Emergency Planning For Estate Planning & Nursing Home Care
If Someone’s In A Situation Where Life Support Measures May Need To Be Taken But Has No Advance Directives Or Other Legal Medical Documents In Place, Who Decides What Care Will Be Administered?
When somebody is in a medical situation where they are mentally incapacitated or unable to communicate, respond or make decisions, then somebody needs to make decisions for them. There are two main things to address. First, who is the one to make the decisions; and second, what decisions should be made? Both of these must comply with the legal standards in Florida. If there is a Healthcare Power of Attorney (also known as a Healthcare Surrogate) in place, the decision-maker will be the one appointed in that document. However, if there is no Healthcare Power of Attorney there is a statute in Florida called the Healthcare Proxy statute, which designates a hierarchy of people who can be assigned to make medical decisions for a person who is unable to do so for themselves. This proxy statute protects medical providers in the event that the incapacitated person later attempts to file a lawsuit against them for acting without their own approval while incapacitated.
If there are multiple people in your life who would want to have a say in your medical care in the event of your incapacitation, having a Healthcare Power of Attorney in place will help to avoid disputes and streamline the process.
Once you have a properly appointed medical decision-maker, then the question becomes, “What medical decisions should he or she make on your behalf?” The best way to inform this person of what you would want them to do is to specifically state it within the Healthcare Power of Attorney documents. You should document exactly what you would like them to choose for you in situations such as life support, surgeries, and more. These documents can be very specific or very general.
Without this written document, the healthcare decision-maker is left with oral statements that you may have made in the past, which is much weaker proof of your intent and could be subject to a challenge. By having a clear and detailed document, you can empower your healthcare surrogate to make medical decisions on your behalf without liability to you or others in the future.
If Someone Has Advance Directives In Place, Will Those Always Be Reviewed And Recognized At The Time Of An Emergency Medical Decision In Florida?
Advance directives can be used in emergency medical situations, where the doctors will use them to determine who the decision-maker is in the event the patient is not capable of making decisions for themselves.
If the health directive is not specific enough, and the decision-maker has a misconception or assumption about what your choice would be, they could be liable if their decision is later found to be inconsistent with what you had wished. This is why it is very important to be specific in your directives.
Who Makes Medical Decisions If There Is No Power Of Attorney In Florida?
In the absence of a designation of a healthcare surrogate, the decision-maker can either be a healthcare proxy or a guardian, as determined by Florida statutes. The healthcare proxy is usually intended only as a temporary solution to address emergency medical needs so that medical providers can have reduced liability while providing emergency medical treatment and services.
Now, if the healthcare proxy is unable to continue making medical decisions, or if there are conflicts with multiple people in your family or friends regarding which decisions to make, the medical provider may require the appointment of a court-supervised guardian to make the decisions, which removes liability from the medical provider. The best way to avoid this situation is to legally designate someone as your decision-maker beforehand.
If you are still able to make decisions and are at the hospital about to have a difficult procedure, you may ask for such documents to establish a decision-maker in the event you are unable to make decisions during a complication. However, it is always best to have these documents prepared plenty of time in advance and not in an emergency situation.
Who Makes Financial Decisions If There Is No Durable Power Of Attorney Or Financial Power Of Attorney In Florida And Someone Has Suddenly Become Incapacitated?
If someone becomes incapacitated in Florida and there are financial decisions to be made such as who pays the bills, who is going to maintain a property or home and how to interact with varying bank accounts, financial accounts, investment accounts, retirement account, etc., a durable power of attorney would give the person named in that document authority to manage and address those assets, accounts, expenses, and other financial needs. Without a durable power of attorney, there is no person named to act on your behalf financially. Therefore, even if you have a child you trust to take over your financial decisions, they will not be able to access your financial accounts without being legally permitted in written form.
Without a durable power of attorney, the court will appoint a guardian. This process can be lengthy and expensive, and if there is any dispute between your family members, multiple attorneys and lots of hurdles may be involved.
My Loved One Has To Go Into A Nursing Home Unexpectedly Without Having Done Any Financial Preparation, Is Not In A Condition To Make Financial Or Medical Decisions At This Time, And Has No Plans In Place. What Can We Do?
If you have a loved one who has done no prior planning and who is currently incapacitated in a nursing home, the family must decide who is going to be appointed as the decision-maker and initiate a guardianship proceeding. Without a document in place, no one can legally access someone else’s finances, including a spouse, child, or sibling. If the family cannot decide on who to appoint, they can ask the court to decide.
Once a person is appointed as the guardian, they may begin handling the incapacitated person’s finances, but their decisions may be subject to the approval of the probate court.
Legal planning is the best way to ensure that your wishes are carried out in the event of your inability to make such decisions. By properly planning, you can ensure that your wishes are met, and avoid lengthy and expensive proceedings.
My Family Is Not Prepared For A Health Emergency Or Major Medical Event, What Documents Should We Have In Place?
In order to prepare for a health emergency or major medical event, there are four documents that should be considered by anyone over the age of 18. First, you need a designation of healthcare surrogate, which gives a person authority to make healthcare decisions on your behalf.
The second document that you need to have in place is a living will, which consists of instructions to your healthcare surrogate about what medical treatment you do or do not want in the event that you’re incapacitated and unable to make medical decisions. The most common living will form expresses whether or not you want life support if you’re incapacitated with no probability of recovery, as determined by the doctors. A custom, detailed draft of your living will may raise legal fees, but will ensure that all your documented wishes are adhered to.
The third legal document that’s very useful in emergency healthcare planning and decision-making is the HIPAA authorization. This document is a blanket authorization for certain people to have access to all your medical records and contact with your medical providers.
The last document that is generally helpful is a pre-need guardian designation. This document would be executed with your other legal documents and filed with the court so that if anyone challenges your capacity or challenges your healthcare decision-maker’s authority and seeks recourse through the court system, the person you named as guardian of your property or person in a designation of pre-need guardian will always have the trump card to make your medical decisions as your guardian.
Another medical decision-making document that can address your needs is a Do Not Resuscitate (DNR) order, and it is actually not created in an attorney’s office. The DNR is signed by your or your healthcare surrogate and your physician, and it must be on the yellow statutory set form. This document is more medically extreme than a living will. The DNR tells medical providers that, even if you could be saved by resuscitation, you do not wish to receive it.
The parents of young children have been in a serious accident and are unable to make decisions for their children’s care, and there are no legal documents in place. What can we do to ensure immediate care for the children?
In Florida, you can create a power of attorney as it relates to your children. This can be requested as part of your estate planning package and covers common decisions that parents would make for their children, such as medical decisions and other important events in the child’s life.
In the absence of a power of attorney document, then major decisions for your children would be decided by the court’s designated guardian.
For more information on Emergency Planning For Estate Planning & Nursing Home Care, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (904) 398-6100 today.
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