Sunday, April 10, 2011

Florida Advance Health Care Directives

By Joseph S. Karp, Florida Bar Certified Elder Law Attorney

As a Florida elder law attorney, I find many people are confused about Advance Health Care Directives. Of course, that could be because so many people prefer to avoid the topic altogether!  And on a personal level, I understand that:  no one really wants to contemplate the possibility of being disabled and unable to communicate his own health care wishes! Little wonder then that there's a big disconnect between what Americans say and what they do about health planning. According to a 2006 Pew Research study, most Americans think they should be free to manage their own end-of-life decisions, without government interference. But how many of them have a Living Will that would keep them in control of their medical destiny? A paltry 29%.

There was a big uptick in interest in Living Wills and other Advanced Health Care Directives following the Teri Schiavo incident in my home state, but  that sense of urgencyseems to have tapered off. To remind the public of the importance of making plans for health care decisions, April 16 has been declared National Health Care Decisions Day. It's the fourth annual, actually.

Here's a brief explanation of what each type of Advance Health Care Directive does, and the situations to which each apply.

Living Will 

Florida Statutes section 765.03 lays out the rules for Living Wills. A Living Will is not just a "pull the plug" document as many believe: It documents the kinds of treatments you don't want - as well as those you do want - if you are in a terminal or end-stage condition, or in a persistent vegetative state. 

Health Care Power of Attorney

The Health Care Power of Attorney allows you to designate another person to make your medical decisions if you become incapacitated and cannot express your own desires for medical treatment. The disability need not be permanent - for example, you could be under general anesthesia. The Health Care Power of Attorney should also contain language granting your agent and other designated persons the right to receive your confidential medical information. This information is otherwise privileged, pursuant to the federal HIPAA laws.

Do Not Resuscitate Order

A DNRO is signed by a physician stating that you have a terminal illness. The document requests that no resuscitative techniques be used in the event of cardiac or respiratory arrest. .

Pre-Need Guardian 

Guardianship is a court proceeding in which a guardian exercises the legal rights of the incapacitated person who is unable to exercise his own rights.  A Guardian may be an individual, or an institution such as a bank trust department, with the authority granted by the court to care for an incapacitated person and/or the incapacitated person’s assets. You may name a “pre-need” guardian who you wish to make your health care decisions if you ever become the subject of a guardianship. The Florida court genearlly honors such a request unless the pre-need guardian you've designate is found to be unqualified or does not wish to serve.