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Clearwater & Oldsmar Elder Law Attorney
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Taking Control of Your Healthcare

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Most people enjoy relatively stable and strong physical and mental health during most of their lives. In fact, good health is easy to take for granted until an emergency injury or illness occurs that causes a person to face the vulnerabilities of the human body. As the body ages, debilitating conditions become more likely, and a decent percentage of seniors find themselves needing long-term care in a nursing home facility. Planning for this juncture is a large component of comprehensive estate planning. Living in a nursing home requires a person give up a notable level of autonomy in exchange for round-the-clock medical care that is often beyond the capacity of family members to provide. Further, a significant percentage of nursing home residents are hindered from actively participating in their own medical care due to physical and/or mental impairments that affect communication and comprehension. Without advanced planning, an individual could find themselves receiving medical treatment they do not want, nor would have consented to receive if such a choice was available. Advanced healthcare planning can prevent this undesirable scenario, and give a person more control over how their healthcare is managed if incapacity strikes. A discussion of the options a person can use to direct healthcare decisions when he/she is no longer capable of doing so will follow below.

What Is an Advance Directive?

Medical decisions are some of the most personal matters a person must decide during his/her life. Since each individual must live with the consequences of medical intervention, it only makes sense that he/she would want the ultimate say over what happens. Advance directives essentially allow a person to put mechanisms in place before a medical emergency occurs that permit him/her to exercise control over who makes healthcare decisions and/or the extent to which medical personnel can perform invasive life-saving procedures. These documents are primarily used when a person is unconscious, in a vegetative state or mentally incompetent, any of which will render someone unable to make informed and legally-recognized medical decisions.

Healthcare Surrogate

A healthcare surrogate is a person expressly given authorization by another to make healthcare decisions. This authority may be exercisable immediately, or upon a finding of incapacity, which is determined by an evaluation from a treating physician. Typically, the surrogate has full authority to make all healthcare decisions, which should be in line with the desires or best interests of the person needing assistance, but the person granting the power may limit how extensive this authority is. If no surrogate is named or the designated person is unavailable, the law permits certain individuals to function as proxies for the purpose of making medical decisions. Listed according to priority, these individuals are:

  • A court-appointed guardian;
  • A spouse;
  • Adult children;
  • The patient’s parents;
  • Adult siblings;
  • A close relative familiar with the patient’s wishes; or
  • A close friend.

Living Will

In addition to appointing someone to act as the patient’s voice in healthcare decisions, many people want a say in the administration of life-saving measures, especially when a person has no ability to reasonably recover. These documents, called living wills, allow person to direct the providing, withholding, or withdrawing of life-saving measures when he/she has a terminal illness, is in an end-state condition, or in a persistent vegetative state. Note that before a doctor will follow the directions listed in the living will, which must be executed with some formality, as does the healthcare surrogate, the following conditions must be met:

  • the patient must not have a reasonable expectation of recovering to a capacity to convey his/her wishes directly;
  • the patient has a terminal illness, end-stage condition, or is in a persistent vegetative state; and
  • limitations communicated orally and in writing have been considered.

Speak with an Elder Law Attorney

Your medical care is one of the most crucial aspects of growing older, and should be settled long before end-of-life issues approach. William Rambaum has more than thirty years of experience helping clients with estate planning issues, including healthcare directives, and can advise you on which documents will best address your circumstances and wishes. Contact the Oldsmar office to schedule an appointment.

Resource:

floridahealthfinder.gov/reports-guides/advance-directives.aspx

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