Florida/Georgia Personal Injury & Workers Compensation

...ive and provides for judicial resolution of disputes arising concerning decisions made by the proxy. See Fla. Stat. § 765.401(1)....

...t the proxy could not bind the nursing home patient to arbitration. The readmission agreement signed in 2001, which was required by the nursing home, was signed by Melvin. His authority to sign the contract was, at best, as a health care proxy under section 765.401, Florida Statutes (2001). Riva had been *300 previously found, by physicians who had examined her, to be incompetent because of senile dementia. [3] Section 765.401, Florida Statutes (2001), entitled "Absence of advanced directive," provides that if an incapacitated or developmentally disabled patient has not executed an advanced directive regarding health care, see section 765.101(1), or designated a surrogate, see section 765.101(16), health care decisions may be made by a designated list of individuals which run the gamut from judicially appointed guardians through relatives, friends, and licensed clinical social workers. Section 765.401 specifies that a proxy is authorized to make only "health care decisions." Section 765.101(5) defines them as follows: `Health care decision' means: (a) Informed consent, refusal of consent, or withdrawal of consent to any and all health care, including life-prolonging procedures....

...Under the statutory scheme, because of the loss of mental faculties, the patient is not able to choose or select the proxy for herself. The proxy is called upon to act only because the patient is "incapacitated or developmentally disabled" and cannot do so for herself. § 765.401(1)....

...*301 In the present case the health care proxy happens to be the same person who, as personal representative, is now asserting that in his earlier capacity he could not waive arbitration, but that will not always be the case. Even a social worker who is a stranger can be a proxy under section 765.401....

...If a nursing home wants to deal with someone competent to make such decisions, it has the right to seek the appointment of a guardian. [4] For only a court appointed guardian could waive or compromise property rights, such as civil remedies in negligence or the right to trial by jury. To suppose that section 765.401 empowers mere proxies to enter into contracts to waive property-related rights is to believe that the legislature sought to give neighbors or social workers authority to act as virtual guardians — but without the protection of having...

...Reading such an intent into chapter 765 needlessly introduces enormous constitutional doubts about this important statutory scheme. Another provision of chapter 765 adds a special protection for the incompetent patient with whom the nursing home wants such an agreement. Section 765.401(2) requires all proxy health care decisions to be an informed consent. § 765.401(2), Fla....

...[6] While Florida law does not prohibit mandatory arbitration provisions in any class of contracts, *303 it does require that all contracts for the provision of health care services be informed in the sense that the provider has an affirmative duty to inform the patient of all aspects affecting such services. See § 765.401(2) ("Any health care decision made under this part must be based on the proxy's informed consent " [e.s.]); see also § 765.101(5)(a) ("`Health care decision' means ......

...as proxy for an incompetent patient in very narrow circumstances and, therefore, that his discretion is limited by the provisions of chapter 765. However, the Act does not refer to the provisions of chapter 765. Specifically, the Act does not amend section 765.401(1), Florida Statutes (2003), which sets forth an order of priority for determining who should act as proxy for an incapacitated patient who has no advance directive. Nor does the Act require that the Governor's decision be made in conformity with the requirement of section 765.401 that the proxy's decision be based on "the decision the proxy reasonably believes that patient would have made under the circumstances" or, if there is no indication of what the patient would have chosen, in the patient's best interests. § 765.401(2)-(3), Fla....

...ions for those who are adjudicated incompetent, including that the proxy's decision be based on what the patient would have chosen under the circumstances or is in the patient's best interest, and be supported by competent, substantial evidence. See § 765.401(2)-(3)....

...92-199, § 10 at 1852, Laws of Fla., and enacted Parts I, II, III, and IV of chapter 765. See id. §§ 2-5. The Legislature provided that in the absence of an advance directive, a proxy may make health care decisions for an incapacitated patient. See ch. 92-199, § 5 at 1850 Laws of Fla.; § 765.401 Fla....

...The Legislature also provided that a "proxy's decision to withhold or withdraw life-prolonging procedures must by supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had [the patient] been competent." Ch. 92-199, § 5 at 1851, Laws of Fla.; see also § 765.401(3), Fla....

