Health Care Planning: Types of Advance Directives

There are several types of Advance Directives, each suited to a specific type of medical and legal situation. 

Living Will 

A Living Will specifies what kind of life-extending care you do and don't want if you are in a terminal or end-stage condition, or in a persistent vegetative state. This document does not actually state that you are in such a condition, but merely indicates what kinds of treatments you prefer if you ever are in such circumstances. Creating a Living Will can be a great kindness to family members, relieving them of the agonizing decision of whether to commence, continue, or terminate life-sustaining treatments.

A Living Will must comply with Florida Statutes Section 765.03 and must be properly executed and witnessed. One of the witnesses may not be a blood relative or spouse of the maker. If you execute a Living Will, remember that it won't do you or your family any good if it's squirreled away in a safe deposit box. Let your physicians and family know it exists; provide them with copies; and keep the original accessible.

Because the Living Will applies to only a narrow range of medical scenarios, it is not by itself sufficient protection for someone who wants to remain in control of his own medical destiny. 

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. Such a situation can arise not only as a result of permanent incapacity; it may be a temporary situation, for example, if you are 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

The Do Not Resuscitate Order (DNRO) is a document that must be signed by a physician and by you (or your health care power of attorney). The document requests that no resuscitative techniques be used in the event of cardiac or respiratory arrest. Note that emergency medical technicians must actually see this document in order to withhold resuscitation. Without seeing it, they are bound to administer CPR.

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 in a written instrument a “pre-need” guardian – i.e., the individual you wish to be named as your guardian in the event you become incapacitated.  The court is not bound to appoint your desired pre-need guardian to this job, but there is a presumption that the pre-need guardian shall serve unless the pre-need guardian refuses to act, or is found to be unqualified. 

Health Care Proxy 

What if an individual has failed to appoint his health care decision-makers, and becomes incapacitated? In this case, Florida statutes apply.  Florida law enables these individuals to make these decisions in descending order of priority:

  • Guardian
  • Spouse
  • Adult child, or if more than one, a majority of the adult children who are reasonably available for consultation
  • Parent
  • Adult sibling, or if more than one, a majority of the adult siblings reasonably available for consultation
  • Adult relative who has exhibited special care and concern for the patient, has maintained regular contact with the patient, and is generally familiar with the patient’s activities, health, and religious or moral beliefs
  • Close friend
  • Under specific circumstances, a clinical social worker

Anatomical Gifts Form

Any person who makes a will may also gift part or all of his body for medical research purposes. transplantation, tissue or organ preservation.

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