in the event a person is unable to express his or her own wishes due to incapacity by allowing the person to plan for incapacity.  That is, a person can express his or her wishes before the incapacity arises.  This is cheaper and less restrictive than a guardianship and allows the incapacitated person to immediately resume complete control once capacity is reestablished.

The incapacity requirement is an important point.  Many of my clients seem to fear that once they sign a living will they’ll lose control and that the living will is going to govern events even if they wish to fight their illness.  A living will only applies when you’re unconscious or otherwise lack capacity and you’re in a persistent vegetative state, an end-stage condition, or terminal condition.  Your fundamental right to choose or refuse treatment is your right so long as you have the capacity to express a wish. Furthermore, Florida Statute section 765.105 provides for an expedited judicial review under Florida Probate Rule 5.900 of any decisions made pursuant to an advance directive if one of six standards is met.

Part III of Florida Statute Chapter 765 deals specifically with the execution and contents of a living will.  Florida Statutes section 765.302(1) states:

(1)  Any competent adult may, at any time, make a living will or written declaration and direct the providing, withholding, or withdrawal of life-prolonging procedures in the event that such person has a terminal condition, has an end-stage condition, or is in a persistent vegetative state.

There it is!  That sentence describes what a living will is and when it is effective.  It is a written declaration or (because the definition of the phrase “living will” includes a witnessed oral statement) oral instructions directing that your life not be prolonged in the event that you have one of the three conditions listed.  “End stage condition”, “persistent vegetative state”, and “terminal condition” are defined at Florida Statute section 765.101, subparagraphs (4), (12), and (17) respectively.  A written living will must be signed in the presence of two witnesses who also sign their names to the document.  One of the witnesses must not be a spouse or blood relative of the person signing the living will.  If the person cannot physically sign his or her own name, then one of the witnesses can sign for the person in his or her presence as directed.

These requirements are interesting in that by definition a living will can include witnessed oral instructions.  The most likely “witnesses” to oral statements are your spouse and/or your blood relatives.  What is the likelihood that you’re going to have at least two witnesses?  For many people, this is likely to be a private matter although for the more gregarious among us (myself included) this could come up at dinner or around a campfire.  In any event, I would urge you to make sure that your wishes are unambiguously clear and in writing.  It is the responsibility of the person signing the living will to notify his or her treating physician of the living will.  If that person is unable to do so, another person may do it for them.  The living will is to promptly be made a part of a patient’s medical records.

We’ll consider the statutory definitions of “persistent vegetative state”, “end-stage condition”, and “terminal condition” in the next post along with other details, including the recommended form for a living will, and whether you should have a living will.

Copyright Notice:  All Rights Reserved Harry Thomas Hackney, P.A. 2007

Estate Planning For the Average American

This is the first post in a series that will explain some of the basics of estate planning and basic estate planning documents.  Many people put off estate planning because they associate it with their own death or they think it is too expensive, but estate planning isn’t just about the distribution of your assets after you are gone. It also isn’t just for the wealthy. In fact, it may be more important for the middle class because there won’t be enough money to correct a failure to plan after you are gone. It is cheaper to do it right the first time. Proper estate planning also takes into account how you will be taken care of if you become disabled. It also considers how to protect your assets for your own use and your hopes, dreams, and desires for your loved ones whether family, friends, or charities. Your estate plan will be built on a firm foundation by first considering your needs, then the needs of your family, ways to protect your estate, ways to grow your estate, and, finally, ways to minimize estate taxes, if applicable. Less than two percent (2%) of estates are subject to estate taxes.

Once upon a time, I might have said that you didn’t need an estate plan unless you had assets, property, or children. However, I have run into some situations that have convinced me that just about everybody needs an estate plan. It is possible for someone who never had any assets to have a large estate at death. How does this happen? A young father or mother could be killed in an accident with a well insured Coca-cola truck whose driver ran a stop light. Suddenly the not wealthy young father or mother has a substantial claim and a large estate. If the decedent was happily married to the other parent of the children, there may not be any problems. However, I have seen many situations like this where the couple was estranged. In the absence of a will, this often causes problems. On at least one occasion, I encountered a family where four of the five surviving “adult” children were mentally handicapped. The fifth was not much better. Their mother left a mobile home on some land and no will. This caused considerable problems. \

The Terry Schiavo tragedy is another example. If she and her husband had done any estate planning, chances are that they would have received Living Wills. There then would have been no doubt as to Ms. Schiavo’s wishes one way or the other. Many years of expensive litigation might have been avoided or shortened.. So now I think most people could benefit from estate planning.

Copyright Notice: All Rights Reserved Harry Thomas Hackney, P.A. 2007