If you are seeking advice on what advance directive is right for you or what to write, we recommend you consult with your physician, your attorney or both.
If you live in Collier County and wish to place a legally executed (signed and properly witnessed) advance directive on file at NCH Naples Hospital you may do so during normal business hours by bringing it to the medical records department of the hospital and requesting it be put on file. If you have previously been a patient at NCH Naples Hospital or North Naples Hospital you should request the advance directive be placed in your medical records.
General Information About Advance Directives
Accident or illness can take away a person’s ability to make health care decisions. But decisions still have to be made. If you cannot do so, someone else will; and sometimes this causes the burden, delay and expense of court proceedings. You should consider whether you want to take steps now to control these decisions so that they will reflect your own wishes.
Advance Directive
An advance directive is a witnessed document or witnessed statement in which you give instructions or desires concerning any aspect of your health care. This term includes a living will, the designation of a health care surrogate or the making of an anatomical gift.
Advance directive forms suggested by the Florida legislature are included above in pdf file format. These forms may be modified to meet your specific needs or health care desires. If you wish to modify the forms, you should discuss your modifications with your attorney.
The Florida legislature made changes to the law governing advance directives which took effect July 1, 2001. Any advance directive made prior to October 1, 1999, will be honored by the state of Florida provided it was legally effective when written.
If you decide to make a living will or other type of advance directive, it is recommended that you give a copy to your doctor, your closest relative or friend and any hospital, nursing home or other facility where you are receiving care. If you change your mind, make sure that you advise all those to whom you have given copies.
An advance directive will in no way affect insurance. Also, it cannot be required as a condition for being insured or receiving health care services. A health care provider or facility may not require you to execute an advance directive or to execute a new advance directive using the facility’s or provider’s forms. Your advance directive will become part of your medical record and travel with you if you are transferred to another facility.
Information on the Types of Advance Directives
Living Wills
A living will (or declaration) is a witnessed document or witnessed statement of your wishes regarding the use of life-prolonging procedures. A living will is different from the will which disposes of your property after your death.
Healthcare Surrogate Designation
If you are physically or mentally unable to make health care decisions for yourself, close family members or a close friend usually will decide with the doctor and nurses what is best for you. Most of the time, that works. But sometimes everyone doesn’t agree about what to do. One way to help ensure that your wishes will be honored is to name someone you trust who will make medical decisions for you. You may name this person in a living will (or declaration), in which case such person makes only those medical decisions related to a serious illness or condition that has resulted in an irreversible severe and permanent end-stage condition, a permanent vegetative state or a terminal condition that could cause death.
If you want to name someone you trust to make all other medical decisions for you, including a decision to make an anatomical gift upon your death, when you are physically or mentally unable to do so yourself, you may wish to put this in writing. Remember, if you want this person to also make decisions about the use of life-prolonging machines and medical treatment that might delay death when you are hopelessly ill, name the same person in your living will.
It is advisable to name a replacement in case the person you have chosen to make decisions for you becomes unable or unwilling to do so.
Durable Power Of Attorney For Healthcare
A durable power of attorney for healthcare is another type of advance directive. Like the health care surrogate, it allows you to appoint someone else to make health care choices for you if you cannot make them for yourself. This person has broad power to act on your behalf, including the right to make life-support decisions. The individual that you appoint is known as your attorney-in-fact, although, the person appointed does not have to be a lawyer.
There is no suggested form in the Florida statues for creating a durable power of attorney for healthcare. Since the procedure for creating a durable power of attorney for healthcare may be complicated and legally technical, it is recommended that you obtain the advice of a lawyer if you wish to create this form of advance directive.
Anatomical Gifts
You may express in an advance directive your wish to donate part or all of your body for the purpose of transplantation, therapy, medical research or education. This anatomical gift would take effect upon your death. If you have signed an advance directive indicating your desire to donate all or part of your body the person you have designated as your health care surrogate can make the decision to give an anatomical gift upon your death.
Anatomical Gift Form and Signing Requirements
You may indicate your desire to make an anatomical gift by using the anatomical gift form approved by the Florida legislature and included above for download. This basic form may be modified or expanded to meet your specific needs or health care desires. If you wish to modify the form, you should discuss your modifications with your attorney. The form must be signed by you in the presence of two attesting witnesses. If you are unable to sign yourself, one of the witnesses can sign for you in your presence and at your direction.
