Health Surrogates and Living Wills: Plan For Your Wishes

Regardless of your situation in life – whether you are single, married, live with a partner, friends or family members – having documents that appoint a specific person or persons to make medical decisions on your behalf can be one of the kindest acts you can do for your loved ones.

Imagine your loved one is in the hospital and unable to communicate. The medical professionals need permission or a decision to be made in order to move forward with your loved one's care. Imagine there are relatives of your loved one standing in the room with you, arguing with you, and they want the professionals to perform the exact opposite of what you know your loved one would want. Now imagine the professionals tell you the law says you have no authority to make a decision because your loved one never obtained the proper documentation to give you that authority.

There are two different types of authority one needs to give others to make medical decisions. One is a Healthcare Surrogate (or Health proxy), and the other is a Living Will.

Healthcare Surrogate

In Florida, the person you appoint to make your health and medical decisions for you is called a Healthcare Surrogate. You may also see it referred to as a Healthcare Proxy or Medical Proxy. If you cannot speak or are incapacitated, this document allows your appointee to make decisions for you regarding your care, treatment, medication, surgical procedures, and other medically related issues. Your health proxy does not have to be a relative, but the proxy does need to be at least 18 years old.

Living Will

A Living Will is an advanced directive which gives your appointee instructions and authority to carry out a certain plan if a tragic situation should arise. Should you be in a condition where you have no brain activity and no chance of recovering, and you are being kept alive via artificial resuscitation and machines, your Living Will tells your appointee to turn the machines off. However, you may also make an advanced directive telling your appointee to do whatever necessary to keep you alive.

Florida Statutes section 765.101 defines three different medical conditions which are referenced in the Florida Statute's suggested form for a Living Will.

The End-stage Condition means 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.

The Persistent vegetative state means a permanent and irreversible condition of unconsciousness in which there is: the absence of voluntary action or cognitive behavior of any kind and an inability to communicate or interact purposefully with the environment.

The Terminal condition means 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.

There are certain circumstances, such as with Mrs.Terry Schiavo, when ventilators and machines are turned off but the person continues to breathe on their own. In Mrs. Schiavo's situation, she was kept alive for years with a feeding tube. A painful and public battle ensued between her husband and her parents to decide whether the tube should be removed and allow Terri to, essentially, starve to death. A judge ordered the removal, and she lived for many days before she died. Had she executed an advanced directive much of this could have been avoided, however, at the time it likely would not have mentioned withdrawal of food and water. This tragic situation lead to a change in Florida law which mandates Living Wills must state whether you wish for food and water to be withdrawn or whether you wish to receive food and water if you are in such a condition.

Everyone is unique in their beliefs, and the subject usually can make for a lively debate between people with opposing opinions. For a reference, you may wish to read the following articles for religious perspective. See this statement from the Papal Academy's JointDeclaration of the World Federation of Catholic Medical Associations and thePontifical Academy for Life on the vegetative state (17 to 20 March 2004) ; this page requires a browser translator. For a Jewish perspective on the subject of living wills, withdrawing nutrition and life support and the Jewish Faith, you may wish to read the article PalliativeCare/Spirituality by Rabbi Elliott Dorff, Ph.D. of the American Jewish University.

The subject of ending, or not ending, life support and nutrition is delicate. One should think carefully and gather as much information from professionals -including one's physician, attorney and spiritual advisor (if applicable) - when making a decision regarding this advanced directive.

Many times, people would rather their family not be in a position of authority at all. For people in that situation it is most critical that they have these documents in place because the law only recognizes kin as having an authority to make decisions. In other situations such as the Schiavo case, the individuals with authority are the ones arguing and preventing a decision to be made. With the proper documentation appointing a person or persons to make these decisions for you, the medical professionals caring for you will know exactly who to turn to for these decisions and your family will clearly know your wishes so delays and unnecessary arguments during a tragic time can be avoided.

Finally, when making a decision as to who you wish to appoint it is always best to discuss your decision to give them this authority first. You do not want that person to be blindsided with the information in the midst of a difficult situation. Talk with your person (and alternate appointee) and make sure they understand not only the gravity of what you are asking them to do, but also exactly what sort of care and decisions you would wish for them to make. Some people find these subjects uncomfortable to talk about, but the more open you are about your wishes, the more information they will have to draw from during a potentially difficult time.

If You Are 18 or Older, Make Sure You Have These Documents

If you are 18, or older, in addition to a Will you should have a General Durable Power of Attorney, Healthcare Surrogate and a Living Will.

These three (3) documents give your authorization to your appointee so they may make medical and financial decisions for you if you are, for whatever reason, mentally incapacitated or otherwise unable to make those decisions for yourself. You may not be mentally incompetent, but perhaps you have been rendered unable to communicate through an accident or medical coma.

Hospitals and physicians do not necessarily act immediately upon decisions your spouse, parents or other close relatives make for you. Often relatives argue, such as the parent or spouse of a patient arguing with the adult child of a patient. Other times patients have life/domestic partners which the hospital may not recognize as having the legal authority to make these medical decisions. To protect themselves, the medical personnel will require legal authority.

Likewise, with financial decisions, unless the other person is a co-owner or authorized signator on your accounts at a bank, the bank will not discuss your accounts with your loved ones without proper authority. In other situations, one might have an accident due to a third party's malicious act or negligence, and the injured person's loved ones need to get payment from the third party for medical expenses. The loved ones will need authority to do that if the injured person cannot speak for themselves; as an adult, the parent or loved one needs to show proof of the express authority to act on the injured person's behalf.

Without these documents, in some situations your loved ones may be forced to go to court and open a guardianship for you so they can be appointed as your guardian and gain the authority to make these decisions. This can be costly and extremely time consuming. Once a guardianship is opened and a guardian appointed, your guardian must ask the court permission to withdraw any funds or make other important decisions. The guardian is responsible to the court for yearly reports regarding the financial accounts and your physical well-being. The financial accountings will be audited by a court appointed accountant. In some situations, guardianships are useful to protect the "ward" (the minor person or person unable to act for themselves), but in many situations are not needed if the proper people have authority to act. These three documents can help your loved ones avoid this hassle during a difficult and painful time.

Young people think they will live forever, and of course, that is not true. Once one becomes an adult, their parents no longer have the authority to make certain decisions for their children. It is best to "plan for the worst and hope for the best".

These documents only have authority while you are alive. Once you die, your authority dies with you, becoming void at the time of your death.