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.


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