...Connors is distinguishable from this case because, as we have observed above, section 112.08 does not define "dependent" in a way that limits the County's legislative prerogative and precludes it from extending benefits to domestic partners. Lowe next argues that section 16½-158(c) of the DPA conflicts with section 765.401, Florida Statutes (1999). Section 765.401 sets forth an order of priority applicable in the absence of a patient's designation of a person to make health care decisions under Chapter 765; under the order of priority a spouse and adult children are ahead of a "close friend" of the patient....

...the making of health care decisions for the patient ... to the extent that a patient ... has not executed a valid power of attorney for health care or a health care surrogate designation." To the extent that the DPA overrides the order of priority established by section 765.401, it is in conflict with it....

...al relationship, so that it does not encroach upon an area reserved to the State. For these reasons, we affirm the final judgment of the trial court, except that we hold section 16½-158(c) to be unconstitutional to the extent that it conflicts with section 765.401....

...the testimony of witnesses other than Mr. Schiavo or the Schindlers. We recognize that Mrs. Schiavo's earlier oral statements were important evidence when deciding whether she would choose in February 2000 to withdraw life-prolonging procedures. See § 765.401(3), Fla....

...ed" the "foregoing instrument." The notary did not use the normal language "sworn to or affirmed and signed before me." [3] By statute, both Mr. Schiavo and the Schindlers could serve as the proxy for this decision, but Mr. Schiavo had priority. See § 765.401(1), Fla....

...inherit under the laws of intestacy. When a living will or other advance directive does not exist, it stands to reason that the surrogate decision-maker will be a person who is close to the patient and thereby likely to inherit from the patient. See § 765.401, Fla.Stat....

...and with the care and dignity that we all owe to Mrs. Schiavo. Affirmed in part, reversed in part, and remanded. BLUE, C.J., and PARKER, J., Concur. NOTES [1] See § 765.101(4), Fla. Stat. (2000). [2] See § 765.305(2)(a), Fla. Stat. (2000). [3] See § 765.401, Fla....

...Florida's statutory scheme, set forth in Chapter 765, contemplates a process for designation of a proxy in the absence of an executed advance directive and provides for judicial resolution of disputes arising concerning decisions made by the proxy. See Fla. Stat. § 765.401(1)....

...dges to serve as surrogates or proxies to make decisions about life-prolonging procedures. See In re *187 Guardianship of Browning, 568 So.2d 4 (Fla.1990) (affirming In re Guardianship of Browning, 543 So.2d 258, 273-74 (Fla. 2d DCA 1989)); see also § 765.401(3), Fla....

...It is the trial judge's duty not to make the decision that the judge would make for himself or herself or for a loved one. Instead, the trial judge must make a decision that the clear and convincing evidence shows the ward would have made for herself. § 765.401(3)....

...Given the holding in Cruzan, Plaintiffs cannot complain of a deprivation of Theresa Schiavo's Fourteenth Amendment procedural due process rights. The state court judge applied the heightened clear and convincing evidence standard in determining her intentions, as permitted by Cruzan and in accordance with Fla. Stat. § 765.401(3)....

...That provision merely "clarifies that neither the ADA nor the regulation alters current Federal law ensuring the rights of incompetent individuals with disabilities to receive food, water, and medical treatment." Dept. Of Justice, Section-by-Section Analysis, 56 FR 35694 (July 26, 1991). [5] Fla. Stat. § 765.401(3) provides, in pertinent part: Before exercising the incapacitated patient's rights to select or decline healthcare, ......

making a living will; notice to physician. § 765.401, Fla. Stat. The proxy. Rule References

...Designation of a health care surrogate. § 765.204, Fla. Stat. Capacity of principal; procedure. § 765.205(3), Fla. Stat. Responsibility of the surrogate. § 765.302, Fla. Stat. Procedure for making a living will; notice to physician. § 765.401, Fla....

