Florida Estate Planning.
Protect your assets and your legacy.
Advance Health Care Directives.
Let your loved ones know how to care for you.
A living will is a written or oral statement of the kind of medical care you want or do not want to receive if you become unable to make your own decisions, such as during incapacity. Commonly, a living will directs health care providers whether or not you want to remain on life support or receive any other death-delaying procedures or treatment. It is called a living will because it takes effect while you are still living and expires upon your death. Florida law requires a person to be competent to execute a living will.
A living will created in Florida must be signed at the end of the document by the creator (the “principal”). At least two witnesses must observe the principal signing the living will (or two witnesses must hear the principal give an oral will), and a notary is not required. A living will created in another state will be accepted in Florida so long as it complies with the laws of the other state or the law of Florida.
Medical Power of Attorney
In Florida, a Medical Power of Attorney document is referred to as a “Designation of Health Care Surrogate” and allows the person creating it (the “principal”) to appoint another person (the “agent” or “surrogate”) to make healthcare decisions for the principal if the principal suffers a medical event where the principal is unable to communicate their health care wishes to healthcare providers.
A Designation of Health Care Surrogate must be in writing and signed by the principal in the presence of two witnesses, and a notary is not required. The principal can make revisions to their designation of health care surrogate at any time so long as the principal is not incapacitated or deemed incompetent to make decisions for themself.
Authorization for Release of Protected Health Information
This document is required by the Health Insurance Portability and Accountability Act (HIPAA), and allows a principal’s designated healthcare surrogate and other identified persons to obtain protected healthcare information on the principal’s behalf in order to make informed decisions about the principal’s care and to pay for medical bills.
Authorization and Direction for Disposition of Remains
In Florida, it is best to include this important estate planning document along with your other advance health care directives to ensure that your designated agent follows your specific instructions with regard to your funeral arrangements and disposition of your remains (whether by burial, cremation or other form).
Organ Donation Form
This form gives consent to the transfer of the donee’s organs after death to living persons who need them, or to research at educational facilities.
1. Do your Health Care Directives name the people you would want to act on your behalf?
Yes, “PEOPLE”, not “person.” You should absolutely have at least one, if not two, people named after your primary first choice decision-maker.
2. Do your Health Care Directives list your agents’ current, up to date cell phone number?
You want to make sure they can be reached, if needed. Including a phone number is minimum. Your directives may also contain your agents’ email and mailing addresses.
3. Are your health care agents also listed on a HIPAA Release?
If someone you have named wants to talk to your doctor, you want the information to flow freely, unimpaired by legal restraint. A HIPAA authorization document gives your health care agent the right to request and receive your medical records.
4. Does your Living Will provide that you should not be intubated or put on a ventilator?
Many standard Living Will forms include absolute prohibition of intubation. Intubation may be necessary to treat coronavirus through a ventilator because it is a lower respiratory tract infection. If your Living Will provides for no intubation, you may want to consider adding in this language:
“Despite anything to the contrary in this document, if necessary due to Coronavirus or any other respiratory infection, I DO want intubation, ventilation, and all other life-saving measures.”
Please note that those life-saving measures could include medications that you would not normally take, so consider whether you want to include any sort of a limitation on certain drugs, even if it could put your life at risk.
Moreover, if you are absolutely against being ventilated and/or intubated, then you will not want to include any language to the contrary.
5. Does your Designation of Health Care Surrogate allow authorization to account for hospital lockdowns?
Typically, your health care agent would have authorization in hand and present the form to your medical professionals. Given current COVID-19 coronavirus pandemic restrictions, and refused entry of patient’s loved ones at most hospitals, that may not be possible. Consider updating your Designation of Health Care Surrogate as follows:
“I expressly authorize my Agent to communicate decisions to any medical provider verbally, in person, by telephone, via email, via web conference including but not limited such services as Skype, Zoom, FaceTime, or in any other manner appropriate to the circumstances. Further, I expressly hold harmless any medical provider for relying on such communications of decisions and directions by my Agent. The express purpose of this provision is to foster decision making by my Agent in remote or indirect manners that may be necessary or advisable given whatever circumstances accompany such decision making.”
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