We have a lot of people asking for wills because of the coronavirus situation. A will is not the only document we include with our core estate plan. We include several documents that name the person or people you want to make health care decisions for you, even if you are incapacitated. These include a durable power of attorney, health care surrogate, declaration of living will, designation of preneed guardian.

An estate plan includes not only distribution of property upon your death, but planning for the incapacity that often precedes death. Right now, the possibility of ending up on a respirator unable to communicate is much higher for all of us. 

People with family members who often disagree or have conflicting opinions about what care would be best for you face the most risk of a delay in care. Hospitals or doctors who do not have a clear authority on who can direct care for a patient may end up delaying care.

Health Care Surrogate Formalities

Florida has a statute addressing advance directives for various health care situations. Under Florida Statutes 765.201-205 you may designate a person who can make decisions regarding your health care. When we consult with clients we discuss choosing a person best suited for this job. The right person may not be your favorite child or sibling. The best choice may be a relative that works in health care or who can otherwise be trusted to make difficult decisions.

Regardless of who you choose, the documents must meet the requirements of the statutes. This means executing a form you downloaded from the internet with the family around the kitchen table will likely result in an ineffective document. This is because the surrogate must not be a witness, and at least one of the two required witnesses must not be related to the principal. 

What if I don’t have a health care surrogate in Florida?

Under Florida Statutes 765.401 if you have not designated someone in a properly executed health care surrogate, these are some of the people authorized to act in order:

1. Patient’s spouse;
2. Adult child, if more than one, a majority reasonable available for consultation;
3. Parent of patient;
4. Adult sibling of patient, if more than one, a majority reasonably available for consultation;
5. Adult relative with some specific characteristics like “special care and concern” for the patient;
6. Close friend of the patient;
7. Clinical social worker with specific qualifications. 

I’m sure you can see some of the complications that arise as you go down the list. What if there is no spouse, and two children? Sounds like a deadlock, and there will almost certainly be litigation. The same issue will come up if the patient has no spouse, no kids, but two siblings. What exactly is the special care and concern that would qualify for an adult relative not the patient’s child, parent, or sibling?

As you can see there are plenty of problems that can get in the way of directing your health care if you haven’t designated a health care surrogate. 

We are equipped to draft and safely oversee the execution of your Florida health care surrogate. Contact us today to set up a free consultation regarding a health care surrogate in Florida. We are an essential business, and we are still working during the coronavirus crisis.