Proceedings in Accordance with a Living Will

By: Glenn M. Mednick

Florida statutorily authorizes the making of a living will or written declaration by a competent adult which directs the provision, withholding, or withdrawal of life-prolonging procedures.  Section 765.302(1), Fla. Stat.  The principal must have a “terminal condition”, an “end-stage condition”, or be in a “persistent vegetative state”.  Id.  All of these terms are defined in Section 765.101, Fla. Stat.  A competent individual has the constitutional right to refuse medical treatment regardless of his or her medical condition.  In re Guardianship of Browning, 568 So. 2d 4, 10 (Fla. 1990).  This right is not lost or diminished by virtue of physical or mental incapacity or incompetence.  Id at 12.  Section 765.304(2), Fla. Stat., sets forth the requisite determinations which must be made before proceeding in accordance with the principal’s living will.  Assuming that you are a surrogate designated in the living will to carry out the provisions of the declaration or a guardian of the principal’s person, what actions should you take in order to honor the principal’s wishes while minimizing your exposure?

In In re Guardianship of Browning, the Florida Supreme Court held that Mrs. Browning’s constitutional right of privacy could be exercised by a legally appointed guardian, and by proxies or surrogates such as close family members or friends.  However, they cautioned that “when the patient has left instructions regarding life-sustaining treatment, the surrogate must make the medical choice that the patient, if competent, would have made, and not one that the surrogate might make for himself or herself, or that the surrogate might think is in the patient’s best interests.” They held therein that the state’s interest do not outweigh the right of the individual to forego life-sustaining measures.  However, they cautioned that “[b]efore exercising the incompetent’s rights to forego treatment, the surrogate must satisfy the following conditions:

1. The surrogate must be satisfied that the patient executed any document knowingly, willingly, and without undue influence, and that the evidence of the patient’s oral declarations is reliable;

2. The surrogate must be assured that the patient does not have a reasonable probability of recovering competency so that the right could be exercised directly by the patient; and

3. The surrogate must take care to assure that any limitations or conditions expressed either orally or in the written declaration have been carefully considered and satisfied.

Likewise, when a proxy has been designated to make the decision without explicit instructions from the patient, the proxy must satisfy the following conditions:

1. The proxy must be satisfied that the patient executed the written designation of proxy knowingly, willingly, and without undue influence; and

2. The proxy must be assured that the patient does not have a reasonable probability of recovering competency so that the right could be exercised directly by the patient.

In determining whether the patient may recover competency or whether a medical condition or limitation referred to in the declaration exists, the surrogate or proxy must obtain, and may rely upon, certificates from the patient’s “primary treating physician” and “at least two other physicians with specialties relevant to the patient’s condition.”

The Florida Supreme Court observed that Mrs. Browning’s wishes were conditional as “[s]he indicated that her decision to refuse treatment was limited to a time when she had a ‘terminal condition’ from which her attending physician determined that there could be ‘no recovery’ and that ‘death [was] imminent.’ Thus, in a case like this one, the surrogate’s conclusions as to those matters could become additional bases of challenge.”  Id. at 17.  While the Florida Supreme Court was satisfied in that case that the surrogate’s conclusions were correct, they relied upon what they deemed to be “clear and convincing evidence  . . . to support a finding that Mrs. Browning suffered from a terminal condition.  Under these circumstances, the surrogate was correct in instructing Mrs. Browning’s health care providers to discontinue all life-sustaining procedures in accordance with Mrs. Browning’s wishes.” 

In re Guardianship of Browning adopted a clear and convincing evidence standard, which was subsequently applied in cases such as Schindler v. Schiavo (In re Schiavo), 780 So. 2d 176, 179 (Fla. 2d DCA 2001).  In most cases, this will be the point in time where the designated proxy or surrogate encounters the greatest level of concern and foreboding.  Fortunately, the Florida Supreme Court by footnote 17 in In re Guardianship of Browning requested the Probate and Guardianship Committee of The Florida Bar to submit to the Court a proposed rule establishing procedures for judicial intervention as required therein.  The rule submitted and promulgated in response thereto is Florida Probate Rule 5.900.  The Committee Notes to Fla. Prob. R. 5.900 state in pertinent part that:

“The promulgation of this rule is not intended to imply that judicial intervention is required to terminate life-prolonging procedures.  

Practitioners should note that the criteria and standards of proof contained in Browning differ from the criteria and standards of proof presently existing in chapter 765, Florida Statutes.”

Florida Prob. R. 5.900 provides the mechanism for the guardian, proxy and/or surrogate who does not want to want to unilaterally decide whether to discontinue life-sustaining procedures.  For purposes of the approach under Florida Prob. R. 5.900, the trial determines whether the evidence is sufficient to allow it to make a decision for the ward to discontinue life support.  In this context, the trial court essentially serves as the ward’s guardian. Id.  A proceeding for expedited judicial intervention concerning medical treatment can be brought by any interested adult person and is commenced by the filing of a verified petition.  Florida Prob. R. 5.900 dictates the contents of the verified petition, who must receive notice of the petition and the preliminary hearing (unless waived by the court), and requires that a preliminary hearing on the petition be conducted within 72 hours after the filing of the petition.  The court can either rule on the requested relief after the preliminary hearing, or conduct an evidentiary hearing not later than 4 days after the preliminary hearing and rule immediately after that hearing.

Glenn M. Mednick, Esquire is the founding partner of the Law Offices of Glenn M. Mednick, P.L. He concentrates his practice to the areas of probate, trust and guardianship litigation; probate, trust and guardianship administration; and commercial and real estate litigation.  His main office is in Plantation, Florida and he maintains a satellite office in Boca Raton, Florida.  He may be contacted at (954) 315-1154 or via email: gmednick@mednicklawgroup.com.

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