As we have touched on before, the living will, known in Florida as an advance directive, and health care proxy can be important documents for Floridians in case they become incapacitated and cannot make their own health care decisions. Many people will never need these documents, however, what happens if you do need them and don’t have them?
If someone in Florida is incapacitated or developmentally disabled and has not executed a valid advance directive and health care proxy, or whomever was named as health care proxy is no longer available, one has to turn to FL Statute 765.401 to determine what happens next. This law lists the people who are authorized to make health care decisions for a person unable to decide for him or herself, in order of priority. The first person who would be allowed to make a decision on treatment would be a court-appointed guardian who was granted authority to make medical decisions. If there isn’t one, next in line would be the incapacitated person’s spouse. Continuing on, if there is no spouse, then the person’s adult children could be asked to make any decisions. If there is more than one, a majority decision would be reached. After children, the authority would devolve on to a parent, an adult sibling (or majority of siblings), any relative who has had a close relationship with the patient and knows his or her philosophical or religious beliefs and, then, a close adult friend. If none of these individuals can be found, the health care provider will have to find a licensed clinical social worker who meets certain requirements. This person must be chosen by the health care provider’s bioethics committee or, if the provider is without such a committee, the bioethics committee of another provider.
As can be seen, not having an advance directive and health care proxy could lead to a stranger making decisions about your health care in the event of incapacity. If you have questions about how such medical documents fit into your comprehensive estate plan, you may wish to consult an experienced estate planning attorney.