Advance Directives – Additional Considerations
In 1992 the Florida Legislature drafted statutory forms for advance directives (Living Will and Designation
of Health Care Surrogate). An advance directive is a witnessed written or spoken statement made by a competent adult, which
gives instructions or expresses that individual's desires concerning any aspect of his or her future health care treatment.
These documents may be sufficient for your needs; however, many people add specific information to the forms, making them
fit individual needs not addressed in the statutory form.
Every patient has a right to understand treatment proposed by a health care provider, including cost, risk,
and alternatives to the proposed treatment, before consenting to the treatment. This right is known as the right of “informed
consent.” Every patient has the constitutional right to refuse proposed treatment. This may be done either personally
if the patient has the mental capacity to do so, or through a surrogate or proxy if the patient lacks such capacity. A health
care surrogate makes health care decisions for an incompetent individual. In making those decisions, the health care surrogate
is bound to follow the instructions and wishes of that individual, not those of the health care surrogate. The more
specific the directive is, the more likely your wishes will be followed.
There is no guarantee that medical providers will honor a living will; however, failure to specify in the
living will conditions or illness for which you would want to have specific treatment withheld or withdrawn may result either
in a hospital refusing to withhold the treatment or in a court hearing to determine whether the treatment should be administered.
(A court hearing can be costly.)
Do not assume that the living will and health care surrogate forms provided by a hospital, a nursing home,
a doctor, The Florida Bar, or anyone else reflect your particular wishes. The form in the statute is clearly optional.
The living will and designation of health care surrogate forms should give the person you name as your surrogate
the authority to make any and all health care decisions for you in accordance with your values and your religious and moral
beliefs, at a time when you do not have the mental capacity to make the decisions for yourself. Your surrogate may consent,
refuse to consent, or withdraw consent previously given to medical treatment and may make decisions about withdrawing or withholding
life-sustaining treatment. As a result, both documents should be written to reflect your personal wishes.
If you have any doubts about the documents provided to you, you should discuss these matters with your doctor
and your lawyer. Use these professionals to assist you in identifying conditions not contemplated by the statutory form and
specific types of treatments or procedures that you want withheld if those conditions occur.
Your Designation of Health Care Surrogate and Living Will are important legal documents. Before you sign,
please consider the following facts:
1. Signing your Designation of Health Care Surrogate protects your rights to make your wishes known about
medical treatment, but it does not guarantee that your wishes will be honored.
2. The documents do not have to notarized, but each must be signed by two witnesses. Both witnesses must
be adults, and at least one must be someone other than your spouse or blood relative. Your health care provider or an employee
of your health care provider may not be a witness.
3. You have the right to make decisions about your medical treatment as long as you are able to give informed
consent. Your surrogate will make health care decisions that you are no longer able to make for yourself when you are unable
to give informed consent. Your surrogate will have the power to make all health care decisions, including decisions about
life-sustaining treatment.
4. The documents will remain valid until you revoke them. You can revoke either by signing another advance
directive, by signing a statement that you revoke a document, by ripping up a document, or by simply saying that you revoke
a document. If you do revoke either a Designation of Health Care Surrogate or a Living Will, you have to tell everyone to
whom you gave a copy that you have revoked it.
5. You have the duty to notify your doctor that you have signed an advance directive. You should give your
doctor a copy of each document. You should also give a copy of each to anyone who would be likely to be called in an emergency.
Also, you should keep a list of everyone to whom you give a copy. You should keep the original in a safe place. Take a copy
of each with you whenever you travel. To minimize any confusion or doubt about your wishes or the surrogate's authority, the
documents should be as specific and explicit as possible.
6. In these documents, you can put limitations on the power to make health care decisions, or you can include
your specific desires for treatment or withholding of treatment. For the most part, your surrogate will be obligated to follow
your instructions when making decisions on your behalf.
7. You should inform the person that you want her or him to be your health care surrogate, providing your
surrogate and any alternates with a copy of each document.
8. Do not sign the documents unless you clearly understand them.
9. Your situation may be unique, and these forms may not be sufficient. The Florida Statutes are not the
only source of writings that exercise your right to control your medical treatment.
Section 765.101 of the Florida Statutes (2003) defines certain terms as follows:
"End-stage condition" means an irreversible condition that is caused by injury, disease, or illness which
has resulted in progressively severe and permanent deterioration, and which, to a reasonable degree of medical probability,
treatment of the condition would be ineffective.
"Incapacity" or "incompetent" means the patient is physically or mentally unable to communicate a willful
and knowing health care decision. For the purposes of making an anatomical gift, the term also includes a patient who is deceased.
"Persistent vegetative state" means a permanent and irreversible condition of unconsciousness in which there
is:
(a)The absence of voluntary action or cognitive behavior of any kind.
(b)An inability to communicate or interact purposefully with the environment.
"Terminal condition" means a condition caused by injury, disease, or illness from which there is no reasonable
medical probability of recovery and which, without treatment, can be expected to cause death.
It is unclear whether the definition above will allow life support to be removed in the later stages of Alzheimer's,
stroke, amyotrophic lateral sclerosis, Parkinson's, or other chronic illnesses. The definition of “terminal condition”
in the documents can be expanded to include these conditions. For example:
“any condition which renders me unable to care for myself such as: a massive cerebrovascular accident,
severe prolonged Alzheimer's Disease, Parkinson's Disease, amyotrophic lateral sclerosis, or similar catastrophic traumas,
diseases, or illnesses.”
Some examples of “life-prolonging procedures” you may want to ask for or specifically decline
are listed below. This list is illustrative only and is not meant to be exhaustive. If you are concerned about these particular
procedures, be as specific as possible so you accurately express your feelings.
1. Cardiopulmonary resuscitation (CPR). Using drugs and electric shock to keep the heart beating at the point
of death. This may require a “DNR” (do not resuscitate) order in order to avoid CPR.
2. Artificial administration of nutrition and hydration (forced feeding and fluid through tubes in the veins,
nose, or stomach).
3. Mechanical, drug, or chemical treatment by any means.
4. Mechanical breathing assistance (breathing by machine).
5. Chemotherapy (using drugs to fight cancer).
6. Invasive diagnostic tests (for example, using a flexible tube to look into the stomach).
7. Blood or blood products by transfusion.
8. Antibiotics (using drugs to fight infection).
9. Surgical procedures, major or minor.
10. Pain medications (may dull consciousness and indirectly shorten life).