Information About the Florida Living Will Declaration
Your Right to Create A Living Will
The state of Florida recognizes your legal right as a competent adult to make an advance directive instructing your physician to provide, withhold or withdraw life-prolonging procedures in the event you are later found mentally and physically incapacitated and you suffer from a terminal condition, have an end-stage condition, or are in a persistent vegetative state. The state of Florida also recognizes your right to designate another person to make health care decisions for you should you become incapacitated and unable to personally direct your medical care.
Definition of Terminal Condition
Florida law defines a terminal condition as a “condition caused by injury, disease or illness from which there is no reasonable medical probability of recovery and which, without treatment, can be expected to cause death.”
Definition of End-Stage Condition
Florida law defines an end-stage condition means an irreversible condition that is caused by injury, disease or illness which has resulted in progressively severe and permanent deterioration, and which, to a reasonable degree of medical probability, treatment of the condition would be ineffective.
Definition of Persistent Vegetative State
Under Florida law, a persistent vegetative state is “characterized by a permanent and irreversible condition of unconsciousness in which there is the absence of voluntary action or cognitive behavior of any kind and an inability to communicate or interact purposefully with the environment.
Definition of Life-Prolonging Procedure
Florida law defines a life-prolonging procedure as any “medical procedure, treatment, or intervention, including artificially provided sustenance and hydration, which sustains, restores or supplants a spontaneous vital function.” The term life prolonging procedure does not include the administration of medication or performance of a medical procedure, when such medication or procedure is deemed necessary to provide comfort or alleviate pain.
Determination of the Patient’s Condition
Your attending or treating physician and at least one other consulting physician must examine you to determine whether you have a terminal condition, an end-stage condition, or are in a persistent vegetative state or may recover mental and physical capacity. The findings of their examination must be recorded in your medical record and signed by each examining physician before life-prolonging procedures may be withheld or withdrawn.
Signing and Witnessing Requirements for a Living Will
Your written living will must be signed in front of at least two subscribing witnesses, one of whom may not be a blood relative or your spouse. If you are unable physically to sign, one of the witnesses may sign the living will for you in your presence and at your direction.
Informing Others About Your Living Will Declaration
It is your responsibility to inform your physician of the existence of your declaration. If you are comatose, incompetent or otherwise mentally or physically incapacitated at the time you are admitted to a health care facility, any other person may notify your physician about the existence of your declaration. If your declaration is in writing, your attending physician, once he or she is notified about the existence of your declaration must make the declaration, or a copy of the declaration, a part of your medical record.
Designation of a Health Care Surrogate in Your Living Will
You may include in your living will declaration additional specific directions, including, but not limited to, the designation of a health care surrogate or agent to make health care decisions for you and to provide informed consent if you are unable to make your own health care decisions or provide your own informed consent. It is not, however, necessary to name a health care surrogate in order to have a valid living will declaration. The person designated as a health care surrogate in your living will cannot sign as a witness on the document.
Living Will Declaration Form
The form approved by the Florida legislature for making a living will declaration is included above in pdf file format available for download. This basic form may be modified or expanded to meet your specific needs or health care desires. If you wish to modify the form, you should discuss your modifications with your attorney.
Decision-Making if There is No Designated or Available Health Care Surrogate
The Proxy
If you have not designated a surrogate in your living will declaration, or if you have not created a living will or any other advance directive, or if you have designated a surrogate but the surrogate or alternate surrogate are not available to serve, Florida law establishes a procedure for selecting a proxy to act for you. Your health care proxy may be chosen from these individuals in the following order of priority:
(1) A court appointed guardian, if one exists, who has the authority to make health care decisions for you. Note, however, that a guardian is not required; (2) Your spouse; (3) An adult child, or if you have more than one adult child, a majority of the adult children who are reasonably available for consultation; (4) One of your parents; (5) An adult brother or sister, or if you have more than one adult brother or sister, a majority of those who are reasonably available for consultation; (6) An adult relative who has shown special care and concern for you and who is familiar with your activities, health and religious or moral beliefs; (7) A close personal friend who is 18 or older who has exhibited special care and concern for you, and who presents an affidavit to the health care facility or to your attending or treating physician stating that he or she is your friend; is willing and able to become involved in your health care; and has maintained such regular contact with you so as to be familiar with your activities, health and religious or moral beliefs.
