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Avoiding Costly Legal Battles with Powers of Attorney

Wed, Mar 16, 2016 at 4:20PM

On March 29, 2015, a DeLand man fell, hitting his head on the concrete, after climbing down from his attic. He has been in a coma since the accident. Now, the family is battling in court over his right to die and his right to stay alive by artificial means. We presume that he did not execute a living will or advance directive, if he had executed such documents, he would have designated one or two people to make the decisions with his doctor, and he would have avoided a court battle. As of Thursday, April 30, 2015, the Judge stated he wanted testimony from a neurologist regarding the "persistent vegetative state" before issuing a decision.

According to Florida Statute, "if an incapacitated or developmentally disabled patient has not executed an advance directive, or designated a surrogate to execute an advance directive..." a healthcare proxy may be appointed to act on behalf of the incapacitated person. Although Florida Statutes permit a health care proxy to be appointed, the proxy does not have full decision-making power. If a person(s) files a petition, in the court, stating that the incapacitated person would want the opposite of the health care proxy's actions then the court becomes involved. Again, if a living will was executed, then the health care surrogate would have full decision-making power.

A living will provides that life will not be artificially prolonged when there is no hope for recovery. The patient's physician and another consulting physician must determine that the patient has a terminal or end-stage condition, or is in a persistent vegetative state, and there is no medical probability for recovery.

Every adult should prepare for possible loss of mental capacity, whether by accident or other cause, by signing a durable power of attorney and a living will. Once a person has lost capacity, it is too late.

Avoiding Costly Legal Battles with Powers of Attorney

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