What if I Don’t Have an Advance Directive?

What will happen to you if you live in Florida and don’t create or have an advance directive? While we’ve talked extensively about what advance directives can do, what you have to do to create them, and how they can help you and your family, we haven’t looked in detail at what happens should you become incapacitated and not have a directive in place. So, today we are going to look at what happens if you should become incapacitated without an advance directive in place.

What if I Don’t Have an Advance Directive? Absence of Advance Directive

According to Florida law, an incapacitated or developmentally disabled person who has not executed a valid advance directive, will have his or her medical decisions made by someone else. Who that someone else is will depend upon the circumstances of each situation.

For example, if a court has already become involved and has named a representative, that person will have the authority to make decisions on behalf of the incapacitated person.

However, unless the incapacitated person has a disability or has been incapacitated for a significant amount of time, a court naming a representative is fairly uncommon. So, who makes the decisions when a court has not become involved?

In this situation, the law says that the incapacitated person’s spouse has the right to make medical decisions on his or her behalf. If the incapacitated person has no spouse, his or her children have the right to choose. If there are no children, that person’s parents receive decision-making rights. If there are no parents, the authority passes to adult siblings. After that the right goes to adult relatives, close family friends, or even licensed social workers.

What if I Don’t Have an Advance Directive? Court Procedure

Let’s say that you are single, have become incapacitated, and your children cannot agree about who gets to make decisions for you. How does a court get involved?

In general, anyone who believes you are incapacitated and in need of a guardian can petition a Florida court to name a guardian on your behalf. The person must file the petition in an appropriate court—generally the county court in which you currently reside—and ask the court to appoint a guardian. Before the court appoints a guardian it will hold a hearing to determining both if you are incapacitated and, if so, who should become your guardian. Upon making its decision, the court will name a guardian and that person will have the ability to make decisions for you.

Beyond that, if someone believes your guardian, or the person who is entitled to make decisions for you under Florida law, is not acting appropriately or not protecting your interests, that person can similarly petition a Florida court and ask the court to name someone else as your guardian.