Health Care Surrogacy and Probate Court

Many of us when we think of estate planning or probate, think of our items or assets, and who will get them. But probate and probate courts aren’t just about distributing inheritances. Sometimes, the living may also have legal matters in probate court.

Medical Care for the Incapacitated

Such is the case when someone is incapacitated, often because of a medical emergency, and there are conflicting decisions by the next of kin, as to the care, or medical decisions, that should be made as to the incapacitated person.

Medical providers may not know which next of kin to speak with, and who of the next of kin is the person that the medical providers should listen to. When relatives differ as to the direction of medical treatment for the incapacitated person, doctors may not know what to do, and precious time can be lost (not to mention uncomfortable infighting between family members).

Using a Designation of Surrogacy

One way to avoid this possible problem, which can end up in probate court, is through the use of what is known as a healthcare surrogate. Your surrogate is the person that is authorized to speak to your treaters, and make medical and treatment decisions on your behalf in the event that you cannot do it yourself.

The surrogate can approve medications or medical procedures, and can generally make any medical decision that you could, if you were able to do so.

Who Will be Your Healthcare Surrogate?

Don’t assume that your spouse will be the one to make these decisions, if you don’t designate a health care surrogate. The law doesn’t assume that’s the case. If you do name your spouse, divorce will automatically terminate that designation, so if you have a surrogacy but it was before a subsequent divorce, now is the time to do a new designation of surrogacy.

There are no restrictions, other than being a legal adult, on who you can designate as your surrogate. In choosing a surrogate to designate, think about who would be most likely to keep a cool and calm head in a medical emergency, who would have time to designate to speak with your treating physicians, and whose values and decision making, most align with your own.

You can designate a backup surrogate, in case the one you initially designated can’t or won’t serve when you need him or her.

Going to Probate Court

In the absence of a designation, family members with different opinions on your medical decisions, may be left to go to probate court to resolve problems. Obviously, not the best situation when someone’s medical condition is on the line, and time is of the essence in making decisions.

What About a Living Will?

Note that surrogacy differs from a living will. A living will designates what treatment you want or don’t want, or what your decisions may be on medical issues, before you’re incapacitated. A designation of health care surrogacy designates a person to make regular medical decisions on your behalf, if and when needed.

Dispute over health care for someone incapacitated? Or do you want to avoid problems before ending up in probate court? Call the West Palm Beach probate lawyers at The Law Offices of Larry E. Bray today for help.

Source:

floridahospices.org/advanceD/DesigSurrogFAQ.pdf