Articles for ELC Members

11 Tips & Treasures of Living Wills

Your goal is to set to paper your client’s health care directions in advance of needing them. You want your client’s wishes to be honored and most want their surrogates and family to have as safe and easy a time of it as possible. Here are some easy and very important “drafting opportunities” to consider when people do Advance Health Care Directives. Advance Health Care Directives are health care decisions we make in advance of needing them and include such documents as Living Wills, Health Care Surrogate Designations (called “Proxies” in some states) and Health Care Power of Attorneys. I give each of these tips as if they are for your benefit, as they should be, but also for your clients:

1) You are unique in your personhood. Examine your own wishes. Do not think you need to fit your own wishes into a form created by someone else. Some Elder Law Attorneys can help you ask yourself the important questions and then put it to paper in a manner most likely to be honored. If you must sign a “form,” know that there are many forms out there and you should examine many to find the one that best approximates your own wishes.

2) Pain medications are sometimes deemed “artificial procedures” and are therefore sometimes withheld when a document mandates that no artificial procedures be used. Most people want to die in as painless a fashion as possible. Be specific to indicate that you want pain medications to be used if they will lessen your suffering even if those pain medications may dull your consciousness or indirectly shorten your life.

3) Consider a liability shield for the doctors and facilities. Some doctors and health care facilities are afraid of being sued when dealing with living wills and health care surrogates. One reason why these advance health care directives are not honored is because of fear of a law suit. Consider including language in your documents that “indemnifies” the health care providers, facilities and your surrogates from any liability incurred as a result of their obedience to your directions. Do not underestimate the importance of this provision. People and institutions will be much more likely to honor your wishes if they believe themselves to be protected from liability for doing so.

4) Depending on your circumstances, it is usually best not to require all surrogates to sign off on directions. When health care decisions need to be made, those decisions often cannot wait to get all of the surrogates in the same place at the same time. Your document should be crystal-clear on how many signatures are necessary. Scott Solkoff usually recommends that people allow only one signature to accomplish a health care decision even if other surrogates are available to act. There are pros and cons. Discuss this issue with the Elder Law Attorney.

5) Make sure your Surrogate has all necessary credentials. The health care advance directive law is found in Chapter 765 of the Florida Statutes but there are other state and federal laws that affect your surrogate’s ability to act for you. For example, your documents should take into consideration Chapter 470 of Florida Statutes which allows for a “legally authorized person” to be designated to make funeral arrangements. Without this, your funeral arrangements might be made by a person not of your choosing.

6) Your documents should also take into account federal privacy laws. Many lawyers have reported that hospitals and nursing homes have refused to allow a Health Care Surrogate to access clinical records unless the documents explicitly point to HIPAA and related privacy laws.

7) Experimental medical procedures are sometimes desired and your documents should specifically authorize your surrogate to consent or withhold consent to experimental medical procedures if that be your wish.

8) If hospitals or other health care providers do not get full payment for your care, they might go after your Surrogate who authorized the care. Your documents should explicitly state that “My Surrogates shall not be liable or responsible for any costs or expenses of my medical treatment or care and a Surrogate’s signature on admissions papers shall not make that Surrogate liable for any costs and expenses incurred for my care, it being understood that the Surrogate acts for me and in my stead and I alone would be liable or responsible for such costs and expenses.” This one provision can save great grief and a considerable amount of money.

9) Make the Advance Health Care Directives “self-proving”. In Florida, all Last Wills & Testaments can be made self-proving. This means that the witnesses do not actually need to come to court to prove that the person actually signed the Will. A Last Will & Testament is made self-proving with the addition of an affidavit (a sworn statement) attached to the Will. It is not the custom to use these affidavits for advance health care directives but it is a smart idea. The inclusion of the “self-proving affidavit” makes the document look more official because the witnesses are making a statement that the rules of signing have been followed. If ever the document requires to be proved in court, this affidavit may prove helpful. There is no disadvantage other than that it takes the attorney a little more time.

10) Consider organ donations and your wishes regarding an autopsy. Including your wishes regarding organ donations and autopsy in your advance health care directives will better ensure that your wishes are made known. Most people are unaware that a Surrogate can donate your body or make organ donations even if you never consented to same during your lifetime. If you do not want this to be a possibility, you want to make that clear. If you do want to donate part or all of your body, then you also need to make your wishes known.

11) Make sure people know about your Advance Health Care Directives. Your Elder Law Attorney can create the best, most customized document in the world but if nobody knows about it, it does not help you. Immediately upon signing the documents, you should deliver one copy to each of your surrogates and one copy to your primary care doctor and whatever other specialists you are seeing. If you are not giving your Surrogate the original document, tell the Surrogate where you keep the original and make sure it is accessible. Talk to your Elder Law Attorney about other ways to keep your document available. If you update your document, make sure you send the new one to at least all of the people to whom the prior copy had been provided. Make sure you tell them that this new version replaces the older one.


Photo courtesy of NVCO London.

Principal and Lead Instructor Scott Solkoff is a member of the above assocations.


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