Before a proxy can make decisions about your health care and treatment, the proxy must comply with Florida laws governing the decision making authority of designated health care surrogates. If you have not created a living will or any other advance directive, the proxy can decide to withhold or withdraw life-prolonging procedures, if you are found to have a terminal condition, an end-stage condition or are in a persistent vegetative state and the proxy’s decision is supported by clear and convincing evidence that you would have made the same decision had you been capable, or if there is no indication of what you would have chosen, that the decision is in your best interest..
How to Amend or Revoke Your Living Will Declaration
You may amend or revoke your declaration at any time. Your living will declaration may be amended or revoked in any of the following ways: a) by means of a signed, dated statement indicating your intention to amend or revoke your living will; b) by means of physically canceling or destroying your living will declaration or by having someone else cancel or destroy your living will declaration in your presence and at your request; c) by means of an oral expression indicating your intent to amend or revoke your living will declaration; or, d) by means of subsequently creating another living will declaration which is materially different form your previous one. Unless otherwise provided in the advance directive or in an order of dissolution or annulment of marriage, the dissolution or annulment of your marriage revokes the designation of your former spouse as a health care surrogate.
Storing Your Living Will Declaration
Keep the original copy of your living will declaration in a location that can easily be reached in the event of an emergency.
A Final Reminder
Be sure to give copies of your living will declaration to family members or close friends who might be involved in decision-making for you. They should know where you keep the original, which you should review periodically to reaffirm your continuing conviction about these important matters.
Information About Florida Health Care Surrogates
Your Right to Appoint a Health Care Surrogate
Under Florida law you may designate a person to serve as your health care surrogate or agent to make health care decisions for you, including the decision to make an anatomical gift, and to provide informed consent for you if you are incapable of making health care decisions or providing informed consent for yourself. Your designation may take place in your living will declaration or you may make a separate designation using the Florida health care surrogate form.
The Health Care Surrogate Form
A form approved by the Florida legislature to appoint a health care surrogate is included above in pdf file format. This basic form may be modified or expanded to meet your specific needs or health care desires. If you wish to modify the form, you should discuss your modifications with your attorney.
Signing and Witnessing Requirements
To establish a valid document, you must sign the health care surrogate form in the presence of two attesting witnesses. If you are unable to sign the document, you may ask another person to sign it for you. If another person signs the document for you, it must be done in your presence. The person that you appoint as your surrogate cannot act as a witness to the document creating the health care surrogate. Furthermore, at least one of your witnesses cannot be your spouse or a blood relative.
You are also permitted to name an alternate surrogate to serve in the event that your originally designated surrogate is unwilling or unable to serve.
Procedure to be Followed if Surrogates are Unable or Unwilling to Act
In the event that your originally designated surrogate or your designated alternate surrogate are unable or unwilling to act, the health care facility may request the appointment of a proxy to act for you. Specific individuals may be appointed as your proxy to act for you in the following order of priority: a court appointed guardian who has been authorized to consent to medical treatment, if one exists; your spouse; an adult child, or if you have more than one child, a majority of the adult children who are reasonably available for consultation; one of your parents; one of your adult brothers or sisters, or if you have more than one adult brother or sister, a majority of them who are available for consultation; a relative; or a close personal friend.
Authority and Powers of Your Surrogate to Act
Your surrogate’s authority to act starts when you are determined to be physically and mentally incapacitated and ceases if you recover capacity. Unless you specify otherwise, your designated health care surrogate shall have final authority to act for you and to make health care decisions for you in matters regarding your health care during the time you are incapable of making those decisions for yourself, including the decision to make an anatomical gift. If you have not made a living will declaration, the decision to withhold or withdraw life-prolonging procedures may be made by your designated health care surrogate, unless the designation limits the surrogate’s authority to consent to the withholding or withdrawal of life-prolonging procedures. Before your surrogate can make such a decision, he or she must be able to support that decision by clear and convincing evidence that the decision would have been the one that you would have chosen had you been able to make the decision. Your surrogate must also be satisfied that you are both mentally and physically incapacitated with no reasonable probability of recovering capacity and that you have an end-stage condition, are in a persistent vegetative state or in a terminal condition.
