ADVANCE HEALTHCARE DIRECTIVES

Florida law recognizes the fundamental right of every competent adult to determine and decide all aspects of his or her health, including the right to choose or refuse medical treatment.  This right is not to be frustrated even in the event of subsequent incapacity of the principal.  To further this right, the Florida legislature passed the “Life-Prolonging Procedures Act” in 1992.  The Act is now contained in Part III of Chapter 765, Florida Statutes.  Chapter 765 authorizes a competent adult individual to create a Living Will in order to direct the procedures that he or she would wish to be sustained or withdrawn in the event of a terminal condition, an end-stage condition, or a persistent vegetative state. 

            The importance of expressing your wishes is that Florida has adopted the concept of “substituted judgment.”   In Re:  Guardianship of Browning, 568 So.2d 4 (Fla. 1990).  The concept of substituted judgment means that if a now incompetent patient has left instructions regarding life sustaining treatment, the patient’s surrogate must make the medical choice that the patient, if competent, would have made.  The surrogate is not to make a choice that he or she might make for himself or herself, or that the surrogate might think is in the patient’s best interest. 

            As the Florida Supreme Court has noted:  “It is important for the surrogate decision-maker to fully appreciate that he or she makes the decision which the patient would personally choose.  One does not exercise another’s right of self-determination or fulfill that person’s right of privacy by making a decision which the state, family, or public opinion would prefer.  The surrogate decision maker must be confident that he or she can and is voicing the patient’s decision.”  (Id.)

            Both a Healthcare Surrogate and a Healthcare Proxy must look to any evidence of the patient’s wishes and then substitute the patient’s judgment for their own.  If there is evidence as to what the patient would have wanted, that evidence prevails.  Only if there is no evidence may the Healthcare Surrogate or Healthcare Proxy consider the patient’s best interest.  If you feel comfortable leaving decisions about life-prolonging decisions to your healthcare surrogate, then the law will not second guess the surrogate’s determination of your “best interest”.  If you neither complete a Living Will nor Designation of Healthcare Surrogate, a Healthcare Proxy may be appointed for you by the court.  In those circumstances; however, there must be clear and convincing evidence that the proxy’s decision would be in your best interest.

            The Cramer Law Center regularly advises clients on healthcare directives and end of life decision making issues and prepares designations of healthcare surrogate and living wills for its clients.