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Know the risks of not having a health care advance directive

On Behalf of | Apr 25, 2024 | Estate Planning |

Many Floridians who are concerned about what might happen to them if they are incapacitated will have a health care advance directive as part of their estate plan. This is a document that designates a representative – a proxy – to make decisions as the person would if they were able to do so.

Most people will name a trusted loved one to serve in the role. It could be a parent, a sibling, a spouse or adult offspring. They will decide what treatment the person gets if they are incapacitated. For example, if a respirator or feeding tube is needed to keep them alive and they would not have wanted that if they could communicate on their own, the representative can make that decision.

People who do not have a health care advance directive leave themselves vulnerable to state law as to how decisions are made and who makes them. With that, it is vital to know what the law says about who will be the health care proxy.

Family members will be responsible for making the decisions

In the absence of a health care advance directive, the law dictates who will make the decisions for the incapacitated person. If they were married at the time, the spouse will be first in line. Next will be an adult child or children. It will go down the line to the living parents; the adult sibling or siblings; and adult relatives who showed care and concern for the patient and were in frequent contact with them.

Without family members, it will then fall to a close friend. A clinical social worker will be named in the absence of any of these listed people. The social worker must be qualified to fill the role and have completed a guardianship program that was approved by the court. The health care provider also has a job to do in that it will use its bioethics committee that has no link to the health care provider to choose the proxy. This is particularly important if the decision to withhold life-saving procedures is made by the proxy. The committee will review this decision.

The key is understanding what the proxy believes the incapacitated person would have wanted. Some people want to do whatever they can to stay alive. Others do not. It is also the proxy’s responsibility to assess whether treatment serves the patient’s best interests. If it causes them unnecessary pain and will not alter the outcome, then this could be factored in with choosing not to give that treatment.

A health care advance directive can be part of an estate plan

As this shows, there is significant risk for people not to have a health care advance directive if they hold strong preferences with the type of care they will receive if they are incapacitated. The decisions could be left to people they would not otherwise have wanted to make those choices. Knowing what a health care advance directive does and preparing it is a key part of estate planning. When thinking about the options and who to trust with these monumental decisions, it is useful to have experienced advice.




Photo of Jennifer D. Sharpe