You want your healthcare wishes to be honored and your family to have a clear understanding of your wishes in the event your health declines. Here are some easy and important ideas to consider when signing an Advance Health Care Directive. Advance Health Care Directives are health care decisions you can make in advance of needing them and include documents like living wills, health care surrogate designations (called “proxies” in some states) and health care power of attorneys.
Ensure Your Advance Health Care Directive Is Personalized
You are unique. Examine your own wishes. Do not think you need to fit your own wishes into a form created by someone else. Some estate planning and elder law attorneys can help you ask the important questions and then put your wishes into a document that is more likely to be honored.
Define Artificial Procedures Closely
Pain medications are sometimes deemed “artificial procedures” and are, therefore, sometimes withheld when a document states that “no artificial procedures be used.” Most people want to pass on in the most painless fashion possible, so be specific to indicate that you want pain medications to be used if they will lessen your suffering, even if those pain medications may dull your consciousness or indirectly shorten your life.
Don’t Forget Liability
Consider a liability shield for the doctors and facilities. Some doctors and health care facilities are afraid of being sued when dealing with living wills and health care surrogates. One reason why advance health care directives are not honored is because the doctor may fear a lawsuit. Consider including language in your documents that indemnifies the health care providers, facilities and your surrogates from any liability incurred as a result of their obedience to your directions. Do not underestimate the importance of this provision. People and institutions will be much more likely to honor your wishes if they believe themselves to be protected from liability for doing so.
Be Specific About Decision Makers
Depending on your circumstances, it is usually best not to require all surrogates to sign off on directions. When health care decisions need to be made, those decisions often cannot wait for all of the surrogates to be in the same place at the same time. Your document should be crystal-clear on how many signatures are necessary. We recommend that people require only one signature to accomplish a health care decision, even if other surrogates are available to act.
Give Out The Right Credentials
Make sure your surrogate has all necessary credentials they’ll need to make decisions freely. The health care advance directive law is found in Chapter 765 of the Florida Statutes, but there are other state and federal laws that affect your surrogate’s ability to act for you. For example, your documents should take into consideration Chapter 470 of Florida Statutes which allows for a “legally authorized person” to be designated to make funeral arrangements. Without this, your funeral arrangements might be made by a person that is not your selected individual.
Account For Privacy Laws
Your documents should also take into account federal privacy laws. Many lawyers have reported that hospitals and nursing homes have refused to allow a health care surrogate to access clinical records unless the documents explicitly point to HIPAA and related privacy laws.
Open To Experiments? Say So
Experimental medical procedures are sometimes desired, and your documents should specifically authorize your surrogate to consent or withhold consent to experimental medical procedures if that is your wish.
Air Tight Contracts
Make the advance health care directives “self-proving”. In Florida, all last wills and testaments can be made self-proving. This means that the witnesses do not actually need to come to court to prove that the person actually signed the will. A last will and testament is made self-proving with the addition of an affidavit (a sworn statement) attached to the will. It is not the custom to use these affidavits for advance health care directives, but it is a smart idea. The inclusion of the “self-proving affidavit” makes the document look more official because the witnesses are making a statement that the rules of signing have been followed. If ever the document requires to be proved in court, this affidavit may prove helpful. There is no disadvantage.
Want To Donate Your Organs?
Consider organ donations and your wishes regarding an autopsy. Including your wishes regarding organ donations and autopsy in your advance health care directives will better ensure that your wishes are clear. Most people are unaware that a surrogate can donate your body or make organ donations, even if you never consented to same during your lifetime. If you do want to donate part or all of your body, then you need to make that decision known as well.
Advance Health Care Directives Should Be Common Knowledge
Make sure people know about your advance health care directives. Your estate planning attorney can create the best, most customized document in the world but if nobody knows about it, it does not help you. Immediately upon signing the documents, you should deliver one copy to each of your surrogates and one copy to your primary care doctor, as well as whatever other specialists you are seeing. If you are not giving your surrogate the original document, tell the surrogate where you keep the original and make sure it is accessible. Talk to your estate planning or elder law attorney about other ways to keep your document available when needed. If you update your document, make sure you send the new one to the people to whom the prior copy had been provided. Make sure you tell them that this new version replaces the older one.
For more information about living wills and related documents that secure your healthcare decisions, you should contact an experienced elder law attorney and discuss your options.