Living Wills, Advance Healthcare Directives and Durable Powers of Attorney
The Living Will, Durable Power of Attorney (or Revocable Living Trust, if you have a Trust based estate plan) and the appointment of a Healthcare Surrogate are the core documents in your Estate Plan which protect you and your family while you are still alive, but unable to make or communicate your decisions because you are “incapacitated”. That might result from a temporary condition, such as unconsciousness or a stroke which prevents you from being able to communicate, or a permanent condition such as a permanent vegetative state or the last stages of dementia. This outlines some of the issues you should think about when considering how your attorney should draft these documents for you.
A. THE LIVING WILL
In Florida, you have the fundamental right to make decisions regarding your own health and when you want, or don’t want, life prolonging procedures, including basic care like food and water (feeding tubes and hydration I.V. lines). A Living Will allows you to communicate to your caregivers and doctors what you want and under what conditions you would want to refuse such care, or have it withdrawn from you. A Living Will allows you to preserve personal dignity, retain control over your destiny on this Earth, and can be key in controlling the burden which will be placed on your loved ones that accompanies your incapacity. If you do not have a Living Will or other Advance Directives in place, your family may have to go to the Probate Court and have a guardian over your person appointed to make decisions for you. That is expensive, may lead to family disputes, and the Court may not select the person you would have trusted with that responsibility.
You can use a Living Will to control such things as setting up a plan for end-of-life care; assuring your physical and mental suffering will be carefully attended to; communicating your instructions for providing, withholding or withdrawing life prolonging procedures; addressing any life goals you may have and want accomplished before you die; assuring your personal dignity will be respected; assuring you are not “abandoned” or that you are cared for in the location of your choice and balancing the cost and burden of that care against the burden your care presents to your family and others; and making sure these goals are met in a culturally appropriate way.
There are two categories of things to consider in drafting a Living Will. First, what kinds of medical or physical conditions might cause you to not want life prolonging procedures? Second, what kinds of life prolonging procedures do you want, or don’t want, including such basic care as feeding tubes and hydration.
Typical Medical Conditions:
Florida statutes recognize three categories of conditions in which a life prolonging procedure may only result in a “precarious and burdensome existence”, allowing the withholding or withdrawing of such procedures through a living will. 1. A “Permanent Vegetative State”: There is an irreversible inability to interact purposefully with the world around you or engage in any voluntary action or thought.
2. “Terminal Condition”: A condition where there is no reasonable medical probability of recovery and which, without treatment, will result in death.
3. “End Stage Condition”: An irreversible condition resulting in progressively severe and permanent deterioration, and for which treatment would be ineffective.
Many Living Wills simply provide that if the principal has one of the above conditions, then they do not want life prolonging procedures, or simply giving discretion to the chosen Health Care Surrogate. Nothing is wrong with those choices. However, you have the option of being more precise. For example, you may wish life prolonging procedures to be administered until one or more family members are able to come to your side. You may wish your life to be prolonged if you have a reasonable probability of recovering your consciousness and capacity, even if you will still suffer from a Terminal Condition or End Stage Condition, as long as you will not suffer pain or discomfort which is not medically manageable. Administration of such procedures may allow you the opportunity to say things, or allow your family to say things which need to be said before you pass, or simply an opportunity to express love and say goodbye.
a. Types of Life Prolonging Procedures You Should Address:
There are many personal and ethical reasons why you may wish to receive some life prolonging procedures, but not others, but this decision should be made carefully. Life prolonging procedures typically include the following:
1. CPR/Fibrillation: the restarting of a heart if it stops beating;
2. Breathing tubes or ventilators;
3. Feeding tubes and/or hydration lines allow the artificial supply of food and water (“I.V. Lines”);
4. Dialysis, which replaces the function of your kidneys if they cease to function;
5. Pain killers or palliative care. Florida law does not consider pain management or palliative care to be a “life prolonging procedure”, but it is best to express your wishes regarding being made comfortable, even if doing so may result in an acceleration of death;
6. Surgeries or medicines or treatments which will address one or more conditions or symptoms, making you more comfortable or extending your life, but not curing your “terminal condition” or “end-stage condition”.
