The ongoing COVID-19 pandemic has created uncertainty for many people. During recent weeks, a number of our colleagues and clients expressed confusion about end-of-life planning, health care surrogate powers and do not resuscitate orders (“DNR Order”).
Under Fla. Stat. § 401.445, incapacitated individuals are presumed to have provided informed consent to procedures such as cardiopulmonary resuscitation, more commonly referred to as “CPR,” if that individual would reasonably have undergone such treatment or procedure if he or she was advised of the risks and necessity of the procedure by the emergency medical technician, paramedic, physician, advanced practice registered nurse or physician assistant. Fla. Stat. § 401.45(3)(a) states that resuscitation may be withheld or withdrawn from a patient by an emergency medical technician or paramedic if a DNR Order is presented to the emergency medical technician or paramedic. A valid DNR Order must be signed by the patient’s physician and by the patient or, if the patient is incapacitated, the patient’s health care surrogate, proxy or attorney-in-fact under a durable power of attorney. Pursuant to Fla. Admin. Code R. 64J-2.018(3), if a patient is incapable of providing informed consent, the patient’s health care surrogate or proxy must sign the DNR Order to validate it. Under Fla. Admin. Code R.64J-2.018(6), a DNR Order may be revoked at any time by the patient, the patient’s health care surrogate, proxy, court-appointed guardian or a person serving pursuant to a durable power of attorney.
A health care surrogate may execute decisions on behalf on an incapacitated individual, including revoking a DNR Order. Under Fla. Stat. § 765.302(1), any competent adult may, at any time, execute a living will and direct the provision, withholding or withdrawal of life-prolonging procedures if such person contracts a terminal condition, experiences an end-stage condition or is in a persistent vegetative state.
Pursuant to Fla. Stat. § 765.101(13), a “living will” is a witnessed written document or oral statement made by a principal expressing the principal’s instructions concerning life-prolonging procedures. A living will is a type of “advance directive.” Pursuant to Fla. Stat. § 765.101(1), an advance directive is a written document or oral statement that includes the principal’s health care or health information, and may designate a health care surrogate, anatomical gift wishes, or a living will.
An individual may limit a health surrogate’s power and authority to consent pursuant to Fla. Stat. § 765.202(1) in an advance directive. A living will provides an individual with the ability to provide instructions regarding end-of-life care. Pursuant to Fla. Stat. § 765.302(3), a living will establishes a rebuttable presumption of clear and convincing evidence of the principal’s wishes.
Pursuant to Fla. Stat. § 765.305, in the absence of a living will, the decision to withhold or withdraw life-prolonging procedures from a patient may be made by a health care surrogate designated by the patient. Before exercising an incompetent patient’s right to forego treatment, a patient’s surrogate must be satisfied that the patient does not have a reasonable medical probability of regaining capacity, the patient has an end-stage condition, the patient is in a persistent vegetative state, or the patient’s physical condition is terminal.
The terms “health care surrogate” and “proxy” are often used interchangeably. In Florida, a “health care surrogate” is designated by a principal to effectuate end-of-life decisions and a “proxy” is a competent adult who has not been designated to make health care decisions for an incapacitated individual, but who is authorized by Fla. Stat. § 765.401 to make health care decisions for the incapacitated individual.
Under Fla. Stat. § 765.401, if an individual fails to nominate a health care agent, end-of-life decisions shall be made by a judicially appointed guardian; if no guardian is appointed, the patient’s spouse, if no spouse, 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; if an individual has no children, then a parent of the patient may serve. If no parent is available to serve, an 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 may serve. If no sibling is available to serve, 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 may serve. If no adult relative is available to serve, a close friend of the patient may serve. Finally, if none of the individuals listed above are available, then a clinical social worker licensed by the state of Florida will be appointed.
It is always preferable for an individual to select his or her own health care representative to ensure that essential health care decisions will be entrusted to the appropriate person.
Implementing an estate plan provides a level of security and direction for individuals and their loved ones. For assistance in creating an estate plan, please contact Michael Salad via e-mail at firstname.lastname@example.org or via direct dial at (954) 889-1850 or Craig Panholzer via e-mail at email@example.com or via direct dial at (954) 889-1856.
Michael Salad is a partner in Cooper Levenson’s Business & Tax and Cyber Risk Management practice groups. He concentrates his practice on estate planning, business transactions, mergers and acquisitions, tax matters and cyber risk management. Michael holds an LL.M. in Estate Planning and Elder Law. Michael is licensed to practice law in New Jersey, Florida, New York, Pennsylvania, Maryland and the District of Columbia.
Craig Panholzer is an associate in Cooper Levenson’s Business & Tax practice group in its Florida office. He concentrates his practice on business transactions, bankruptcy, estate planning, probate, and tax matters.