If an individual becomes unable to make his or her own medical decisions in Michigan and does not have a Patient Advocate Designation or durable power of attorney for healthcare decisions, the individual’s family members, including a spouse, do not automatically have the right to make those healthcare decisions on the individual’s behalf. They may be forced to file for guardianship in the probate court so that a guardian is able to make medical and end-of-life decisions for the individual. In Florida, a “healthcare proxy” may make healthcare decisions on behalf of the individual if he or she does not have Florida-specific healthcare surrogate documents.
- Court-appointed guardian;
- Spouse;
- Adult child or a majority of the adult children;
- Parent;
- Adult sibling or a majority of the adult siblings;
- Adult relative who has maintained regular contact with the individual and who is familiar with the individual’s activities and beliefs;
- Close friend, defined as “any person 18 years or older who has exhibited special care and concern for the patient, and who presents an affidavit to the health care facility or to the attending or treating physician stating that he or she is a friend of the patient; is willing and able to become involved in the patient’s health care, and has maintained such regular contact with the patient so as to be familiar with the patient’s activities, health, and religious or moral beliefs”; and
- Licensed social worker.
Although the healthcare proxy laws in Florida may help in some cases where the individual does not have appropriate estate planning documents, the Terri Schiavo case illustrates why the individual should not rely on the healthcare proxy option if possible. Terri Schiavo was a Florida woman who was left in an irreversible persistent vegetative state following a massive heart attack which left her brain deprived of oxygen. She had not executed a Florida healthcare surrogate or living will. Her husband had previously been appointed as her guardian so he had priority to serve as her healthcare proxy. As her healthcare proxy, Michael opted to remove her feeding tube on the basis that she would not have wanted life-sustaining treatment in her condition. Ms. Schiavo’s parents disagreed that she would have wanted life-sustaining treatment to cease, which ultimately resulted in years of protracted litigation and national attention. The court battles most likely would have been avoided had Ms. Schiavo executed the proper estate planning documents to specify her wishes regarding life-sustaining treatment.
Florida’s healthcare proxy option provides a safety net if an individual has not created estate planning documents but should not be relied on unless absolutely necessary.
