Can an Estranged Child Make Medical Decisions for You?
Family members don’t always get along. Let’s face it; relationships can be…well, complicated. And sometimes, people break apart. Some ruptures can be mended, and others…well, let’s just say that sometimes it can take years for mutual understanding to take place.
In many areas of your life, being estranged from one of your family members, for example, your adult child, can be painful, but it won’t necessarily directly impact your lifespan.
In the context of estate planning, however, being estranged from your adult child can definitely impact your lifespan.
What we are talking about here is a situation where you, as an older adult, are estranged from your adult child. Then, for whatever reason, you become incapacitated. Let’s say you are in the hospital on life support. You can’t speak or communicate your wishes to anyone in any way, and the only family member you have who can speak to the doctors for you is this estranged adult child.
Can your estranged child make medical decisions for you in this situation? In other words, can your estranged child decide to “pull the plug” on you?
Wait, you say, doesn’t it matter that this child and you have not spoken in years? Or that she or he holds a grudge against you? Doesn’t it matter that if you could speak, you would make it abundantly clear that you do not want this child making any decisions for you at all, much less ones pertaining to your medical treatment?
This is exactly the type of situation that makes creating a comprehensive estate plan and executing all necessary documents with the assistance of a Florida probate lawyer so important.
As will be discussed more fully below, Florida law allows every competent adult to make decisions concerning his or her own health care. In the event an individual becomes incapacitated and unable to make medical decisions for himself unless he has executed a Florida advance directive (see below), then the law allows certain individuals to make those decisions for him/her.
First on that list is the patient’s spouse.
Second is any adult child.
The law does not concern itself with the state of the relationship between the incompetent person and his or her adult child.
So, yes, in the absence of an advance directive and a spouse, an estranged child can make medical decisions for you.
What about Estranged Spouses?
Your estranged spouse can also make medical decisions for you. If you are incapacitated and do not have health care documents in place, your spouse can still make medical decisions for you. In fact, your estranged spouse is first on Florida’s list of decision-makers.
It doesn’t matter whether you are separated or estranged. It doesn’t matter how long you have been estranged or separated. It doesn’t even matter if you have a Protection Order against your estranged spouse for domestic violence.
Unless you are legally divorced, your estranged spouse can make medical decisions for you.
In the eyes of the law, absent a divorce decree, you are still married. And your spouse still has all the same rights he or she had before your estrangement.
Absent an advance directive or divorce, your estranged spouse, like your estranged child, can, indeed, make medical decisions for you.
How to Avoid Having Estranged Relatives Make Medical Decisions for You.
Luckily, there is a way to avoid the unwelcome situation of having an estranged child or estranged spouse make life-altering or life-ending medical decisions for you.
Florida law recognizes a person’s right to make medical decisions for himself or herself — including decisions related to life-ending or life-prolonging procedures. The law also allows a competent adult to designate someone else to make those decisions for them if they are unable to before the situation arises.
Under Florida law, an individual can execute an advance directive to appoint someone else to make medical decisions for them and to provide instructions regarding whether or not they want life-prolonging procedures used or under what circumstances they might want life-prolonging procedures withdrawn.
Anticipating how to handle the possibility of future incapacitation and executing advance directives (e.g., a Living Will, Health Care Surrogate Designation) is part of creating a comprehensive Florida estate plan.
Advance directives in Florida include (are not necessarily limited to):
- Living Will
- Health Care Surrogate Designation
A Living Will (not to be confused with a Last Will and Testament) is a legal document that specifies what type of medical care or interventions you want if you should become incapacitated. Because it goes into effect during your lifetime, it is called a “Living Will.”
A Health Care Surrogate Designation is a document in which you name someone as your representative to make medical decisions for you if you cannot make them for yourself. You can name alternate surrogates in this document, and you can include instructions about the type of medical interventions you do or do not want as well.
Both of these documents can be executed with the assistance of an experienced probate lawyer. And both of these documents can prevent a situation where an estranged child or spouse is making medical decisions for you.
Don’t forget: once you have executed a Living Will and Health Care Surrogate Designation, don’t just hide them in a safe deposit box where no one can see them or get to them if needed. Let your doctors know you have these documents and give copies to those family members who might need to use them on your behalf.
By working with a professional estate and probate lawyer, you may not repair your estranged relationships, but you will be able to make sure that the right person is the one making medical decisions for you if you should become incapacitated.
Comprehensive Estate Plans That Address Your Needs.
Helping individuals plan their estate and navigate the probate process is what the attorneys at the SJF Law Group do. We provide individualized estate plans and expertly guide individuals through the complex probate process, and capably handle all aspects of the creation, administration, and settlement of trusts as well. Contact us here or email us at: [email protected].