Florida Case Pits Living Will Against Medical Power of Attorney

[This article was originally published on Novembeer 21, 2004.  The links were updated on July 12, 2018.]

Which should determine whether life support is withdrawn '“ a living will that a patient executed or the views of the person charged with enforcing the living will? Elder law attorneys and their clients are closely watching a landmark Florida case in which a wife who holds her husband's health care power of attorney is fighting to keep a hospital from enforcing the wishes her husband expressed in his living will.

In 1998, Hanford Pinette, now 73, executed a living in which he stated that if he were in a terminal condition with no probability of recovery, he would want "to die naturally" and receive medication only to "alleviate pain." At the same time that he executed this living will, Mr. Pinette appointed his wife, Alice, as to be his health care surrogate (also called a health care proxy), giving her power of attorney to carry out his wishes regarding medical care.

Now, Mr. Pinette is in a Florida hospital hooked up to life-support machines. The hospital says that Mr. Pinette's renal, respiratory, and cardiovascular systems are all being supported by artificial means alone. Because it believes Mr. Pinette's condition will not improve, the hospital wants to fulfill the wishes he expressed in his living will by withdrawing life support.

But Alice Pinette insists that her husband of 53 years is far better off than the hospital believes. She claims, according to her lawyer, that Mr. Pinette is "alert, aware and able to still enjoy his family." Using her health care power of attorney, she is fighting to stop the hospital from pulling the plug.

Lawyers for both sides will be in circuit court for a hearing on Tuesday, Nov. 23, to present arguments in the case. At stake is not just Mr. Pinette's life but the resolution of a ticklish legal question: when there is a dispute, which legal document '“ a living will or a health care power of attorney '“ should prevail?

Pending the judge's ruling, the press has turned to Florida ElderLawAnswers members, among others, for comment on the case.

Lauchlin Waldoch, a Tallahassee elder law attorney who is on the board of directors of the National Academy of Elder Law Attorneys, told the Associated Press: "The living will is supposed to ... supersede even the wife or a designated surrogate. This is a very good example why we, as elder law attorneys, preach the gospel of coming to see us."

Boynton Beach elder law attorney Scott Solkoff, who is chairman of the Florida Bar's elder law section, said the Pinette case is a reminder that living wills can only go so far.

"The health care surrogate is more powerful in many ways," Solkoff said. "In real life, regardless of what the statutes state, the surrogate is a real person, not just a piece of paper."

To read the full Associated Press article in the Lakeland (Fla.) Ledger, click here.

For more on living wills, health care proxies and other medical directives, click here.