The most controversial of the above list are feeding tubes and hydration lines. Some have said these are more like providing basic needs like warmth and shelter than like surgery or medicine, and should always be provided. The Orthodox Jewish faith and the Catholic faith may take the position that food and water are ethically obligatory and should not be withdrawn absent special circumstances. But, before you take these items off your list of “life prolonging procedures” you should be aware that with a condition like a “permanent vegetative state”, a feeding tube and hydration line could keep you alive for years, maybe decades, leading to a lengthy period of purposeless life and ongoing emotional and financial burden to your loved ones.
B. HEALTH CARE SURROGATE
You can appoint someone to be your agent to make health care decisions for you with either a medical durable power of attorney, or an advance healthcare directive. You can choose an alternate, but the Florida statute does not provide for picking “co-agents”. This may cause conflict if you have to choose between several family members.
A Surrogate only can make decisions for you after a determination is made that you are “incapacitated” by your attending physician, and ceases automatically when you recover your capacity. Your Health Care Surrogate is guided by your wishes and instructions as laid out in your Living Will, and both documents are meant to work hand in hand. If your family feels the Surrogate is not abiding by your wishes as expressed in your Living Will, they can go to the Probate Court and rely upon your written instructions. Think of it this way. The Advance Healthcare Directive appoints your agent, and your Living Will gives them your instructions or wishes.
C. DURABLE POWER OF ATTORNEY
A “durable” power of attorney is a document which allows your appointed agent to make a variety of financial decisions for you, from day to day tasks like paying your bills, to more complicated tasks like buying and selling investments, running your business, or making gifts. If you have a Revocable Living Trust based estate plan, you may not need a durable power of attorney, because your Trust likely has already appointed successor Trustees to handle the trust assets, which presumably would be sufficient to make sure the lights are kept on and other financial matters are attended to.
Florida does not recognize “springing” durable powers of attorney, which are powers of attorney which “spring” to life only upon your incapacity. That means whomever you appoint as your agent has the powers you designate right away. So, you must choose someone you trust, and even then should limit their powers to just those they need to have to “take care of things” when you cannot. This danger should be seen in contrast with using a Revocable Living Trust, which allows you to choose a successor trustee who only can assume responsibilities upon a determination that you are incapacitated, and you get to decide how that determination is made (ex. upon advice of a physician and a family member).
Powers of attorney are one of the most abused of estate planning tools. It is not unheard of for the chosen agent to abuse their power and authority and start diverting the principal’s assets toward themselves or their families, or deprive a disfavored family member from participating meaningfully in the principal’s financial matters. So, the person you select not only should be someone you trust, but someone everyone else in the family trusts as well. A power of attorney allows you to grant as many powers as you wish, or restrict those powers to just a few categories. Often powers of attorney are signed which simply permit all kinds of transactions indiscriminately. Consider limiting the powers of your agent to just the things you reasonably think they need to do.
D. MISCELLANEOUS ISSUES
a. The withholding or withdrawal of life prolonging procedures pursuant to a Living Will or other Advance Directive will not affect payment of any life insurance policy. So, you don’t need to worry about any decisions affecting your beneficiary’s rights under such a policy, even if your beneficiary is also your chose agent to make medical decisions.
b. Consider changing your Health Care agent or durable power of attorney agent when appropriate. For example, if you have filed for divorce you should remove your soon to be ex-spouse as an agent. Florida law will automatically void the selection of an ex-spouse after a divorce is final, but not before that point (such as during the divorce action, or during a period of separation).
c. Consider choosing different people to be in charge of your finances and in charge of your medical care. Not all personalities and skill sets are appropriate for both financial decisions and medical decisions. Selecting different people also insulates your agents from potential conflicts of interest, and allows more members of your family to feel that you have “involved” them.
d. Anyone who destroys or alters or conceals any kind of Advance Directive and thereby causes life prolonging procedures to be withheld or withdrawn, hastening death, commits a second-degree felony. These are important legal documents and should be respected. Your Advance Directive will not apply to the following situations unless you specifically address them: Abortion, sterilization, electro-shock therapy, psychosurgery, unapproved experimental treatments, and withholding procedures from a pregnant patient prior to viability of the fetus. Consider your position on these issues, and then have your attorney address them specifically.