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WHO WILL MAKE HEALTH CARE DECISIONS FOR YOU WHEN YOU ARE UNABLE TO?
By Martin H. Cohen, Esq.
Elder Law
Attorney
Have you
appointed someone to make health care decisions for you when you are no
longer able to do so? So you ask, “What do you mean by ‘health care
decisions’?” Under Florida law “health care decisions” mean the following:
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Informed consent, refusal of consent, or withdrawal of consent to
health care, including life-prolonging procedures
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The decision to apply for government benefits to defray the cost
of health care
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Access to medical records reasonably necessary for your Health Care
Surrogate to make these decisions
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The decision to make anatomical gifts
As a patient,
you have the right to understand treatment proposed by a health care
provider before you consent. This right is known as the right of "informed
consent." The patient should be informed of the cost, risk, and alternatives
to the proposed treatment. In addition, you have the constitutional right
to refuse proposed treatment.
You have the
right to choose the person who will make these decisions for you should
you be unable to make them for yourself due to physical or mental incapacity.
This is done by signing an “Advance Directive.” Advance Directives include,
but are not limited to, the Designation of Health Care Surrogate and Living
Will. The law allows you to change your Living Will and Designation of
Health Care Surrogate so long as you are competent.
If you fail to
appoint a Health Care Surrogate, Florida law will appoint someone to act for
you known as a "health care proxy". This is based upon a statutory list
that begins with a court-appointed guardian at the top, followed by the
patient’s spouse, and then the adult children, parents, siblings, etc. This
list may not be consistent with your preferences and often is difficult for
a hospital to follow. In our office, the health care surrogate document not
only provides a list of alternate surrogates, but it states the names,
addresses, and all contact phone numbers so that the surrogates and
alternates can easily be located.
When you look at the
scope of "health care decisions", you immediately realize that these may be
the most important decisions that will be made during your lifetime. So,
rather than letting the State arbitrarily choose who will make these
decisions for you, don’t you think that you should select the person who
will act for you when you are unable to make decisions for yourself? Isn’t
this why you prepared a will leaving your estate to your chosen
beneficiaries, rather than allowing the State to write a will for you?
The Designation of Health
Care Surrogate should give your Health Care Surrogate the authority to make
all health care decisions for you in accordance with your values, and your
religious and moral beliefs, should you not be able to make them for
yourself. Your surrogate may consent, refuse to consent, or withdraw consent
previously given for medical treatment.
A Living Will is your
declaration stating whether or not you wish to have your life
artificially prolonged if you have a terminal condition, an end-stage
condition or are in a persistent vegetative state, as defined by law. In
addition, it must be determined by the attending or treating physician and
another consulting physician that there is no reasonable medical probability
of your recovery from such condition. This means that you may choose to
have your life artificially prolonged, if that is your wish.
There is no guarantee that
health care providers will honor you Living Will. For that reason, you should
appoint a surrogate in the Living Will (who may be the same as your Health
Care Surrogate) to insure that your wishes are followed.
We do expect that health
care providers will pay more attention to the wishes of patients as
expressed in their living wills. In a recent case, the Joseph L. Morse
Geriatric Center in West Palm Beach and its chief doctor were sued for
damages for disregarding the wishes of Madeline Newman, an elderly patient.
Damages of $150,000 were awarded against the nursing home.
If you have
previously created Designations of Health Care Surrogate and Living Wills,
be sure that they are up to date and that they express your wishes.
Effective April 14, 2003, changes in the federal privacy law restrict health
care providers from releasing your medical information to your designated
Health Care Surrogate unless specifically worded release authority is
contained in the document.
If you would like more information about Living Wills and Designations of
Health Care Surrogates, call Mr. Cohen for a free telephone consultation at
(954) 315-0355
If you have questions about anything on this
website, or if you wish to schedule an appointment, contact Mr. Cohen at
(954) 315-0355
or by
E-mail.
Mr. Cohen maintains two offices for the practice of
Estate Planning, Elder Law and Disability Law in Broward County, Florida
for the convenience of his clients:
Flamingo Falls Professional Center
1806 N. Flamingo Rd.
Suite 300
Pembroke Pines, FL 33028
and
Crossroads One
8201
Peters Rd., Suite 1000
Plantation (Fort Lauderdale),
FL 33324
For those of you who are unfamiliar with South Florida geography, Broward
County has 30 municipalities, including:
Coconut Creek,
Cooper City,
Coral Springs,
Dania Beach,
Davie,
Deerfield Beach,
Fort Lauderdale,
(Ft. Lauderdale),
Hallandale Beach,
Hillsboro Beach,
Hollywood,
Lauderhill,
Lauderdale Lakes,
Lauderdale-By-The-Sea, Lazy Lake,
Lighthouse Point,
Margate,
Miramar,
North Lauderdale,
Oakland Park,
Parkland,
Pembroke Park,
Pembroke Pines,
Plantation,
Pompano Beach,
Sea Ranch Lakes,
Southwest Ranches,
Sunrise,
Tamarac,
Weston,
Wilton Manors.
For
information on these cities, click on the appropriate link.
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