The new REPUKE legislation will nullify ALL LIVING WILLS

[Proud2BAmurkin]

These fucking fascists are out of control.

[Coastie for Truth]

1. The issue with Terri Schiavo

There was no written living will, and the Florida Trial Court judge inferred a verbal living will.

In most states a living will has to be written, witnessed (not by anybody who would under the person's estate), and notarized. Clearly, she had done none of this.

[moobu2]

2. That isnt the law in most states though

Most states allow oral statements to be used to determine your wishes when no living will exists. Again, it is not necessary to have your wishes written down to have life support withdrawn in most states. Of coarse, it is best to insure your wishes will be honored especially if you have some creeps for a family like Terri Schiavo does.

But it looks like after this, it even matter if you have it written down.

[Yosie]

9. My brother at the Bar

Coastie appended:

"In most states a living will has to be written, witnessed (not by anybody who would under the person's estate), and notarized."

He is describing the standard "multi-state/good everywhere" form and guidance - especially useful when family members dispute the question.

I would advise a health care provider client NOT to remove life support in the absence of a fully compliant written directive if there is any dispute among family members.

I've only been in this business for 40 years.
(If you have questions, please feel free to PM me).

[moobu2]

3. Why dont you people at least try to do some research

before you post some false information?

[Coastie for Truth]

6. I have the brochures from

Syracuse Univ Hosp, University of Pittsburgh Medical Center, Stanford Hospital -- all require a witnessed writing.

[moobu2]

10. The Florida statute concerning the absence of a living will

Link to Florida Statutes>

1) If an incapacitated or developmentally disabled patient has not executed an advance directive, or designated a surrogate to execute an advance directive, or the designated or alternate surrogate is no longer available to make health care decisions, health care decisions may be made for the patient by any of the following individuals, in the following order of priority, if no individual in a prior class is reasonably available, willing, or competent to act:

(a) The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability as defined in s. 393.063, who has been authorized to consent to medical treatment, if such guardian has previously been appointed; however, this paragraph shall not be construed to require such appointment before a treatment decision can be made under this subsection;

(b) The patient's spouse;

(c) An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation;

(d) A parent of the patient;

(e) The adult sibling of the patient or, if the patient has more than one sibling, a majority of the adult siblings who are reasonably available for consultation;

(f) An adult relative of the patient who has exhibited special care and concern for the patient and who has maintained regular contact with the patient and who is familiar with the patient's activities, health, and religious or moral beliefs; or

(g) A close friend of the patient.

(h) A clinical social worker licensed pursuant to chapter 491, or who is a graduate of a court-approved guardianship program. Such a proxy must be selected by the provider's bioethics committee and must not be employed by the provider. If the provider does not have a bioethics committee, then such a proxy may be chosen through an arrangement with the bioethics committee of another provider. The proxy will be notified that, upon request, the provider shall make available a second physician, not involved in the patient's care to assist the proxy in evaluating treatment. Decisions to withhold or withdraw life-prolonging procedures will be reviewed by the facility's bioethics committee. Documentation of efforts to locate proxies from prior classes must be recorded in the patient record.

(2) Any health care decision made under this part must be based on the proxy's informed consent and on the decision the proxy reasonably believes the patient would have made under the circumstances. If there is no indication of what the patient would have chosen, the proxy may consider the patient's best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn.

(3) Before exercising the incapacitated patient's rights to select or decline health care, the proxy must comply with the provisions of ss. 765.205 and 765.305, except that a proxy's decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient's best interest.

(4) Nothing in this section shall be construed to preempt the designation of persons who may consent to the medical care or treatment of minors established pursuant to s. 743.0645.

[Coastie for Truth]

11. "If an incapacitated or developmentally disabled patient..."

The devil is in the details, the prefatory clause provides "If an incapacitated or developmentally disabled patient...." and then enumerates proxies and procedural safeguards.

Hardly the general case. "Incapacitated" might apply to Terri Schiavo.

[moobu2]

13. Cant you read? It's right there in black and white.

Then I would suggest you read some of the court documents since you have such an ill informed opinion.

Start here
Abstract Appeal

[Yosie]

14. My learned Brother at the Bar of Justice

I want to thank you for making available to the participants in the forum the Finding and Order of the Trial Court at http://abstractappeal.com/schiavo/trialctorder02-00.pdf.

This makes clear the issues that arise in trying to prove a "verbal medical directive". (See, e.g., pages 3-7)

This is also the function of a court of equity -- even in the states which require a written medical directive -- where a patient has not provided a written directive. That is - even if the state law specifically requires a written directive, a Court of Equity may intervene.

