Who controls your healthcare decisions, and your body, in Florida, when you can’t make your own decisions? What if you were in an accident, such as a car accident, and were in a coma? What if you were in, what is referred to in Florida probate law, as a “persistent vegetative state?” Who controls your body and your organs in Florida?
One family is faced with these legal issues, and litigation, with a hospital in California. According to the Wall Street Journal, www.WSJ.com, a legal battle, or litigation, involves the family of a 13-year-old California girl who has been declared brain dead. The family is in a legal battle with a hospital that wants to take the California girl off of life support.
The child is on a ventilator, but her heart is beating. Her family believes there is a chance for recovery. However, the hospital states that medical tests reveal that there is no brain activity and that the girl is “dead” under California law. The hospital wants to remove life support.
These types of lawsuits involving a Florida citizen’s body, one’s body parts, have, in the past, often taken place in Florida probate courts. One reason for this may be that much of prior Florida law involving anatomical gifts, and leaving, or disposing of, one’s DNA, body parts, and body, was previously found the Florida probate code under chapter 732 of Florida statutes. However, this is no longer the case.
Part V of the Florida Statutes Chapter 765, (F.S. §765) deals with anatomical gifts, organ donation, tissue donation and includes a form. http://www.leg.state.fl.us/statutes/ Every Florida resident can write down his or her intent regarding tissue donation and anatomical gifts– upon death.
What do you even call this area of Florida law when litigation begins? Tissue donation law? DNA law? Anatomical gift litigation? Regardless, not every one of these lawsuits involving the control of a body, or a person, who was in a comma, on a ventilator, or is in a vegetative state, is brought before a Florida probate court. Sometimes, these cases may be filed in the civil division or the trial division of a Florida court.
Although, generally, Florida Statutes Chapter 765, F.S. §765, http://www.leg.state.fl.us/statutes/ deals with anatomical gifts under a will, or at the death of the Florida resident. What about during life? What if a Florida resident is brain dead, just like in the California case, and is unable to make choices about staying alive or not? Can someone, perhaps a Florida family member, make decisions about removing someone from a ventilator if there is no activity in one’s brain, just like in the California case?
In Florida, one may have a Florida living will and write down, set forth in writing, your wishes or intent if you are involved in an accident, or placed on a ventilator, are brain-dead, or are in a persistent vegetative state. A Florida living will will also let you set forth your intent, in writing, of what should happen with you, and your body, and your life, if your treating physician, or a Florida hospital, after tests and examinations, say that there is no brain activity.
Part III of Florida Statutes Chapter 765, F.S. beginning with Florida Statutes §765.301, http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0765/0765PARTIIIContentsIndex.html, is the Florida law which deals with life-prolonging procedures.
F.S. § 765.303, also known as Florida Statutes 765.303, or Fla. Stat. § 765.303, actually has a Florida living will form:
Florida Statutes §765.201 begins Part II of Florida Statutes Chapter 765, and deals with how a Florida resident appoints a Florida “health care surrogate” by a written Florida “advanced healthcare directive.” An advanced healthcare directive, under Florida law, permits a Florida resident to appoint someone to make healthcare decisions for a Florida citizen when the Florida citizen is unable to. So, if you are brain-dead, if there is no brain activity, and you are in a persistent vegetative state, or in a coma, you may grant to your Florida health care surrogate the power over you, your person, your body, and your life, to do to you what you could have done had you been healthy.
So, under Florida law, if you want to leave your DNA, or organs, upon your death, you may make a Florida anatomical gift. During your life, it’s you are a Florida citizen, or a Florida resident, you may let everyone know your intent of what you want done if you become brain-dead, by creating a Florida living will. Finally, in Florida, a Florida resident may name a surrogate, also called a Florida health care surrogate, pursuant to a Florida advanced healthcare directive. The Florida health care surrogate will be empowered to make healthcare decisions for you if you are unable to. A Florida probate attorney, or a Florida guardianship attorney, can explain these documents to you, as well as how they may work with your Florida revocable trust, or a Florida power of attorney.
In the end, a Florida resident may wish to make known his or her intent, and thoughts, regarding your body, your mind, and your person by preparing these Florida documents and putting everything down in writing. If you don’t have a Florida living will, or a Florida advanced healthcare directive, a Florida court may have to decide what to do with your body if your family members cannot agree.
Don’t think this doesn’t happen. This happens right here in Florida. Including in Palm Beach County. The Pankauski Law Firm PLLC, located in West Palm Beach, Florida, has represented the wife of an accident victim, when the victim was brain-dead, with no brain activity, and who was in a persistent vegetative state, in West Palm Beach, Florida. The wife of the victim wanted to preserve the Florida victim’s DNA, and tissue, for the possibility of creating children after the death of the victim /spouse. The West Palm Beach hospital, where the victim was being treated, revealed two things: first, that the victim was brain-dead and would never recover to what he used to be. Two, the Palm Beach County hospital wanted to remove the victim from life support. The Pankauski Law Firm PLLC filed an emergency motion with the Palm Beach County probate court to obtain an order from a probate judge for the benefit of the wife, instructing, and ordering, the West Palm Beach hospital to preserve and maintain the Florida victim’s tissue and DNA for the benefit of the wife. Thankfully, the Pankauski Law Firm PLLC was successful, and able to obtain the probate court order which the wife wanted.
In the future, in Palm Beach County, Florida, throughout Florida, and indeed, across the nation, you will, sadly, see family fights over who wants to control the mind and body of an accident victim. A mother or a father may not want to remove an accident victim from life support, or a ventilator. The spouse, the victim’s wife, or husband, may want to remove the victim from life support or from a ventilator. These types of cases can be draining on an emotional and other basis.
The most a Florida resident, or a Florida family, can do is to plan: take the time to meet with a Florida probate attorney or a Florida estate planning attorney who prepares Florida living wills, Florida advanced healthcare directives, and Florida anatomical gift documents. These Florida healthcare documents are inexpensive and relatively easy to prepare. The Pankauski Law Firm PLLC does not prepare these documents; we only represent families and spouses when disputes arise. The firm only litigates. These Florida healthcare documents perhaps provide the best evidence of what a Florida resident’s intent is, should they become brain-dead.