Your surrogate may consult with your health care providers and give informed consent to perform medical procedures that the surrogate feels are in your best interest and make health care decisions for you that the surrogate believes that you would have made under the circumstances if you were capable of making such decisions. Your surrogate has access to your clinical records and has the authority to release information and records to appropriate persons to ensure the continuity of your health care. If there is no indication of what you would have chosen, the surrogate may consider what is in your best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn.
Your surrogate may also apply on your behalf for public benefits, such as Medicare or Medicaid funds. Your surrogate may have access to any information regarding income and assets to the extent necessary to make such an application. Your surrogate may also authorize your admission, discharge or transfer to or from a health care facility such as a hospital, nursing home, assisted living facility, home health agency or hospice, as allowed under Florida law.
Restrictions on Your Surrogate
Unless you expressly give your surrogate the authority in writing or your surrogate has received authority from the courts under Florida law, your surrogate may not consent to any of the following: abortion, sterilization, electroshock therapy, psycho-surgery, unapproved experimental treatments or voluntary admission to a mental health facility. Furthermore, unless you have expressly given your surrogate the authority in writing, your surrogate may not withdraw or withhold life-prolonging procedures if you are pregnant and in the period prior to viability of the fetus.
Revoking or Amending Your Health Care Surrogate Designation
You may amend or revoke your designation of a health care surrogate at any time in any of the following ways: a) by means of a signed, dated statement indicating your intention to amend or revoke your designation of your health care surrogate; b) by means of physically canceling or destroying the document creating your health care surrogate or by having someone else cancel or destroy the document in your presence and at your request; c) by means of an oral expression indicating your intent to amend or revoke your designation of a health care surrogate appointment; or d) by means of a subsequently executed advance directive which is materially different from your previous one. Be sure to give copies of your designation of health care surrogate form to family members or close friends who might be involved in decision making for you. They should know where you keep the original, which you should review periodically to reaffirm your continuing conviction about these important matters.
Decision-Making if You are in a Persistent Vegetative State and Have No Advance Directive, Surrogate or Proxy
The Florida legislature created a new mechanism for making decisions for withdrawing or withholding life-prolonging procedures if you are determined to be in (i) a persistent vegetative state, (ii) have not made an advance directive and there is no evidence indicating what you would have wanted under such conditions and (iii) have no family or friends who are available or willing to serve as proxies. A guardian with authority to consent to medical treatment can be appointed by a court to represent your best interests. If your guardian and attending physician, in consultation with the facility’s medical ethics committee (or a community based bioethics committee approved by the Florida Bioethics Network), conclude that your condition is permanent and there is no reasonable medical probability of recovery, then life-prolonging procedures may be withheld or withdrawn if in your best interest.
A Summary Statement of Health Care Policies Regarding Patients’ Rights of Self-Determination
The NCH Healthcare System maintains written policies and procedures regarding advance directives of adult patients which acknowledge each patient’s right to control certain decisions about their medical treatment. It is NCH Healthcare System’s policy:
- To honor the terms of an adult patient’s advance directive to the extent required or allowed by law;
- Not to condition the provision of health care on whether an advance directive has been executed or to otherwise discriminate against patients on that basis;
- To provide written information about advance directives to all adult patients who are admitted to an NCH Healthcare System facility;
- To provide assistance to adult patients who desire and request to make an advance directive;
- To make a patient’s advance directive part of the patient’s permanent medical record;
- To participate in community education regarding advance directives; and
- In the event of a conflict between NCH Healthcare System’s policies and procedures and an individual’s advance directive, intervention may be sought from our bioethics committee. The administrator on-call can be reached at 239-624-4000. After 5:00 p.m., holidays and on weekends, the administrator on-call can be reached through the facility’s telephone operator by dialing zero or 239-624-5000.
For more information or assistance in making an advance directive please contact the clinical outcomes management department at 239-624-4942.
