Without a doubt, these are uncertain times. How can you prepare for the possibility that COVID-19, the disease caused by the novel coronavirus, may affect you or someone you know? In reality, unless you totally isolate yourself from everyone you know, including your immediate family members, you cannot totally limit your exposure. So what can you do to prepare for the coronavirus? For starters, you can get your Health Care Advance Directives in order, as soon as possible. When it comes to preparing for a health crisis, all Florida residents over the age of eighteen should have two key estate planning documents in place: a Health Care Surrogate Designation and a Living Will. While these documents are important for every adult, they are absolutely vital for elderly individuals and those suffering from comorbidity issues. What is the purpose of these crucial estate planning documents? Here is a brief summary:

Health Care Surrogate Designation + HIPAA Waiver

A Health Care Surrogate Designation allows you to designate one or more persons to make health care decisions on your behalf if you were to become incapacitated. Sometimes referred to as a “Health Care Power of Attorney,” a Health Care Surrogate Designation also must address who is permitted to access your private health information in the event of a medical emergency. This is because a federal law known as “HIPAA“¹ restricts your health care providers from sharing your private health information with anyone other than you, unless you have given explicit authorization for them to do so. Giving others access to your private health information is sometimes called a “HIPAA Waiver.” Having a Florida-compliant Health Care Surrogate Designation + HIPAA Waiver during the coronavirus pandemic is essential to a well-rounded estate plan, particularly if you become subject to quarantine – so that your health care providers can communicate openly with your loved ones during your recovery.

Living Will

A Living Will supplements your Health Care Surrogate Designation and sets forth the conditions under which you would (or would not) want life-prolonging measures if you were to become incapacitated. Examples of life-prolonging measures include artificial ventilation, dialysis, tube feeding, CPR, and palliative care. Florida law provides that every competent adult has the right to choose or refuse medical treatment, and this includes end-of-life care. As an estate planning attorney, I frequently am asked about the difference between a Living Will and a DNR (Do Not Resuscitate Order). Essentially, a DNR says that if your heart stops or you stop breathing, that you do not want medical professionals to revive you. This usually is quite different from a Living Will, which in Florida typically contains additional criteria that must be met before life prolonging measures are abandoned. For example, a Living Will may state that if you are totally incapacitated and your primary physician determines that you are also suffering from a terminal or end stage condition or you are in a persistent vegetative state and another physician agrees that even with treatment, there is no reasonable medical probability of recovery, then you would not want life-saving measures (other than pain relief and palliative care). In my practice, I typically only recommend DNRs for clients who are elderly or frail with a very poor quality of life and/or whose condition may be exacerbated by the administration of cardiopulmonary resuscitation.

Other Important Estate Planning Documents

Who is authorized to handle your finances, including paying your bills, if you become incapacitated due to a medical emergency like the coronavirus? Florida law provides that you can authorize one or more persons to make legal and financial decisions on your behalf through a document called a Durable Power of Attorney. In addition to the Health Care Advance Directives described above, it is imperative that every adult Florida resident has a valid Durable Power of Attorney to cover these important decisions. What happens if you become incapacitated and have not designated someone to control your finances through a valid Durable Power of Attorney? For most people, the court will decide for you through a court-supervised proceeding called guardianship. I strongly recommend that you – not the court – should choose who should have access to your finances during an emergency or incapacity situation. While our firm continues to closely monitor the development of COVID-19, we have plans in place to continue operations to assist with our clients’ legal needs. We are happy to accommodate virtual meetings by email and by telephone, please contact us to schedule an appointment.

Additional Resources

For frequently asked questions and answers about Health Care Advance Directives, please visit the Agency for Health Care Administration’s website.