Advance Directives, such as a Durable Power of Attorney, Florida Living Will, or Health Care Surrogate, help Florida residents have a say in medical treatment even when they are not physically able to make those decisions. 

Why do I need an Advance Directive?

Florida law says, “every competent adult has the fundamental right of self-determination regarding decisions about his or her health, including the right to choose or refuse medical treatment.” Advance Directives are one way to make sure this right is protected. 

If you do not have an advance directive in place and a physician determines that you cannot make health care decisions for yourself, the law requires that a Health Care Proxy be appointed. In order of priority, the doctor can choose a proxy who is a legal guardian, spouse, adult child, parent, adult siblings, adult relatives, or a close friend. If you do not have a Durable Power of Attorney, Florida Living Will, or Health Care Surrogate, someone who you do not want to make decisions for you may be appointed and/or your family and friends may not know your health care and end-of-life care preferences.

What is a Durable Power of Attorney?

A Durable Power of Attorney is a document that allows you to appoint an individual to make critical decisions on your behalf. It outlines how you want this person to handle your financial, medical, and legal affairs. It is a legally binding document that lists specifically what the individual can do and what they cannot do. Importantly, a Durable Power of Attorney remains in effect even if you are incapacitated. In contrast, a Power of Attorney that does not use the word “durable” will end if you become incapacitated.

What is a Living Will?

A Florida Living Will lets you state your wishes about health care if you are in a persistent vegetative state, have an end-stage condition, or develop a terminal illness. It also allows you to express your organ donation wishes. Your Living Will only goes into effect when your doctor determines that you can no longer make your own health care decisions. Creating a Living Will can be a relief to family members as they will know your decision to start, continue, or stop life-sustaining treatments. 

The Florida Living Will must comply with Florida Statutes Section 765.03 and must be properly executed and witnessed. At least one of the witnesses cannot be a blood relative or spouse.

What is a Health Care Surrogate?

A Health Care Surrogate is a legal document that names a representative who will make medical decisions for you and obtain medical records when you cannot make them yourself. Your surrogate may be a family member or a close friend whom you trust to make serious decisions.

The person you name as your surrogate should clearly understand your wishes and be willing to accept the responsibility of making health care decisions for you. 

There are certain types of decisions that your surrogate can make only if you have specifically authorized them. These include things such as experimental treatments and voluntary admission to a mental health facility. Florida law allows you to place any additional restrictions on your surrogate’s authority that you desire, such as restricting your surrogate’s authority to consent to the withholding or withdrawal of life-prolonging procedures. The Health Care Surrogate should also contain language granting your surrogate and other designated persons the right to receive your confidential medical information. This information is otherwise privileged, according to federal HIPAA laws.

What if I Change My Mind about an Advance Directive? 

You can always revoke your Florida Advance Directive. Florida law allows you to do so in the following ways: 

  • through a signed and dated writing showing your intent to revoke,
  • by physically destroying the original, or having someone destroy it for you in your presence at your direction,
  • by orally expressing your intention to revoke,
  • by executing a new Advance Directive that supersedes the older document. 

You should notify your health care provider and the people appointed in your new Advance Directive to ensure that your revocation is effective.

Everyone’s health care decisions are unique. Advance Directives help ensure your choices are respected, even when you cannot make them for yourself. If you do not have an Advance Directive in place or want to change your current call Advance Directive, call our experienced estate planning lawyers at Mortellaro Law today: 813-367-1500.

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