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Who is Making Health Care Decisions for You?

July 31, 2020 by in ESTATE PLANNING

Now Is the Time to Choose Your Health Care Surrogate!

This week our family experienced firsthand the frightening perils of COVID-19. A close family friend, who shares our table at every Thanksgiving gathering and my wife and children call “Uncle”, was admitted to the hospital due to COVID-19 related complications. With an uncertain prognosis and minimal consciousness, it quickly became apparent that the hospital was unaware of who was serving as his designated health care surrogate. As families in crisis do, between many phone calls and texts, we anxiously scrambled to locate this information and get it into the right hands.

Designating a health care surrogate is always advisable. Now, with a pandemic upon us, it is essential. What does a health care surrogate do? A health care surrogate has the authority to speak with medical professionals, make medical decisions, and manage medical care on your behalf if you are incapable of doing so. Most importantly, the health care surrogate acts as your advocate to navigate through the complex health care system. A health care surrogate can also be given the authority to act on your behalf even if you are not fully incapacitated. For instance, if you are heavily medicated and your memory is temporarily impaired.

How do I designate a health care surrogate? You will need a health care surrogate designation form. A health care surrogate designation is part of the package of estate planning documents our firm, Lacey Lyons Rezanka Attorneys at Law, provides to clients. The document must be executed in front of two witnesses. The individual designated as the health care surrogate cannot be a witness. Also, one of the two witnesses cannot be a relative.  I strongly recommend to all of my clients, as their estate planning attorney, to designate one primary surrogate and at least one back-up, but preferably two. Choose people who understand your wishes and (hopefully) have your best interests at heart. Although, face-to-face meetings might not be advisable now, consider at least speaking with your surrogate via phone or video conference. Ask if they are willing to accept and carry out your wishes. Make your wishes clear and succinct in order that if the time comes, the surrogate is confident with their directives.

What happens if I don’t have a health care surrogate? According to Florida Statute 765.401, a health care proxy is appointed based on the following “order of priority” to a patient:

  • Judicially appointed patient guardian
  • Patient’s spouse
  • Majority of patient’s adult children who are reasonably available for consultation
  • Patient’s parent
  • Adult sibling or majority of adult siblings who are reasonably available for consultation
  • Patient’s adult relative who has exhibited special care and concern and has regular contact
  • Patient’s close friend
  • Licensed Clinical Social Worker

There are many problems with the list above. What if your closest living relative is a brother or uncle you haven’t seen or spoken to in years? If you have more than one adult child, will they all agree on the same course of action? How does a relative prove they “exhibited special care and concern and has regular contact” with the patient?  How do you define someone as a “patient’s close friend”?

Designating your health care surrogate in compliance with the formalities of Florida law is required to avoid the default list above. Choosing a health care surrogate is possibly one of the biggest and most consequential decisions made pertaining to your life. And it should be YOUR choice. 

Located in Downtown Melbourne and serving Brevard County for nearly 2 decades, Mr. Lacey concentrates his practice in the areas of Wealth Preservation, Tax and Estate Planning, Medicaid Planning, Elder Law and Post-Death Administration. Mr. Lacey is experienced in the formulation of estate plans to achieve the clients’ testamentary goals, maximize their tax benefits and minimize probate costs. He recognizes that some people are at higher risk of lawsuits and judgments. These people include professionals (doctors, lawyers, accountants), business and property owners, the very wealthy, people facing imminent legal, financial or medical problems and people with high risk jobs. Many of these individuals have benefited from Mr. Lacey’s vast knowledge of proper asset protection planning that can ensure that all of their personal and business assets are protected in the event of large unforeseen nursing home costs or lawsuit and judgment.

Stephen J. Lacey, J.D., LL.M-Tax, is with the law firm of Lacey Lyons Rezanka, Attorneys at Law, in Melbourne, Florida. Contact Attorney Stephen J. Lacey at 321-608-0890 or click on https://www.laceyandlyons.com/

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