...Designation of a health care surrogate. § 765.204, Fla. Stat. Capacity of principal; procedure. § 765.205(3), Fla. Stat. Responsibility of the surrogate. § 765.302, Fla. Stat. Procedure for making a living will; notice to physician. § 765.401, Fla....

...Designation of a health care surrogate. § 765.204, Fla. Stat. Capacity of principal; procedure. § 765.205(3), Fla. Stat. Responsibility of the surrogate. § 765.302, Fla. Stat. Procedure for making a living will; notice to physician. § 765.401, Fla....

...e parent, legal custodian, or legal guardian”), Similarly, the¡ statute on making, health care decisions for a developmentally disabled patient authorizes several categories of ¡persons, including a parent — singular— to make such decisions. § 765.401(l)(d), Fla....

...Plaintiffs contend that the state trial intentions, as permitted by Cruzan and in accordance judge made a number of evidentiary errors in concluding with Fla. Stat. § 765.401(3)....

...constitutional law. Amendment. Plaintiffs contend, relying on Cruzan v. Missouri n5 Fla. Stat. § 765.401(3) provides, in 22  Page 23...

...PER CURIAM.  Affirmed. See Stalley v. Transitional Hosps. Corp. of Tampa, 44 So. 3d 627, 630 (Fla. 2d DCA 2010) (“The acts of the agent, standing alone, are insufficient to establish that the agent is authorized to act for the principal.”); § 765.401, Fla....

...al judges to serve as surrogates or proxies to make decisions about life-prolonging procedures. See In re Guardianship of Browning, 568 So.2d 4 (Fla.1990) (affirming In re Guardianship of Browning, 543 So.2d 258, 273-74 (Fla. 2d DCA 1989)); see also § 765.401(3), Fla....

...It is the trial judge's duty not to make the decision that the judge would make for himself or herself or for a loved one. Instead, the trial judge must make a decision that the clear and convincing evidence shows the ward would have made for herself. § 765.401(3)....

...of the heart attack. Dr. Wolfson reports that she apparently had been using an "aggressive weight loss" program to control her weight and may have been suffering from an eating disorder such as bulimia. [3] While this case has been pending, sections 765.401 and 765.404, Florida Statutes (1999-2003), have been amended several times. In chapter 2000-295, the legislature created an End-of-Life Care Workgroup, which submitted a lengthy report on December 31, 2000, containing various recommendations. Those recommendations resulted in a proposed amendment to section 765.401(3) that expanded the powers of a proxy to make a decision based on the patient's best interests "if there is no indication of what the patient would have chosen." The legislature passed that proposal during the 2001 legislative session, and Governor Bush approved this amendment in June 2001....

...The bill became law on July 1, 2001. See ch.2001-250, Laws of Florida. This expanded power of the proxy was not utilized in this case. In this case, the trial court made the decision that "would have been the one the patient would have chosen had the patient been competent." See § 765.401(3), Fla....

...§ 765.202, Fla. Stat. Designation of a health care surrogate. § 765.204, Fla. Stat. Capacity of principal; procedure. § 765.205(3), Fla. Stat. Responsibility of the surrogate. § 765.302, Fla. Stat. Procedure for making a living will; notice to physician. § 765.401, Fla....

...§ 765.202, Fla. Stat. Designation of a health care surrogate. § 765.204, Fla. Stat. Capacity of principal; procedure. § 765.205(3), Fla. Stat. Responsibility of the surrogate. § 765.302, Fla. Stat. Procedure for making a living will; notice to physician. § 765.401, Fla....

...Designation of a health care surrogate. § 765.204, Fla. Stat. Capacity of principal; procedure. § 765.205(3), Fla. Stat. Responsibility of the surrogate. § 765.302, Fla. Stat. Procedure for making a living will; notice to physician. § 765.401, Fla....

...Designation of a health care surrogate. § 765.204, Fla. Stat. Capacity of principal; procedure. § 765.205(3), Fla. Stat. Responsibility of the surrogate. § 765.302, Fla. Stat. Procedure for making a living will; notice to physician. § 765.401, Fla....