Even in the presence of a written directive - if there is controversy within the family -- I would always advise a health provider client to seek judicial guidance.

[Yosie]

20. Thank you for pointing me to the Florida Statute

The Statute provides forms for both the designate of a Health Care Surrogate and for a Living Will, and, as you pointed out, the procedure to be followed in the absence of these vital instruments.

Terri Schiavo had neither of these - and it was necessary to follow the provisions of 765.401 (the case that you posted).

Here's the text of the Statute, the statutory provisions are in 765.201 et seq., http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=Ch0765/ch0765.htm

765.201 Short title.--Sections 765.202-765.205 may be cited as the "Florida Health Care Surrogate Act."

765.202 Designation of a health care surrogate.--
(1) A written document designating a surrogate to make health care decisions for a principal shall be signed by the principal in the presence of two subscribing adult witnesses. A principal unable to sign the instrument may, in the presence of witnesses, direct that another person sign the principal's name as required herein. An exact copy of the instrument shall be provided to the surrogate.
(2) The person designated as surrogate shall not act as witness to the execution of the document designating the health care surrogate. At least one person who acts as a witness shall be neither the principal's spouse nor blood relative.
(3) A document designating a health care surrogate may also designate an alternate surrogate provided the designation is explicit. The alternate surrogate may assume his or her duties as surrogate for the principal if the original surrogate is unwilling or unable to perform his or her duties. The principal's failure to designate an alternate surrogate shall not invalidate the designation.
(4) If neither the designated surrogate nor the designated alternate surrogate is able or willing to make health care decisions on behalf of the principal and in accordance with the principal's instructions, the health care facility may seek the appointment of a proxy pursuant to part IV.
(5) A principal may designate a separate surrogate to consent to mental health treatment in the event that the principal is determined by a court to be incompetent to consent to mental health treatment and a guardian advocate is appointed as provided under s. 394.4598. However, unless the document designating the health care surrogate expressly states otherwise, the court shall assume that the health care surrogate authorized to make health care decisions under this chapter is also the principal's choice to make decisions regarding mental health treatment.
(6) Unless the document states a time of termination, the designation shall remain in effect until revoked by the principal.
(7) A written designation of a health care surrogate executed pursuant to this section establishes a rebuttable presumption of clear and convincing evidence of the principal's designation of the surrogate.

765.203 Suggested form of designation.--A written designation of a health care surrogate executed pursuant to this chapter may, but need not be, in the following form:
DESIGNATION OF HEALTH CARE SURROGATE


Name:_____(Last)_____(First)_____(Middle Initial)_____
In the event that I have been determined to be incapacitated to provide informed consent for medical treatment and surgical and diagnostic procedures, I wish to designate as my surrogate for health care decisions:

Name:


Address:

____________________________________ Zip Code:__________

Phone:____________________
If my surrogate is unwilling or unable to perform his or her duties, I wish to designate as my alternate surrogate:
Name:


Address:

____________________________________ Zip Code:__________

Phone:____________________
I fully understand that this designation will permit my designee to make health care decisions, except for anatomical gifts, unless I have executed an anatomical gift declaration pursuant to law, and to provide, withhold, or withdraw consent on my behalf; to apply for public benefits to defray the cost of health care; and to authorize my admission to or transfer from a health care facility.
Additional instructions (optional):







I further affirm that this designation is not being made as a condition of treatment or admission to a health care facility. I will notify and send a copy of this document to the following persons other than my surrogate, so they may know who my surrogate is.
Name:


Name:






Signed:


Date:

Witnesses: 1.________________
2.________________


765.204 Capacity of principal; procedure.--
(1) A principal is presumed to be capable of making health care decisions for herself or himself unless she or he is determined to be incapacitated. Incapacity may not be inferred from the person's voluntary or involuntary hospitalization for mental illness or from her or his mental retardation.
(2) If a principal's capacity to make health care decisions for herself or himself or provide informed consent is in question, the attending physician shall evaluate the principal's capacity and, if the physician concludes that the principal lacks capacity, enter that evaluation in the principal's medical record. If the attending physician has a question as to whether the principal lacks capacity, another physician shall also evaluate the principal's capacity, and if the second physician agrees that the principal lacks the capacity to make health care decisions or provide informed consent, the health care facility shall enter both physician's evaluations in the principal's medical record. If the principal has designated a health care surrogate or has delegated authority to make health care decisions to an attorney in fact under a durable power of attorney, the facility shall notify such surrogate or attorney in fact in writing that her or his authority under the instrument has commenced, as provided in chapter 709 or s. 765.203.
(3) The surrogate's authority shall commence upon a determination under subsection (2) that the principal lacks capacity, and such authority shall remain in effect until a determination that the principal has regained such capacity. Upon commencement of the surrogate's authority, a surrogate who is not the principal's spouse shall notify the principal's spouse or adult children of the principal's designation of the surrogate. In the event the attending physician determines that the principal has regained capacity, the authority of the surrogate shall cease, but shall recommence if the principal subsequently loses capacity as determined pursuant to this section.
(4) A determination made pursuant to this section that a principal lacks capacity to make health care decisions shall not be construed as a finding that a principal lacks capacity for any other purpose.
(5) In the event the surrogate is required to consent to withholding or withdrawing life-prolonging procedures, the provisions of part III shall apply.
History.--s. 3, ch. 92-199; s. 1146, ch. 97-102; s. 22, ch. 99-331; s. 10, ch. 2000-295.
765.205 Responsibility of the surrogate.--
(1) The surrogate, in accordance with the principal's instructions, unless such authority has been expressly limited by the principal, shall:
(a) Have authority to act for the principal and to make all health care decisions for the principal during the principal's incapacity.
(b) Consult expeditiously with appropriate health care providers to provide informed consent, and make only health care decisions for the principal which he or she believes the principal would have made under the circumstances if the principal were capable of making such decisions. If there is no indication of what the principal would have chosen, the surrogate may consider the patient's best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn.
(c) Provide written consent using an appropriate form whenever consent is required, including a physician's order not to resuscitate.
(d) Be provided access to the appropriate medical records of the principal.
(e) Apply for public benefits, such as Medicare and Medicaid, for the principal and have access to information regarding the principal's income and assets and banking and financial records to the extent required to make application. A health care provider or facility may not, however, make such application a condition of continued care if the principal, if capable, would have refused to apply.
(2) The surrogate may authorize the release of information and medical records to appropriate persons to ensure the continuity of the principal's health care and may authorize the admission, discharge, or transfer of the principal to or from a health care facility or other facility or program licensed under chapter 400.
(3) If, after the appointment of a surrogate, a court appoints a guardian, the surrogate shall continue to make health care decisions for the principal, unless the court has modified or revoked the authority of the surrogate pursuant to s. 744.3115. The surrogate may be directed by the court to report the principal's health care status to the guardian.
765.301 Short title.--Sections 765.302-765.309 may be cited as the "Life-Prolonging Procedure Act of Florida."
History.--s. 4, ch. 92-199; s. 24, ch. 99-331.
765.302 Procedure for making a living will; notice to physician.--
(1) Any competent adult may, at any time, make a living will or written declaration and direct the providing, withholding, or withdrawal of life-prolonging procedures in the event that such person has a terminal condition, has an end-stage condition, or is in a persistent vegetative state. A living will must be signed by the principal in the presence of two subscribing witnesses, one of whom is neither a spouse nor a blood relative of the principal. If the principal is physically unable to sign the living will, one of the witnesses must subscribe the principal's signature in the principal's presence and at the principal's direction.
(2) It is the responsibility of the principal to provide for notification to her or his attending or treating physician that the living will has been made. In the event the principal is physically or mentally incapacitated at the time the principal is admitted to a health care facility, any other person may notify the physician or health care facility of the existence of the living will. An attending or treating physician or health care facility which is so notified shall promptly make the living will or a copy thereof a part of the principal's medical records.
(3) A living will, executed pursuant to this section, establishes a rebuttable presumption of clear and convincing evidence of the principal's wishes.
History.--s. 4, ch. 92-199; s. 1147, ch. 97-102; s. 25, ch. 99-331.
765.303 Suggested form of a living will.--
(1) A living will may, BUT NEED NOT, be in the following form:
Living Will
Declaration made this _____ day of _____, (year) , I, __________, willfully and voluntarily make known my desire that my dying not be artificially prolonged under the circumstances set forth below, and I do hereby declare that, if at any time I am incapacitated and
(initial) I have a terminal condition
or (initial) I have an end-stage condition
or (initial) I am in a persistent vegetative state


and if my attending or treating physician and another consulting physician have determined that there is no reasonable medical probability of my recovery from such condition, I direct that life-prolonging procedures be withheld or withdrawn when the application of such procedures would serve only to prolong artificially the process of dying, and that I be permitted to die naturally with only the administration of medication or the performance of any medical procedure deemed necessary to provide me with comfort care or to alleviate pain.
It is my intention that this declaration be honored by my family and physician as the final expression of my legal right to refuse medical or surgical treatment and to accept the consequences for such refusal.
In the event that I have been determined to be unable to provide express and informed consent regarding the withholding, withdrawal, or continuation of life-prolonging procedures, I wish to designate, as my surrogate to carry out the provisions of this declaration:

Name:


Address:

____________________________________ Zip Code:__________

Phone:____________________
I understand the full import of this declaration, and I am emotionally and mentally competent to make this declaration.
Additional Instructions (optional):






_____(Signed)_____

_____Witness_____

_____Address_____

_____Phone_____

_____Witness_____

_____Address_____

_____Phone_____

(2) The principal's failure to designate a surrogate shall not invalidate the living will.
History.--s. 4, ch. 92-199; s. 35, ch. 99-6; s. 26, ch. 99-331; s. 12, ch. 2000-295.
765.304 Procedure for living will.--
(1) If a person has made a living will expressing his or her desires concerning life-prolonging procedures, but has not designated a surrogate to execute his or her wishes concerning life-prolonging procedures or designated a surrogate under part II, the attending physician may proceed as directed by the principal in the living will. In the event of a dispute or disagreement concerning the attending physician's decision to withhold or withdraw life-prolonging procedures, the attending physician shall not withhold or withdraw life-prolonging procedures pending review under s. 765.105. If a review of a disputed decision is not sought within 7 days following the attending physician's decision to withhold or withdraw life-prolonging procedures, the attending physician may proceed in accordance with the principal's instructions.
(2) Before proceeding in accordance with the principal's living will, it must be determined that:
(a) The principal does not have a reasonable medical probability of recovering capacity so that the right could be exercised directly by the principal.
(b) The principal has a terminal condition, has an end-stage condition, or is in a persistent vegetative state.
(c) Any limitations or conditions expressed orally or in a written declaration have been carefully considered and satisfied.
History.--s. 4, ch. 92-199; s. 10, ch. 94-183; s. 27, ch. 99-331.
765.305 Procedure in absence of a living will.--
(1) In the absence of a living will, the decision to withhold or withdraw life-prolonging procedures from a patient may be made by a health care surrogate designated by the patient pursuant to part II unless the designation limits the surrogate's authority to consent to the withholding or withdrawal of life-prolonging procedures.
(2) Before exercising the incompetent patient's right to forego treatment, the surrogate must be satisfied that:
(a) The patient does not have a reasonable medical probability of recovering capacity so that the right could be exercised by the patient.
(b) The patient has an end-stage condition, the patient is in a persistent vegetative state, or the patient's physical condition is terminal.
History.--s. 4, ch. 92-199; s. 28, ch. 99-331; s. 13, ch. 2000-295.
765.306 Determination of patient condition.--In determining whether the patient has a terminal condition, has an end-stage condition, or is in a persistent vegetative state or may recover capacity, or whether a medical condition or limitation referred to in an advance directive exists, the patient's attending or treating physician and at least one other consulting physician must separately examine the patient. The findings of each such examination must be documented in the patient's medical record and signed by each examining physician before life-prolonging procedures may be withheld or withdrawn.


