Advance Directives – What are they?

Advance directives are legal documents that allow you to proactively make certain choices about your medical decision making and end-of-life care prior to a crisis. Advance directives allow you to tell your loved ones and health care professional in writing who you want to make medical decisions on your behalf; who you want to be able to speak to medical professionals on your behalf; and what your end of life wishes are.

Advance directives are important for anyone over the age of 18! Yes, even your college aged children.

The legal documents that compile advance directives are a Designation of Health Care Surrogate, Living Will, and HIPAA (Health Insurance Portability and Accountability Act) Release.

Designation of Health Care Surrogate

A Designation of Health Care Surrogate is a written document designating a surrogate to make health care decisions on your behalf. The document may also designate an alternative surrogate if the original surrogate is unwilling, unable, or unavailable to perform their duties.

What happens if you do not have a Designation of Heath Care Surrogate? Under Florida Law, if an incapacitated person has not designated a health care surrogate, health care decisions may be made for the patient by any of the following individuals, in the following order of priority:

(a) The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability, who has been authorized to consent to medical treatment;

(b) The patient’s spouse;

(c) An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation;

(d) A parent of the patient;

(e) The adult sibling of the patient or, if the patient has more than one sibling, a majority of the adult siblings who are reasonably available for consultation;

(f) An adult relative of the patient who has exhibited special care and concern for the patient and who has maintained regular contact with the patient and who is familiar with the patient’s activities, health, and religious or moral beliefs; or

(g) A close friend of the patient.

(h) A clinical social worker

The best way to make sure your wishes are followed is to prepare a Designation of Health Care Surrogate and have some difficult conversations with your proposed surrogate as to what those wishes would be.

Living Will

A Living Will is a document that outlines your personal choices about end-of-life medical treatment if you are ever in a terminal condition, end stage condition, or persistent vegetative state and are unable to communicate your wishes. The living will allows you to put those wishes on paper so your health care surrogate has direction of what you want to happen.  The living will takes the burden off of your health care surrogate to decide on end-of-life decisions – such as do you want artificial nutrition or hydration if you are in a terminal condition, end stage condition, or persistent vegetative state.

A living will is different than a DNR (Do Not Resuscitate). The living will addresses a host of end-of-life issues. However, a DNR provides instructions for medical professionals to refrain from conducting CPR in the event of cardiac or respiratory arrest. A DNR is a single-page form that has been approved by the Florida Department of Health that the patient’s physicians must also sign.

HIPAA Release

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal law put in place to protect privacy and access to medical records. A HIPAA Release is a document that allows an appointed person or group of persons that are allowed access to your specific health information. The HIPAA release can be provided to your primary care physician and available if there is an emergency and you are in the hospital.

If you want to start preparing your advance directives, or are interested in more information, please contact the Flammia Elder Law Firms at (407) 478-8700 – we can help!

Article provided by Kathleen Flammia, Attorney at Law, one of Florida’s TOP Elder Law & Estate Planning Attorneys. Attorney Flammia is a Member of the National ElderCare Matters Alliance, and she and her firm are Featured in – America’s National Directory of Elder Care / Senior Care Resources to help families plan for and deal with the issues of Aging.

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Advance Directives – What are they? was last modified: April 17th, 2023 by Kathleen Flammia