Archive for Living Will
BACK TO SCHOOL
It’s back to school time again. Do you have a college student getting ready to leave home? What about a niece, nephew, or neighbor that is ready to begin the college journey?
Now that these “children” are considered adults in the eyes of the law, there are protections you should consider implementing so that you can still speak with their doctors. You or other loved ones may not have access to medical information or treatment plans, even in the event of an emergency. An effective way to address this challenge is to have the student sign advance health care directives (Designation of Health Care Surrogate and HIPAA release) before the student leaves home. Equally important is that the documents are readily accessible to parents and health care providers.
The process is simple and will take only a few minutes to ensure family access to medical information. Our program for college students offers the following benefits:
1. Designation of Health Care Surrogate appointing someone to make medical decisions in case of the student’s inability to do so (typically the student’s parent or parents).
2. HIPAA Release detailing who should be allowed to have access to medical records and be able to speak with physicians about treatment and status.
3. Enrollment in the DocuBank I.C.E. (in case of emergency) program a national health care document storage and recovery system that provides ready access to the documents by medical professionals on a 24/7 basis.
4. Wallet Card for the student that includes how to access their health care documents and emergency contact information.
5. Alerts for medical professionals of allergies and medical conditions your child may have.
If you are interested in this program, please contact us at (904) 448-9978 or info@cramerlawcenter.com. The cost is $250 for the first child and $150 for each additional child in the same family. This includes enrollment in the I.C.E. program for a full four years.
Our thoughts are with all of our families sending students to college, particularly those who are leaving the nest for the first time.
Family Feud: Costly in Guardianship Court
Families that have not done proper Estate Planning often end up in Guardianship Court. Without proper documents, when a loved one is no longer able to care for himself or herself, someone else must use the court system to become his or her legal Guardian in order to make medical and financial decisions for that incapacitated person. The Guardianship process itself is public, time-consuming, and expensive, even if matters are uncontested. However, if the court becomes a stage for a “family feud,” both the emotional and financial costs can skyrocket.
Typically, there are at least two attorneys involved in the Guardianship proceeding. The person petitioning to become the guardian is required to have an attorney. Additionally, the person who is alleged to be incapacitated (the “ward”) is appointed an attorney by the court, to protect his or her interests. If several family members vie to become the guardian (such as siblings fighting over a parent), the number of attorneys involved and resulting expense is multiplied. Such family in-fighting also takes an emotional toll on the participants.
The upshot of many guardianship family feuds is that the Judge will decide not to appoint any family member as guardian, but instead will appoint a neutral, “Professional Guardian.” The costs of providing that neutral perspective will be $85 – $100 per hour (in the Jacksonville, FL area), for each hour of the Professional Guardian’s services. Of course, the Professional Guardian also will need to hire her own attorney, to be paid for out of the guardianship estate. Unfortunately, we have seen horrible results from family feuds. No one wins when families quarrel in open court.
Don’t let this to happen to your family!
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.