ABSENCE OF ADVANCE DIRECTIVE
765.401 The proxy.
765.404 Persistent vegetative state.
765.401 The proxy.--
(1) If an incapacitated or developmentally disabled patient has not executed an advance directive, or designated a surrogate to execute an advance directive, or the designated or alternate surrogate is no longer available to make health care decisions, health care decisions may be made for the patient by any of the following individuals, in the following order of priority, if no individual in a prior class is reasonably available, willing, or competent to act:
(a) The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability as defined in s. 393.063, who has been authorized to consent to medical treatment, if such guardian has previously been appointed; however, this paragraph shall not be construed to require such appointment before a treatment decision can be made under this subsection;
(b) The patient's spouse;
(c) An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation;
(d) A parent of the patient;
(e) The adult sibling of the patient or, if the patient has more than one sibling, a majority of the adult siblings who are reasonably available for consultation;
(f) An adult relative of the patient who has exhibited special care and concern for the patient and who has maintained regular contact with the patient and who is familiar with the patient's activities, health, and religious or moral beliefs; or
(g) A close friend of the patient.
(h) A clinical social worker licensed pursuant to chapter 491, or who is a graduate of a court-approved guardianship program. Such a proxy must be selected by the provider's bioethics committee and must not be employed by the provider. If the provider does not have a bioethics committee, then such a proxy may be chosen through an arrangement with the bioethics committee of another provider. The proxy will be notified that, upon request, the provider shall make available a second physician, not involved in the patient's care to assist the proxy in evaluating treatment. Decisions to withhold or withdraw life-prolonging procedures will be reviewed by the facility's bioethics committee. Documentation of efforts to locate proxies from prior classes must be recorded in the patient record.
(2) Any health care decision made under this part must be based on the proxy's informed consent and on the decision the proxy reasonably believes the patient would have made under the circumstances. If there is no indication of what the patient would have chosen, the proxy may consider the patient's best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn.
(3) Before exercising the incapacitated patient's rights to select or decline health care, the proxy must comply with the provisions of ss. 765.205 and 765.305, except that a proxy's decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient's best interest.
(4) Nothing in this section shall be construed to preempt the designation of persons who may consent to the medical care or treatment of minors established pursuant to s. 743.0645.
History.--s. 5, ch. 92-199; s. 12, ch. 94-183; s. 32, ch. 99-331; s. 15, ch. 2000-295; s. 7, ch. 2001-250; s. 136, ch. 2001-277; s. 13, ch. 2002-195; s. 5, ch. 2003-57.
765.404 Persistent vegetative state.--For persons in a persistent vegetative state, as determined by the attending physician in accordance with currently accepted medical standards, who have no advance directive and for whom there is no evidence indicating what the person would have wanted under such conditions, and for whom, after a reasonably diligent inquiry, no family or friends are available or willing to serve as a proxy to make health care decisions for them, life-prolonging procedures may be withheld or withdrawn under the following conditions:
(1) The person has a judicially appointed guardian representing his or her best interest with authority to consent to medical treatment; and
(2) The guardian and the person's attending physician, in consultation with the medical ethics committee of the facility where the patient is located, conclude that the condition is permanent and that there is no reasonable medical probability for recovery and that withholding or withdrawing life-prolonging procedures is in the best interest of the patient. If there is no medical ethics committee at the facility, the facility must have an arrangement with the medical ethics committee of another facility or with a community-based ethics committee approved by the Florida Bio-ethics Network. The ethics committee shall review the case with the guardian, in consultation with the person's attending physician, to determine whether the condition is permanent and there is no reasonable medical probability for recovery. The individual committee members and the facility associated with an ethics committee shall not be held liable in any civil action related to the performance of any duties required in this subsection.

[Coastie for Truth]

22. Thanks for straightening us out

It looks like a court ordered guardianship - with litigation and acrimony - is only a tragic default for those without a written (and properly witnessed and if necessary notarized) directive. As my lawyers told me as I moved around the country.

[Robbien]

4. This thread is spam. Why a new thread for this small comment?

There are hundreds of threads on this issue.

Why do you feel you need a thread for one small comment?

[cynatnite]

5. If they can ignore courts....

What makes anyone think they can't do the same with living wills?

The repubs have proven time and time again they don't give a damn about individual rights.

[sandnsea]

7. They ignored a live mother in Texas

And they're fixin' to do it again in a couple of days with a 68 year old man. Hospitals decide in Texas now.

[cynatnite]

12. I do think it's tragic.

I disagreed with the mom, but I think it's a disgrace the way she was done. This was her baby, after all.

Seems to me this is all about a matter of convenience for the repubs. Not consistent in the least.

[killbotfactory]

8. No more threads about this!

It's a distraction, see... :eyes:

[depakid]

15. They don't have that power

Btetter go back and read your constitution again- paying closer attention to Article I and the 10th Amendment.

[mondo joe]

16. They have the power to do anything they can get away with

THey've curbed the press, and now are eliminating your right to choose a legal guardian.

[depakid]

18. The federal courts are not inclined to give them that power

Congress has NO AUTORITY WHATSOEVER in this area- and the federal courts have been cutting back on what power they do have- e.g., the commerce clause- for over 10 years....

It's one thing for people to rant & rave about the far right's over reaching- and quite another to know you're talking about.

[mondo joe]

19. We'll have to wait and see, But regardless of whether they get away

with it or not, the attempted assault is all too serious.

[JanMichael]

17. Well that would certainly suck. So much for Individualism, eh?

Just one more reason to hate them:-)

[mondo joe]

21. You only exist to serve the corporations. They are the citizens.

You are a part of the body of the citizen, with no more rights over yourself than your thumb has over itself.