Florida’s Health Care Powers of Attorney in the age of Coronavirus

The United States is witnessing exponential grow in Coronavirus (COVID-19). If the United States mirrors the experiences of Italy and other open democratic countries many Americans will be hospitalized with the illness.

What are your legal rights in Florida if hospitalized?

What can you do to help yourself?

Florida has developed many tools to address medical decision making for hospitalized patients. The three most common are health care power of attorney (advance health care directive), living willing, and health care proxy.

Health Care Power of Attorney (Advance Health Care Directive)

Florida law allows for another person to make medical decisions if a patient is incapacitated. This document is extremely important for person at risk of hospitalization. A health care power of attorney names another person to make decisions for and receive information from medical staff.

This document must meet certain drafting requirements and should be written then executed by an attorney. This document should be individually tailored to each person to ensure a person’s wishes are met.

Living Will

A living will is an end of life document to communicate preference for providing or withholding life-prolonging procedures. A living will applies to these three situations:

1. Terminal condition.

2. End-stage condition.

3. Persistent vegetative state.

This document must meet certain drafting requirements and should be written then executed by an attorney. This document should be individually tailored to each person to ensure a person’s wishes are met.

Health Care Proxy

In the event no health care power of attorney or living will is executed the law allows for a proxy to make health care decision. A proxy is also determined if a named person in a health care power of attorney or living will is unable or unwilling to help. A proxy is selected based on the following order of priority:

1. Judicially appointed guardian.

2. Patient’s spouse.

3. Adult child or majority of adult children.

4. A parent of the patient.

5. Adult sibling of patient or majority of adult siblings.

6. Adult relative of patient who has maintained regular contact with patient.

7. Close friend of the patient.

8. Licensed or court approved clinical social worker.

Two critical circumstances

Two circumstances highlight the need for legal preparation to name a medical decision maker: complex medical history and conflict among family members.

Complex medical history. A patient with a complex medical history or comorbidity should have clear written instructions for their decision maker. A patient does not know in advance where he or she may be hospitalized. For patients with complex medical histories communication with primary care givers or current treating specialists may be important.

Conflict among family members. Often family members do not agree on a treatment plan for the patient. Naming a single decision maker in writing is critical to mitigate conflict.

Knowing who will help make decisions will provide family stability, give patients peace of mind, and aid medical staff. For many people being legally prepared may be as important as being medically prepared.

Where can you get help?

For persons in Jacksonville, Florida: My office will facilitate referrals or you can contact the Jacksonville Bar Associations Lawyer Referral Service: (904) 399-5780, LRScoord@jaxbar.org, or https://www.jaxbar.org/page/LawyerReferralServ

For persons in Florida: My office will facilitate referrals or you can contact the Florida Bar Association Lawyer Referral Service: (800) 342-8011 or https://lrs.floridabar.org.

For active duty and military retirees: Contact your local JAG office to get legal assistance for drafting these documents.

DISCLAIMER: This information is provided for educational purposes only. Laws, regulations, and rules constantly change and information is valid for the date published only. No legal advice is given. No attorney client relationship has been formed by reading this entry. Each case is different and you should consult with a licensed attorney in your jurisdiction before undergoing any legal proceeding.

Can my spouse access my email or social media accounts?

Marriage Story is an Oscar nominated movie chronicling the divorce process between a husband (Adam Driver) and wife (Scarlett Johansson). A subplot of the movie is the theft of the husband’s emails by the wife. Although not central to the movie the theft of the emails seems to be accepted as both admissible and hurtful to the husband’s case.

In my practice I am often asked about the theft of electronic data from one spouse’s email/social media/communication apps by the other spouse. Our smart phones and tablets often carry our complete digital private life. Our financial, medical, work, and personal records are all a few clicks away.

Whether this conduct is permissible depends on a number of different considerations. For example a non-exhaustive list might include:

Who set up the electronic account?

Who regularly accessed the electronic account?

