On February 26, 2013, Lorraine Bayless collapsed in the dining room of Glenwood Gardens, the independent living facility in California where she resided. The staff refused to perform CPR on Ms. Bayless, despite pleas from the 911 operator. As the 911 operator predicted would happen when a nurse on duty refused to administer CPR because it was against the policies of Glenwood Gardens, Ms. Bayless died before the ambulance arrived. The facility’s policy is that in the event of a health emergency, the facility will immediately call for emergency medical personnel for assistance and wait for the assistance to arrive. Fortunately for the independent living facility, Ms. Bayless had signed a Do Not Resuscitate form, and the family does not wish to pursue any potential claims that they might have against the facility. The family has said that it knew the policy of Glenwood Gardens and is at peace.
This incident demonstrates that knowing the policies of the facility where you or your loved one resides, and ensuring that it coincides with that family member’s wishes, is an important part of estate planning. Even if you inquired as to the policies of the facility at the time that you or your loved one moved there, the policy may have changed, and you should verify the policy. If you know the policy, you should discuss it with the person residing in the facility and other members of the family to ensure that this is the desired standard of care for the resident.
It is important to discuss these matters with the resident while he or she has the capacity to communicate his or her wishes. Once the individual loses capacity, or is unable to communicate his or her wishes, if no directives have been made, the family members may find themselves making difficult decisions, and the family members may disagree on the best course of action. This has been demonstrated by the litigation between the actress Zsa Zsa Gabor’s husband and daughter. Ms. Gabor’s daughter recently sought a conservatorship, (known as a guardianship in Florida), for her 96-year-old mother who has significant medical needs, alleging that Ms. Gabor’s husband was mishandling Ms. Gabor’s medical care and finances. The court is allowing Ms. Gabor’s husband to continue to care for her, but now he is doing so with court supervision and the threat of future litigation. This highlights the importance of having an estate plan that clearly indicates your wishes.
In Florida, the Legislature has enacted a statute that recognizes every competent adult’s right to make decisions regarding his or her health, including the right to refuse medical treatment. See Fla. Stat. § 765.102(1). Additionally, the Legislature has enacted a statute specifically allowing a competent adult to make an advanced directive instructing a medical provider about certain procedures. See Fla. Stat. § 765.102(3).
If you or someone you know would like to ensure that your estate plan coincides with your wishes, please do not hesitate to contact the attorneys at Chepenik Trushin LLP.