When Florida Gov. Ron DeSantis signed a bill in 2020 requiring guardians to seek a judge’s approval before signing “do not resuscitate” orders on behalf of incapacitated clients, the new law did not give much guidance on how to make those life-and-death decisions, Circuit Judge Margaret Hudson said.
Hudson, a Volusia County-based judge who oversees guardianship and probate cases in the Seventh Judicial Circuit, said she and several other judges came up with requirements by looking at the notorious case that spurred legislators to change the law in the first place.
Former Orlando guardian Rebecca Fierle, whose Tampa trial in the death of an elderly man begins this week, resigned from hundreds of cases in 2019 after she was accused of misusing DNRs by routinely filing them on behalf of vulnerable clients against their wishes or without their families’ knowledge.
Guardians are appointed by courts to make all medical, financial and legal decisions for minors and adults found to be incapacitated.
“We went back, actually, to the Fierle circumstances and what were the complaints about what she did when she signed the DNR,” Hudson said. “One of those things was she did not get family input.”
Hudson said she will not grant a guardian’s request for a DNR unless she hears medical evidence and testimony from any available next of kin.
“It’s an important decision,” she said. “It isn’t taken lightly.”
More than two years after the guardianship law was changed, Central Florida judges say they have to weigh various factors when considering whether to grant a DNR — including whether the incapacitated person could survive resuscitation.
“You have to weigh what resuscitation can do to someone physically,” said Circuit Judge Leticia Marques, who oversees guardianship cases in Orange County. Resuscitation, she said, “is a medically violent event. It’s not a minor thing, especially for the elderly whose bones are brittle. Ribs get broken. It’s not what you see on television.”
Expert: Florida’s law unique
Florida’s law requiring a judge’s permission before a guardian can sign a DNR is unique among states, said Sally Balch Hurme, a Virginia elder law attorney involved in developing the National Guardianship Association’s standards of practice.
“There is no other law that specific about the need to get a prior court order for a ‘do not resuscitate’ order,” she said.
Other states do require getting court approval for other medical issues such as the use of psychotherapy medication or involuntary sterilization, Balch Hurme said. Florida’s legislation puts a higher burden on guardians, she said.
“The one Florida guardian’s dreadful misconduct really should not be an indication that all guardians do what she did,” Balch Hurme said. “To a degree, the legislation was kind of a knee-jerk reaction to one bad case.”
Hearings on DNR orders are usually closed to the public for privacy reasons, so it’s hard for advocates to track how they’re being conducted, said Sam Sugar, founder of the organization Americans Against Abusive Probate Guardianship. The new rules regarding DNR orders are somewhat of an improvement, he said, but they are only “nibbling at the edges of a system that is so horrible when it goes wrong.”
“It is my firm belief that guardianship, particularly as practiced in Florida, cannot be fixed,” he said. “It is fatally broken. It needs to be reimagined.”
Florida law requires judges to hold a preliminary hearing within 72 hours after a guardian petitions for approval to sign a DNR order. A judge can either rule immediately or conduct an evidentiary hearing within four days, according to the statutes.
“Anytime a statute tells you that you have to have a hearing within 72 hours — that’s a little difficult,” Hudson said. “… I’ve done them over my lunch hour just because I had to meet the 72-hour standard and didn’t have any other hearing time available.”
Both Marques and Hudson estimate holding between five to 10 hearings on DNR orders every month.
“As folks age, they ask for the DNRs,” Marques said. “We’re doing a comprehensive review of the files, so DNRs that were not approved are popping up, and those are being called up for status hearings, just so that the record is clear that a judge did look at the DNR and determined whether or not it should remain in place or be struck.”
‘This is a human being’
Like Hudson, Marques said she will not approve a DNR order without hearing testimony from a doctor. The judge said she asks medical experts whether the incapacitated person could recover if resuscitated and what their quality of life would be like.
Judges also have to deal with competing opinions from guardians, family members and wishes made by the incapacitated person prior to the guardianship, Marques said.
“I’ve had situations where the ward is clearly at the end of their life,” she said. “They’re not going to live much longer. Family members are struggling with saying goodbye, which is a very real emotion that needs to be respected by the court. You can’t just dismiss people’s feelings.”
Marques said she considers whether any extraordinary measures needed to keep incapacitated people alive are causing them pain or suffering. Both judges said they’ve denied DNR requests when a person is not truly at the end stage of life.
“The ones that I’ve denied they didn’t have a terminal illness, they weren’t at the end of their life from the medical testimony,” Hudson said. “… The majority of the attorneys are seeking it at the very end. They’re not trying to push the envelope and get it just to have it.”
Considering all those factors and ultimately making a ruling on DNRs can be difficult for judges, Marques said.
“You’re aware of the fact that this is a human life — this is a human being,” she said. “… It’s a tough decision to make, but in the end what you’re looking to do is make sure that you’re making the best decision for the ward.”
mcordeiro@orlandosentinel.com
