Do I Really Need a Health Care/Living Will Surrogate?
Florida law provides for the designation of a health care surrogate under its two statutory advance health care directives, the Living Will and the Designation of Health Care Surrogate.
For More on Florida’s Living Will:
For More on Florida’s Health Care Surrogate:
You might want to read more about these advance directives in Florida Statutes Chapter 765.
In theory, you could have a Living Will which did not designate a surrogate to act on your behalf. Presumably, no such surrogate designee would be needed, as your written Living Will instructions would be so clear and unambiguous that reasonable health care provider minds could not possibly confuse, delay or obstruct your instructions for your end-time comfort and medical care. By statute that’s the rule, but in practice sometimes things aren’t so clear.
Health care providers have multiple levels of administrative and medical hierarchy. Wouldn’t it be reasonable to expect that just as you might need an advocate to articulate and clarify your legal position in a court of law, you might also need an advocate, even if it is a layperson and family member, to advocate for you and your expressed wishes to your health care providers? This is especially true when the decision is dealing with your end-time instructions and requests.
One argument against Living Will surrogates is that they might undo your wishes in the worst case, or have a guilt trip for following your expressed end-time wishes in the best case. Feelings, regret, and grief are all legitimate, valid emotional responses to a very difficult circumstance: the death or last stages of the last illness of a loved one.
Others argue against the use of Living Wills at all, and point to anecdotal evidence of premature prognosis of eminent death of those patients who, miraculously, later rallied and survived their presumed “final illness” and “deathbed.” I don’t know any perfect lawyers, so I’m going to assume there are no perfect doctors and hospitals, either.
I side on the use of a Living Will, Designation of Health Care Surrogate, and HIPAA (i.e., General Medical) Release, naming your select, trustworthy, and strong minded health care decision making designees, for many reasons.
First, by so doing, you have inexpensively appointed a recognized representative for you to help navigate the complicated and often frustrating health care services environment, at a time when you well may not be able to do so yourself. In most instances, no further time consuming and expensive legal incapacity and guardianship proceedings then will be necessary.
Second, you help your health care professionals help you by giving them a clearly designated agent to speak directly to about your various health care related advance directives, and your wishes and instructions.
Third, you clearly have established the legal standing of your designated surrogate to seek court action, if necessary, to enforce or defend your expressed written wishes or instructions.
Fourth, designating the surrogate in writing and in advance gives you a golden opportunity to clearly discuss your wishes, preferences, and instructions with your designee prior to the time of crisis.
Fifth, and finally for now, your appointed surrogate can be authorized to sign and/or request a statutory “DNR” order from your physician, which will be respected by EMR personnel and your health care providers if appropriate to your case.
Grady’s Bottom Line: While not universally accepted, use of a designated surrogate for your statutory health care advance directives will help ensure that your wishes and instructions are carried out as desired and intended by you. Why leave something that important to chance?
Don’t be a victim of one size fits all planning. Know your legal rights on estate planning and act accordingly!