Every competent adult has the fundamental right to make decisions about their own health, including the right to choose or refuse medical treatment. If you become incapacitated and can no longer make your own decisions, “advance directives” are helpful tools to enforce your health care wishes. Properly executed advance directives allow you to make decisions about your medical, behavioral, and mental health before you are declared medically or legally incapacitated.
An advance directive is a written legal document or oral statement that tells your loved ones, caregivers, and medical providers about your wishes regarding your health care or health information. It tells whether you would like to receive life-prolonging procedures, such as medical, behavioral or mental health treatments. Health care directives include the following:
- Designation of Health Care Surrogate;
- Living Will, also known as Life-Prolonging or End-of-Life Instructions; and
- Anatomical Gifts. (anatomical gifts include organ donation)
What Are Your Rights?
In Florida, you have a fundamental right to determine the type of medical, behavioral and mental health care you would like to receive when you are very sick or unable to make decisions in the moment. There are many laws that affect the process of making health care decisions for yourself, which include:
Florida Health Care Surrogate Act as outlined in Florida Statutes §§765.201-205
The Life-Prolonging Procedure Act of Florida as outlined in Florida Statutes §§765.301-309
Anatomical Gifts, such as organ or tissue donation (Florida Statutes §§765.10-547)
Failure to have Advance Directives (Florida Statutes §765.401 and §765.404)
The Florida Guardianship Law (Florida Statutes, Chapter 744) Guardianship is when you are appointed a person to watch over your estate after you are no longer able to make good decisions for yourself.
Florida Probate Code, Part IV (Expedited Judicial Intervention Concerning Medical Treatment)
Florida Power of Attorney Act (Florida Statutes, Chapter 709)
Denial of Emergency Treatment – also called, Do Not Resuscitate Order (Florida Statutes §401.45)
If you do not have an advance directive, Florida law allows the appointment of a medical proxy as outlined in Florida Statute 765.401.
What Do You Need to Do?
- Sign an organ and tissue donor card;
- Register online with the donor registry, authorized by Florida law;
- Sign an intent to donate on your Florida driver’s license or identification card. (Any revocation, suspension, expiration, or cancellation of your driver’s license or identification card does not invalidate the gift);
- State your desires in an advance directive;
- State your desire in a Last Will and Testament.
A Designation of Health Care Surrogate gives your designated health care surrogate, also called a “health agent,” the power to make healthcare decisions for you when you cannot do it for yourself. This designation takes effect while you are still living and ends at your death. You may provide your health care surrogate with instructions about any medical, behavioral, or mental health treatment you do or do not want when you are not able to make those decisions for yourself, along with instructions about any anatomical gifts, such as organs or tissue, you would like to make upon our death.
A health care surrogate’s decision does not replace your prior instructions from when you were still competent to provide them. Consider designating an alternate health care surrogate in case your primary surrogate cannot fulfill the duty due to illness, death, refusal, or other reasons.
A Living Will expresses your intention concerning whether to have the natural death process artificially prolonged by medical procedures. A Living Will takes effect while you are still living when 2 medical doctors determine that you have a terminal condition, an end stage condition or in a persistent vegetative state AND there is no chance of survival without artificial intervention.
You can include specific instructions about any treatment you want or do not want to receive, such as whether you would like to be an organ donor, receive hospice care, or make an anatomical gift.
Because this is the last document that your family sees before death, consider adding language regarding your wishes related to your funeral, such as your desire to be cremated or buried, whether you have any pre-paid funeral plans, your wishes regarding a burial plot, and where you want your ashes to go if you are cremated.
Decide whether you would like to make an anatomical gift. An anatomical gift is your desire to leave all or part of your body for medical or scientific research, which only takes effect upon your death. You may make an anatomical gift in the following ways:
The gift becomes effective upon the death of the testator (the person that created the Will) without waiting for probate. If the Will is not probated or if it is declared invalid for testamentary purposes, the gift is still valid to the extent that it has been acted upon in good faith.
Do Not Resuscitate Order (DNRO) is a written legal document, on a form as required by law, for people who do not wish to be resuscitated in the event of a respiratory or cardiac arrest. This legal document is not an advance directive and can only be issued by a licensed physician pursuant to Florida law. See Florida Statutes §401.45 and §765.110; see also Florida Administrative Code, Chapter 64J-2.018.
An alternative to an advance directive is a power of attorney expressly giving your agent the power to make health, behavioral and/or mental health decisions. As a power of attorney is a complex legal document with severe consequences, please consult an attorney before executing one.
If you become incapacitated and a court of law appoints you a legal guardian, your advance directives should remain legally effective. If you do not complete an advance directive, Florida law outlines the process of appointing you a medical proxy. A medical proxy appointed by the court may not be aware of your wishes.
Your advance health care directives may be modified, canceled, or revoked by you at any time. Revocations and modifications should be written, signed, and dated by you. However, Florida law allows you to change an advance directive by oral statement, physical destruction of the advance directive, or by writing a new advance directive.
An advance health care directive completed in another state, as described in that state’s law, may be honored in another state. If you relocate from Florida, check with a licensed attorney in your new home state to determine if the Florida advance health care directives are valid in your new home state.
What to Consider Before Taking Action?
- Florida Health Care Surrogate Act is outlined in Florida Statutes §§765.201-205
- The Life-Prolonging Procedure Act of Florida is outlined in Florida Statutes §§765.301-309
- Anatomical Gifts (Florida Statutes §§765.10-547)
- Failure to have Advance Directive is outlined in Florida Statutes §765.401 (Medical Proxy) and §765.404 (Persistent Vegetative State)
- The Florida Guardianship Law (Florida Statutes, Chapter 744)
- Florida Power of Attorney Act (Florida Statutes, Chapter 709)
- Florida Statutes §401.45 (Denial of Emergency Treatment – re Do Not Resuscitate Order)
Making health care decisions is a serious responsibility and may have legal consequences. Whom do you trust to honor your wishes? Who is mentally capable of exercising your wishes? In case of an emergency, can a medical provider contact them?
Prior to drafting your document, ask your trusted loved one if they will uphold your desires and will accept the appointment. Sometimes, your loved ones will refuse for a certain amount of time. Your health surrogate does not have to reside in Florida.
Before executing your advance health care directives, confirm that your designated health care surrogate agrees to take this responsibility and discuss your desires.
After executing your advance health care directives, give a copy to your doctor, frequent hospital, and your health care surrogate. Keep the original with your other important documents, such as your passport, Will, deed, marriage certificate, and DD-214. If you keep your documents in a safe deposit box, you may want to keep copies at your house. Many institutions will require a court order before opening a safe deposit box outside the presence of the owner/person with primary access.
Consider making a digital copy of your advance directive for an occasion when you are not near the physical form.
The Florida Bar: https://www.floridabar.org/public/consumer/consumer003/
Florida Administrative Code 64J-2.018 (Do Not Resuscitate Order): https://www.flrules.org/gateway/ruleno.asp?id=64J-2.018&Section=0
Florida Statutes:
Florida Probate Code, Part IV (Expedited Judicial Intervention Concerning Medical Treatment) https://www-media.floridabar.org/uploads/2020/01/Probate-Rules-01-01-20.pdf
Military Power of Attorney (10 U.S. Code § 1044b): https://www.law.cornell.edu/uscode/text/10/1044b