Advance Healthcare Directives

Gary L. White, Esq.

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Florida Advance Healthcare Directives

When a serious accident or illness strikes, you may be unable to make or voice decisions about your medical care. At that point, it is typically too late to appoint someone to make those decisions for you, or to execute directives that will guide your medical team.

Advance healthcare directives put the power back in your hands, ensuring that you can:

  • Make your wishes known about end-of-life care

  • Choose the person who will make medical decisions for you when you are unable

  • Authorize your caretakers to access medical information

  • Pre-appoint a guardian in case you become incapacitated

Types Of Advance Healthcare Directives

Although you may have heard the phrase “advance healthcare directive” used as if the directive was a single, specific document, there are several types of advance directives. Generally, these documents will be used in combination, to ensure that you and your family are fully protected.

 

Creation of a Living Will

A living will allows you to make advance decisions about the medical care you receive—or opt not to receive—when you are terminally ill, are in the end-stages of an illness, or are in a persistent vegetative state. A living will only becomes effective if you are incapacitated.

If you do not have a living will and become incapacitated, your healthcare surrogate will be responsible for making decisions about end-of-life care. If you have no advance directives at all, those decisions will fall to family members, who may have differing ideas about appropriate treatment.

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A designation of healthcare surrogate is commonly referred to as a “medical power of attorney.” A healthcare surrogate is a person you choose to make medical decisions on your behalf if you become unable to make those decisions yourself. It is essential to choose someone you trust to play this role, but there are other important considerations, as well.

For example, you will want to consider:

  • Whether the appointed person is comfortable making those decisions

  • Whether your chosen surrogate has religious or ethical convictions that might conflict with your wishes

 

It’s also important to talk with your chosen surrogate to ensure that he or she is equipped to take on that responsibility and understands your wishes. You will generally want to appoint a successor surrogate, as well, so that if your chosen representative is unable or unwilling to fulfill the role, another trusted person is in a position to take over.

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Medical Power of Attorney

(Designation of Healthcare Surrogate)

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Nomination of a Pre-Need Guardian

Adults generally manage their own affairs. However, when an adult becomes incapacitated, it may be necessary to appoint a guardian. Some of the most common reasons for appointing a guardian include incapacity due to a serious accident, degenerative cognitive conditions such as Alzheimer’s disease, and mental illness.

Of course, by the time the need for guardianship arises, the person in need is no longer able to choose his or her own guardian. Therefore, Florida law provides a procedure for declaring a pre-need guardian. The pre-need guardianship has no effect unless and until guardianship becomes necessary. While the court ultimately determines whom to appoint as guardian, the pre-need guardianship declaration creates a rebuttable presumption that the person named is entitled to act as guardian.

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HIPPA Authorization and Waiver

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal statute that imposes strict limitations on disclosure of medical records and other healthcare information. The law protects patient privacy, but these restrictions can make it difficult for caregivers to access important information or work effectively with medical professionals.

A patient or personal representative may sign an authorization to allow a family member or other caregiver access to medical information. However, several specific provisions are required to create a valid authorization. Some of these provisions are not intuitive, and might easily be overlooked by a lay person attempting to create his or her own authorization. For example, the HIPAA authorization must contain a clear statement that the patient may revoke the authorization at any time. Working with an experienced estate planning attorney can help you avoid oversights that could leave you unprotected.

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Protect Your Health and Your Family with Advance Directives

Carefully considered advance directives not only give you the power to make decisions about your own care, but can also alleviate the burden on your family. However, incomplete or unclear directives can do more harm than good. Give yourself and your loved ones the peace of mind that comes will a well-formulated healthcare plan.

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DISCLAIMER

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advise for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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