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The Difference between a Health Care Surrogate appointment, a Living Will and a “Do not Resuscitate” Form

When I prepare estate planning documents for a client, they most often include a health care surrogate designation and a living will. They never include a “Do Not Resuscitate” form (DNR), which is prepared by a health care provider. To understand why, let’s look at the differences. A health care surrogate designation is known as a health care power of attorney in some states. If you sign a health care surrogate, you have appointed a person to make decisions regarding your health if it is determined by your doctors that you are no longer able to make a meaningful decision on your own, or if you physically cannot communicate such a decision. This determination can be made in a variety of situations, not just when a person is terminally ill. Most commonly, I see health care surrogate forms used in cases of dementia or a stroke, in which the person can survive for years, but be unable to make medical decisions. A Living Will is a companion document to the health care surrogate designation, but it is employed in very limited situations. If you sign a living will, you are stating that do not want to receive extraordinary measures to keep you alive if you are: in a persistent vegetative state, in an end stage condition, or at the end of a terminal disease. In Florida, you specify whether you decline to receive extraordinary measure, such as a heart/lung machine, and in addition, whether you do or do not want artificial feedings, such as feeding tubes or intravenous feeding. In order for a living will to be effective, two physicians must certify that you have no medical probability of surviving your condition, and that extraordinary measures and feeding tubes will only artificially prolong your death. A DNR, on the other hand, is more extreme in its effect and should be signed in even more limited circumstances. It is a document that is prepared by and must be signed by a medical professional. In Florida, it is a specific form created by the Florida Department of Health. If you have one, it instructs any person responding to an emergency, such as an EMT, not to use methods such as chest compression or defibrillation to bring you back from a cardiopulmonary or respiratory event. This means that if you suffer a life-threatening event, emergency services will not revive you, even if you are not otherwise terminally ill. This instruction obviously does not allow for a physician to make any type of diagnosis as to your condition. Accordingly, when a client calls me and tells me that they want a “Do Not Resuscitate” form, I know that this is generally not what they really mean. A person who is otherwise healthy but wants to provide for declining mental health or a possible terminal situation should sign a health care surrogate designation and/or living will. Only a person who is truly ready to die without allowing for time for a diagnosis by his or her physician should sign a DNR.
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