Southwest Florida's Health and Wellness Magazine Health and Wellness Articles
By Steven J. Gibbs, Esq.
Every competent adult has the legal right to make healthcare decisions for themselves. However, medical circumstances resulting from injury or disease can render someone incapacitated and unable to make these decisions. When these decisions need to be made for an incapacitated person, an enforceable Florida healthcare directive becomes critical.
What is a Florida Healthcare Directive?
A simple definition of a Florida healthcare directive is an oral or written statement that expresses your wishes for medical treatment in the event of incapacity.
However, there a couple of components to your Florida healthcare directive to be aware of AND these components also related to Florida HIPAA laws. So, a more accurate definition of a Florida healthcare directive may be a package of documents intended to cover your medical decisions if you can no longer make them for yourself.
There are a few terms used to describe the Florida healthcare directive, two of which are Florida medical directive or Florida advance directive or any combination therewith (i.e. Florida advance medical directive). To make things a bit more confusing, some other names for this document are “do not resuscitate” or “medical power of attorney”.
The Components of a Complete Florida Healthcare Directive are the Florida Living Will, the Florida Designation of Healthcare Surrogate, and Florida HIPAA Release Documents.
The Florida Living Will
A Florida living will is an oral or written statement that expresses the kinds of treatment options that you want in the event you cannot decide for yourself. The living will often functions as a “do not resuscitate” in dire medical circumstances, and this document was widely discussed in the landmark Terry Schiavo case in Florida.
Several years ago, the Terry Shiavo case in Florida made national headlines. The gist of the case was that a woman, Theresa Marie Shiavo, was in a coma or a “persistent vegetative state” for many years. An interfamily dispute ensued between Ms. Shiavo’s husband (and legal guardian), named Michael Shiavo, and Ms. Shiavo’s biological family. The Shiavo family advocated that Ms. Shiavo was responsive and desired to be kept alive by the feeding tube as life support, whereas Michael Shiavo contended that she would not have wanted to remain kept alive in this situation. Ms. Shiavo’s diagnosis and the fact that she had no “living will” were key factors in this protracted legal battle that lasted for almost fifteen years.
The Shiavo case prompted the involvement of Florida’s legislature and even Governor Jeb Bush, and in the end, it was concluded that Ms. Shiavo would have wished to be “allowed to die” in these circumstances. Thereafter, the Florida legislature expanded the prognosis to allow the denial of life-supporting treatment if there is a diagnosis of EITHER a “persistent vegetative state,” “irreversible end-
stage condition” and a “terminal condition.” The Shiavo case prompted national action and illustrated how important it is to make these kinds of decisions in advance when we have the ability to do so.
The Florida legislature has sinced amended the statutes so that life support may be removed where any 1 of 3 prognosis exists which are: 1. Persistent vegetative state 2. Terminal conditions or 3. Irreversible end stage condition. You must review your living will to see if these prognosis are mentioned and to assure that you have initialled at least 1 of them…
The Florida Designation of Healthcare Surrogate
Whereas the Shiavo case example concerns the living will” component of the Florida healthcare directive discussed above , there is also the designation of healthcare surrogate (or healthcare power of attorney). The function of this document to designate the person (or persons) who is empowered to enforce your medical wishes as expressed in your living will. This key part of the healthcare directive was recently updated in Florida to require that the specific powers granted now must be separately initialed by the concerned person. The health care surrogate role functions very much like the durable power of attorney, which was recently updated in Florida in a similar way. The distinction between the two is that the designation of healthcare surrogate is concerned with medical decisions, and the durable power of attorney is concerned with business and financial decisions. The two different roles specified in these two documents may be filled by the same or different people.
HIPAA Documents in Florida
In addition to the Florida living will and designation of healthcare surrogate, I recommend that folks prepare HIPAA release documents as part of the Florida healthcare directive documents. HIPAA stands for the Health Insurance Portability and Protection Act, and in part, this federal law protects the privacy of individuals concerning their medical records. Thus, to release medical records to third parties, a HIPAA release document is required.
HIPAA documents have risen to “front and center” status in the world of medical estate planning documents because they allow family members access to medical records. Hospitals and doctors have become extremely cautious due to the strict privacy laws and potential for litigation under HIPAA.
The big difference in the sunshine state concerns the HIPAA documents because Florida is the only state in the USA that legislatively requires HIPAA documents to be updated every 24 months. So if your documents were signed more than 24 months ago, it may be time to have them reviewed and newly executed to ensure the presumption of reliability. Also, because the HIPAA documents are required to be updated, I suggest that it is a good practice to go ahead and update your other Florida healthcare directive documents just to stay current. Although your Florida living will and designation of healthcare surrogate are not invalidated after 24 months, like other legal documents, the older they are, the more likely they will be subject to scrutiny by hospitals and family members.
Steven Gibbs founded the Gibbs Law Office in January 2009, committed to providing client-centered legal services.
Steve as he would rather be called, is not your typical attorney. If you appreciate the staunch egotistical mannerism of most firms, you will be delighted with Steve’s unpretentious approach to educating and then assisting his client. Instead of giving you his complacent and lofty ideas, he would rather pursue your expectations with professional conversation about resolving your concerns under the Law. It’s your life and it’s his job to make your legal expectations come true while using years of his guidance and knowledge.
Steve was admitted to the Minnesota Bar in 1999, the Florida Bar in 2007 and was recently admitted to the California bar. Keeping abreast of law changes in these three States, as well as the United States, assists him in all aspects of the types of law the firm practices.
Along his career path, he was an associate attorney for an insurance defense law firm; an in-house real estate negotiator for Target Corporation; and corporate counsel for Civix, LLC and Vice President for North American Properties where he was responsible for various real estate transactions, including legal issues and negotiating unresolved business issues. Prior to opening Gibbs Law Office, PLLC, he was an associate with the firm of Roberts & Engvalson, P.A. where he gained his knowledge of trusts, estate planing and Wills. He opened his own firm in 2008 and now focuses on laws that will enrich the needs of his clients throughout their lives and those of their children. The firm has developed a practice dealing only with Trusts and Estate Planning, Wills, Medicaid Planning, Elder Law, Real Estate, Business Law and Probate.
Quoting from Steve “I decided to practice in areas that families will need as they progress down life’s path. To help them with a solid foundation that will carry them throughout there lives is a rewarding experience for me and my staff.”
Steven J. Gibbs, Esq.
Gibbs Law Office, PLLC
8695 College Parkway #2330
Fort Myers, Florida 33919
Phone: 239-415-7495
