Practical Aspects of Living Wills: Enforcement and Tricks of Trade

The Florida Bar
Elder Law Section Meeting

1. Draft for practice. Don’t worry about being superfluous.
   1. “Schiavo” provision
   2. Religious or moral objection 7-day transfer provision
   3. Shield of Liability
   4. Enumerate important, controversial or oft-used rights even when granted by statutory default. For example:
      1. “Access to my Records: My Surrogate shall have all authority to access all of my clinical records, health care records, charts of all physicians who have ever treated me or been consulted regarding me, pharmacy records, insurance records, records regarding the provision of any medical equipment for me, records regarding ethics panels, hospital boards or others who have met regarding me, records of governmental agencies or providers to governmental agencies who have files regarding me even when those files are closed to the public but where I myself would have access and all other files or records regarding my health care. This grant of access applies to all media including paper files, audio files, video files or digital files of any nature.”
      2. “My Health Care Surrogate shall have the authority to direct the pertinent health care providers to withdraw treatment even if I myself requested the provision of that treatment or procedure during my capacity. For example, I may ask for the provision of a feeding tube or the means of delivering nutrition to me while I am competent but my Health Care Surrogate shall have the authority during my incapacity and consequent inability to communicate, to direct the withdrawal of that feeding tube. I recognize that my circumstances can change and I want my Health Care Surrogate to have the power to react to that change and to be able to act on my behalf. If my Health Care Surrogate, in his or her sole and absolute discretion, believes that I would not have wanted a particular procedure to be sustained or, if my wishes are unknown, that it would be in my best interest to withdraw the treatment, it is my desire and I hereby direct that my Surrogate be given the authority to withdraw such treatment.
2. Multiple Surrogates
   1. In every single case, successor options and co-surrogacy options are discussed, pros and cons weighed.
   2. Enforcement. Comfort. Who is first?
   3. Precatory language
3. Dual Empowerment: DPOA for Healthcare and HCS
   1. 709.2109: “ … a proceeding to determine incapacity does not affect the authority of the agent to make health care decisions for the principal, including, but not limited to, those provided in Chapter 765.” (emphasis added)
   2. Enforcement, damages and notice provisions of 709.2120 now in force for health care decisions.
4. Funeral Tasks and Death Certificates: “Further, my designee shall have the right to execute my death certificate and sign any documents required by the funeral director on my behalf to finalize my funeral arrangements. For this purpose, my Health Care Surrogate shall be my “legally authorized person” as defined in Florida Statute Section 470.002(18).”