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Health Care Advance Directives, Living Wills and Do Not Resuscitate Orders

May 10, 2007 Articles Trusts & Estates

Florida has come a long way in defining the rights of individuals to set forth their health care wishes in the event that they are not able to make their wishes known. The state has developed significant separate documents concerning health care.

Health Care Advance Directives

A Health Care Advance Directive is a description of an individual’s wishes concerning any aspect of his or her health care. An Advance Directive should be in writing and signed in front of two witnesses, one of whom is not a relative of the patient and neither of whom is designated as a health care agent or surrogate in the Advance Directive. An Advance Directive may also be made orally, but this is a poor substitute. The patient may be unable to make the declaration orally, or questions may arise concerning how informed the patient is or whether the patient is in a proper state of mind to make a wise judgment on the matter. An Advance Directive appoints a person as a health care agent or surrogate to make health care decisions for and obtain health care information about the patient, including providing informed consent for medical treatment in the event that the patient is incapacitated. From personal experience, we know that many times a person does not go from good health directly to a situation calling for a living will. People may suffer from strokes, heart attacks, or automobile accidents which are not life-threatening but render them unable to deal with the medical issues and paperwork so common today. The health care agent holding a Health Care Advance Directive can sign medical authorizations and obtain clinical records or other information necessary to make informed medical decisions. The health care agent can also apply for insurance or other third-party benefits and process Medicare and similar claims.

Obtaining clinical records, dealing with insurance claims, and authorizing the release of information contained in the clinical records is more difficult today than it has been in the recent past. Because more and more medical information is available on computers, and because computer information can move faster and more easily than paper records, federal privacy rules were passed under the federal Health Insurance Portability and Accountability Act, generally referred to as HIPAA. Anyone who has been to a doctor’s office or filed an insurance claim in the last few years knows that the forms authorizing the release of information must be signed to comply with both HIPAA and state laws protecting the confidentiality of medical information. If the person being treated is unable to sign or act on his or her own behalf, having a Health Care Advance Directive that gives another person that power will resolve a lot of issues, particularly if the patient has no spouse or adult child with them at the time.

A Health Care Advance Directive usually contains information about a patient’s own health care wishes for some routine medical decisions, an appointment of surrogate decision-maker, and a living will component. The appointment of the surrogate is primarily designed to permit the holder to deal with the medical establishment from a records and information point of view and to provide the holder with authority to make medical decisions that are not otherwise described in the Advance Directive. End-of-life decisions are addressed in living wills, but the holder of the Advance Directive can be authorized to make that final decision as well, as explained in more detail below.

Living Wills

The Florida Legislature set forth a statement of philosophy or policy in the living will statute as well as setting forth specific statutory directives. Florida Statute Section 765.102(3) states as follows:

The Legislature recognizes that for some the administration of life-prolonging medical procedures may result in only a precarious and burdensome existence. In order to ensure that the rights and intentions of a person may be respected even after he or she is no longer able to participate actively in decisions concerning himself or herself, and to encourage communication among such patient, his or her family, and his or her physician, the Legislature declares that the laws of this state recognize the right of a competent adult to make an advance directive instructing his or her physician to provide, withhold, or withdraw life-prolonging procedures, or to designate another to make the treatment decision for him or her in the event that such person should become incapacitated and unable to personally direct his or her medical care.

The living will is a document which is signed by the individual in the presence of two subscribing witnesses, one of whom must not be a spouse or a blood relative of the individual. As with an Advance Directive, it is far better to make a written living will well in advance of when you might need to invoke it. If the circumstances change, living wills can be revoked. Appropriate language for a living will would be as follows:

If at any time I have a terminal condition, an end-stage condition, or if I am in a persistent vegetative state, and if my attending or treating physician and another consulting physician have determined that there is no reasonable medical probability of my recovery from such condition, I direct that life-prolonging procedures be withheld or withdrawn when the application of such procedures would serve only to artificially prolong the process of dying, and that I be permitted to die naturally with only the administration of medication or the performance of any medical procedure deemed necessary to provide me with comfort care or to alleviate pain.

Optional additional language:

I desire that nutrition and hydration (food and water) be withheld or withdrawn when the application of such procedures would serve only to artificially prolong the process of dying. Accordingly, I specifically direct that artificial methods of providing nutrition and hydration (including, but not limited to, nasogastric tubes) not be used if such procedure would serve only to artificially prolong the process of dying.

Alternative language:

I specifically prohibit my Health Care Agent from consenting to the withholding or withdrawal of life-prolonging procedures. I understand the full import of this declaration, and I am emotionally and mentally competent to make this declaration.

Multiple copies of the living will should be signed. One should be given to the primary care physician. Generally, a brief discussion with the physician is worthwhile. Any questions which the physician may have concerning the living will can be addressed, along with any concerns on the part of the patient. A copy should be given to the person who is designated as the decision-maker, and a copy should also be kept at the home in a safe place. We find, today, that living wills are generally well accepted and that health care providers understand how these documents are to work.

Do Not Resuscitate Orders

A third document addressing end-of-life issues is the pre-hospital Do Not Resuscitate Order. Like an order that might be entered once a patient is in the hospital and has, after discussion with his or her physician, decided that no aggressive resuscitation measures should be taken in the event of a cardiac or pulmonary (breathing) arrest, a pre-hospital Do Not Resuscitate Order is a physician’s order directing that no resuscitation efforts be made in the event of such an arrest outside of the hospital. A pre-hospital Do Not Resuscitate Order or DNRO is a very significant and serious document. The DNRO notifies emergency response personnel, or emergency room personnel, of a patient’s wish to refuse emergency resuscitation and allows these health care providers to honor those wishes because it is a physician order. A DNRO is typically used by a person who is in an end-of-life situation and has determined that her or she no longer wishes to be resuscitated. As noted, a DNRO must be signed by a physician. In order to be valid, and to make it more readily apparent to emergency personnel, it must be on yellow paper and is typically kept next to the patient or if at home on a refrigerator door or similar place so that it will be readily available in the event of an emergency. A smaller copy is also usually kept in the person’s wallet. Persons interested in Do Not Resuscitate Orders should have a thoughtful discussion with their physician prior to obtaining one. The State of Florida has a very good website concerning Do Not Resuscitate Orders at

Contemplating health care and the possibility that you or your loved one may not be able to direct his or her own health care treatment is a difficult and sobering consideration. It is, however, both prudent and caring to set forth your wishes in the event that health care decisions have to be made on your behalf. The Health Care Advance Directive gives the necessary authority to get the information to make wise decisions. The living will gives direction on what treatment should be used when a person is nearing the end of life. The DNRO takes the living will one step further. What is appropriate for each individual will depend on the individual’s personal feelings and health situation. By providing guidance in advance, much heartbreak, hurt feelings and expense can be avoided. Whatever decision is made, it is the making of a decision and setting it forth that is the wisest course.