Before the pandemic, it was not easy for people to get serious about the medical decision-making portion of their estate plan. Today, there is greater awareness that incapacity from disease or injury is not a hypothetical. It’s reality, and there are tasks that must be done, as explained in a recent article entitled “Now Is the Time to Protect Your Health Care Decision-Making Rights” from Kiplinger.
You may have a fundamental right to make your own decisions regarding healthcare, but without planning and documenting your wishes, your right may evaporate in a heartbeat. Failing to have your healthcare wishes documented properly also leaves your family in the terrible position of having to guess what you want, and even go to court to settle a dispute between family members.
An estate planning attorney works with clients to plan how their assets will be distributed after they die (using a will and trusts, among other tools). However, they also help clients prepare for incapacity. Both are equally important. There are two basic solutions used in Florida to address medical decision issues:
- A Living Will addresses what you want to happen if you are in an end-stage medical condition or permanently unconscious with no hope of becoming conscious. The living will can serve as an advance written directive for the type of treatment you want to have, or what treatments you do not want to have. If you are unable to communicate your wishes, this document conveys them in a clear and enforceable manner.
- A Health Care Surrogate Designation works differently than a Living Will. This covers health care decision-making in all situations when you cannot convey your own wishes. You appoint one or more agents to make health care decisions for you. They use their personal knowledge of you and what you would want to occur if you were able to speak for yourself. They act on your behalf.
If you have not signed a Health Care Surrogate Designation or a Living Will before becoming incapacitated, the Florida Health Care Proxy Statute authorizes certain family members or persons to step forward to act as your health care representative and make medical decisions for you. This is the last and worst option. It is much better for you and your family to have a plan and the proper documents. Under the Florida Statute if there is a conflict about who should make medical decisions for you then the family can end up in court looking for the Judge to make the final decision.
Create a plan for your healthcare when you are creating or updating your estate plan. It will give you the peace of mind that, even in the worst of situations, your loved ones will know what you wanted to occur clearly and be able to go forward in following your wishes.
Reference: Kiplinger (April 29, 2021) “Now Is the Time to Protect Your Health Care Decision-Making Rights”