Lewis Law Office, P.A.

During the past 10 years the public has been hearing repeatedly about “HIPAA”, Healthcare Surrogate Designations, Living Wills and Organ & Tissue Donation. Yet many people do not fully understand what they are for or whether they should have them. Florida, like many states, now makes it fairly easy for a person to name other individuals to assist them with obtaining medical and emergency services. Many hospitals and other medical providers have generic basic forms they request if a patient doesn’t have one already. The minimum legal requirements are generally found in these basic forms, but if you want to have your wishes fully provided, you may want to have individualized documents prepared the provide your specific desires for you and your family. Consider the following types of documents:

1. Health Care Surrogate Designation (Power of Attorney for Healthcare)

   F.S. §765.201-205

   You appoint an agent to temporarily MAKE DECISIONS for your medical care when you are unable to consent or make decisions

2. Medical Proxy

   F.S. §765.401

   Applicable when the patient has not signed an advance directive to designate a Health Care Surrogate, or if the designated Health Care Surrogate is no longer available to make decisions. This is a statutory list of persons, in order of priority, that may make health care decisions for the patient. The Medical Proxy may temporarily MAKE DECISIONS for your medical care. The list includes family and non-family individuals.

3. Power of Attorney provisions for Health Care

   F.S. § 709.2109(3)(b), and §709.2201(2)(c)

   If the Health Care Surrogate Designation and the provisions of a POA are in conflict, the Health Care Surrogate controls unless the POA is later executed and expressly states otherwise. F.S. § 709.2109(3)(b)

4. Preneed Guardian

   F.S. §744

   A Designation and Declaration of a Preneed Guardian is an advance directive by you to declare and appoint the person to be appointed as the guardian of your person and/or your property in the event of your subsequent incapacity.

   Can be filed in the court when signed, or later filed by the named guardian when it becomes necessary. Must be filed within 20 days of guardian assuming guardianship duties.

5. Living Will

   F.S. § 765.301-309

   Also known as a “Declaration of Intent”, a Living Will allows you to appoint an agent before you become permanently incapacitated to:

   CONSENT TO THE TREATMENT YOU ALREADY SELECTED for

   • Life Prolonging Treatment/Equipment or not

   • Nutrition and Hydration or not

   • Or no medical intervention to sustain life

   This is NOT the same as a DNR (Do not resuscitate request)

6. Organ & Tissue Donation

   F.S. § 765.301-309

   An Advance Directive to consent to Anatomical Gifts with the giving of “Informed Consent” by:

   Organ & Tissue Donor Information Card

   Donor Registry (including Driver’s License)

   By Will, Living Will, or other Advance Directive document.

   By the person’s designated Health Care Surrogate; and by

   Family members, in priority listed by statute, followed by a guardian, and then by a “representative ad litem” appointed by court order

   An Advance Directive is revocable during life, and becomes irrevocable after donor’s death.

7. HIPAA Authorization

   The Health Insurance Portability and Accountability Act of 1996 (HIPAA) protects disclosure of protected health information.

   Standards for Privacy of Individually Identifiable Health Care Information are provided in federal law at 45 CFR Parts 160 and 164.

   Written authorization may be granted by a patient for release or disclosure of protected health information to “Authorized Recipients” under 45 CFR §§ 164.502(a)(1)(i) and (iv), 164.502(a)(2)(i), 164.524 and 164.528.