In terms of Florida law, you are given the right to make your own health care decisions, including decisions to reject or discontinue life-prolonging treatment. However, when the time comes to make these decisions, you may no longer have the capacity to do so. An advance directive allows you to set out your wishes pertaining to your future medical treatment, giving you peace of mind that your preferences will be respected by medical professionals in the unfortunate event that you are no longer able to voice them yourself. There are several different types of advance directives, and it is important to understand the role of each before you begin your incapacity planning journey.
The Importance Of Incapacity Planning
You’ve probably heard of ‘estate planning’, but have you given any thought to incapacity planning? While estate planning involves planning for the distribution of your assets upon your passing, incapacity planning involves preparing for the unfortunate possibility that you may one day no longer be able to make your own health care decisions. Incapacity planning should be a priority no matter how old you are: while Alzheimer’s and dementia, for example, are more likely to impact older people, an incapacitating motor vehicle accident could sadly happen at any age. Incapacity planning also covers scenarios in which you are terminally ill, near the end of your life, or are incapacitated due to stroke, coma or mental illness.
Incapacity planning is important not just for your own sake, but for the sake of your loved ones. They will have much greater peace of mind knowing that the medical decisions being made for you are ones that you yourself agreed to in advance. Remember, if you do not make an advance directive, your doctors will look to your spouse, your adult children, your parents, or your siblings (in that order) to make decisions concerning the treatment you receive. This places your loved ones in an emotionally stressful predicament – one that can be avoided by setting out your wishes beforehand in an advance directive.
What Is An Advance Directive?
Advance directives are the legal instruments at the heart of incapacity planning. Essentially, they are legal documents that record your choices about medical treatment in certain circumstances, in the event that you are unable to make or articulate these choices yourself. Advance directives only become ‘active’ when you are no longer able to make your own health care decisions and give ‘informed consent’ to treatment. Up until that point, your doctors will continue to take instructions from you directly. Florida law recognizes two advance directives: a living will declaration, and a health care surrogate designation.
Living Will Declaration
A living will declaration allows you to deal with a range of future medical possibilities in a single document. Its primary function is to indicate to doctors whether you want to be given life-prolonging treatments if you are in a terminal condition, end-stage condition or persistent vegetative state. ‘Life-prolonging treatments’ are treatments that will keep you alive but are not expected to cure you or make you better. A common example is the use of a medical respirator or kidney dialysis. Typically, a living will will set out whether you want to be put on a ventilator to stay alive, whether you want to be given fluids and nutrition artificially when you cannot drink or eat on your own, and whether you want to receive morphine or other medications to ease pain and discomfort. A living will can also be used to indicate whether you want your organs or tissues to be donated after your passing.
A living will only comes into effect when your doctor has a copy of it on record, they have determined that you are no longer able to make your own health care decisions, and your doctor, together with one other doctor, has determined that you are in a terminal or end-stage condition, or in a persistent vegetative state. A terminal condition is an incurable condition that will result in death in the absence of life-prolonging treatments, whereas an end-stage condition is an irreversible condition (caused by injury, illness or disease) that will result in severe deterioration and incapacity, and medical treatment would not be able to prevent this deterioration. In contrast, a persistent vegetative state is a permanent and irreversible state of unconsciousness caused by injury or illness.
Health Care Surrogate Designation
It is difficult to plan for every possible medical scenario in your living will. For this reason, it is advisable that you also execute a health care surrogate designation. This document appoints a trusted individual – a family member or close friend – to make medical decisions on your behalf if you become incapacitated. As with a living will, the designation only takes effect when your doctor has determined that you are either mentally or physically unable to make and communicate your own health care decisions. Your health care surrogate will give informed consent to medical procedures (or refuse such procedures) on your behalf. It is important that you appoint someone who you trust and who has the mental fortitude to carry out your wishes even when it is emotionally difficult for them to do so.
Do Not Resuscitate Orders
A Do Not Resuscitate Order (DNRO) is a form that you can complete that indicates that you do not wish to be resuscitated in the event of cardiac or respiratory arrest (ie. your heart stops beating or you stop breathing). A DNRO form is signed by your doctor and placed in your medical records for future reference. Note that you do not need an advance directive to have a DNR order in place.
Drafting Your Advance Directives
You do not need the assistance of a lawyer to draft an advance directive. However, to ensure that your advance directive clearly sets out your wishes in a legally valid way, it is best to consult with a wills and estates lawyer. They will help you to consider the many medical scenarios that your living will and health care surrogate designation need to cover, will talk you through any concerns you may have, and will ensure that your advance directives are executed and witnessed by the appropriate individuals. Remember that advance directives can be amended at any time, and ideally should be updated when your medical circumstances change.
A wills and estates lawyer can also help you prepare additional legal documents that will be useful in the event of your incapacity, such as a durable Power of Attorney. This is a legal document that will give a trusted individual the authority to make decisions concerning your finances and legal affairs while you are incapacitated.
Experienced Estate and Incapacity Planning Lawyer in Coral Springs, FL
Planning for the event of your incapacity will give you peace of mind that your medical wishes will be respected and that your family will not be tasked with making an emotionally distressing decision without your guidance.
At the Law Offices of Gary I. Handin, P.A., we have assisted countless individuals in Coral Springs and beyond to execute advance directives and related legal documents. With our wealth of experience in estate planning and our extensive knowledge of Florida’s advance directives legislation, we are your first call as you begin your incapacity planning journey. Contact us at 1-877-815-4560 today to arrange a consultation or find out more about our legal services.