How was the unauthorized access accomplished?

Who had the password to the electronic account?

How old was the electronic information?

How was the electronic information accessed?

Each state differs on liability for a spouse accessing another spouse’s electronic accounts without permission. I will not examine the different state laws. This article will focus on two federal law: Computer Fraud and Abuse Act (CFAA) and Stored Communications Act (SCA). These two acts were passed long before computers became a regular fixture in the household let alone common in the pockets of most Americans.

The Computer Fraud and Abuse Act (CFAA) was signed into law in 1986. This is a federal criminal law which also allowing individuals to sue others for civil claims. When passed this law addressed large scale commercial computer disruption by organized crime, computer hackers, and unfriendly foreign governments.

While CFAA protects from unauthorized access, the Stored Communications Act (SCA) protects against unauthorized disclosure. Although there is overlap between these two laws SCA is limited by where the electronic information is stored. SCA claims must derive from information held by commercial electronic communication services like Google, Yahoo, etc.

Unauthorized access likely occurs far more often than presented to the courts.

In 2019 the Court of Appeal for the Fourth Circuit addressed the CFAA and SCA in a context of personal relationship. In Hately, the plaintiff (Patrick Hately) sued David Watts for accessing his email account. The email account was Patrick Hately’s student account operated by Virginia Community College System. David Watts obtained the account information from Nicole Torrenzano.

Patrick Hately and Nicole Torrenzano were engaged in a long term intimate relationship. During the course of their relationship Patrick and Nicole shared their email and electronic usernames and passwords with each other. Nicole and David Watts began an intimate relationship. In an effort to help David Watts Nicole provided David Watts with Patrick’s passwords to help David Watts divorce. David Watts accessed Patrick’s email account.

Hately sued David Watts but lost at the trial court. The appellate court reversed finding error in the trial court’s interpretation of the provisions of Stored Communications Act.

Hately demonstrates the application of electronic privacy law on intimate personal information wrongly accessed by former spouse, friend, or family member. Many more cases will follow.

DISCLAIMER: This information is provided for educational purposes only. Laws, regulations, and rules constantly change and information is valid for the date published only. No legal advice is given. No attorney client relationship has been formed by reading this entry. Each case is different and you should consult with a licensed attorney in your jurisdiction before undergoing any legal proceeding.

I am active duty and stationed overseas. Can I get divorced in Florida?

Florida requires a person to live in Florida for six months before filing for divorce. Florida courts have recognized an exception to the six month residency rule when a military member is involved. A military member must have a “concurrent intent to be a permanent resident” of Florida. This means a military member does not have to live in Florida but must intend to return to Florida to live after military service.

A military member who was a Florida resident before entering the military and never establishes a permanent residence somewhere else is considered a Florida resident.

In contrast, a military member who was a Florida resident at some point in his or her career will be tested by conduct. A court will ask questions such as:

Does the military member own a home in Florida or outside of Florida?

Is the military member registered to vote in Florida?

Does the military member tell the military he or she is a Florida resident?

Are any owned vehicles registered in Florida?

Depending on the answers to those questions a Florida court will determine if the military member is a Florida resident.

What if my spouse have never lived in Florida? Even if your spouse has never lived in Florida he or she may still be subject to Florida courts for purposes of divorce.

What if my kids have never lived in Florida? What state can make a decision about child custody and time share is governed by the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). Even if your kids have never lived in Florida a Florida court may be able to decide custody and time share. Florida courts will look to the kids’ ties or connections to Florida or potentially elsewhere.

Jurisdictional questions create complex and any questions should be directed to an attorney with knowledge of family law in that state.

DISCLAIMER: This information is provided for educational purposes only. Laws, regulations, and rules constantly change and information is valid for the date published only. No legal advice is given. No attorney client relationship has been formed by reading this entry. Each case is different and you should consult with a licensed attorney in your jurisdiction before undergoing any legal proceeding.