KYLAN HERRING v. LUTHERAN SERVICES FLORIDA INC (2023)

Lutheran Services Florida, Inc., Kylan Herring's judicially appointed guardian, petitioned the lower court to withdraw his life-prolonging procedures pursuant to section 765.404, Florida Statutes. The court granted the petition and issued an order authorizing the withdrawal of life-prolonging procedures.

Judicially appointed guardians report to the court that appointed them. § 744.361(6)–(7), Fla. Stat. In turn, the court has a duty to judicially review a guardianship to ensure that it meets the needs of the ward, operates within the scope of its appointment, and that it otherwise conforms to the requirements of the law. § 744.369(4)(a–c), Fla. Stat.; see also § 744.372, Fla. Stat. (“The court retains jurisdiction over all guardianships.”).

Section 765.404, Florida Statutes, permits the withdrawal or withholding of life-prolonging procedures for persons determined to be in a persistent vegetative state who have no advance directive and have not left an indication of what they would have wanted under such circumstances. See generally § 765.101, Fla. Stat. (defining the terms “life-prolonging procedure,” “persistent vegetative state,” and “advance directive”). Two conditions must be met. First, the ward's best interest must be represented by a judicially appointed guardian with the authority to consent to medical treatment. § 765.404(1), Fla. Stat. Second,

The guardian and the person's primary physician, in consultation with the medical ethics committee of the facility where the patient is located, conclude that the condition is permanent and that there is no reasonable medical probability for recovery and that withholding or withdrawing life-prolonging procedures is in the best interest of the patient. If there is no medical ethics committee at the facility, the facility must have an arrangement with the medical ethics committee of another facility or with a community-based ethics committee approved by the Florida Bio-ethics Network.

§ 765.404(2), Fla. Stat. Upon review of the record, we find that there is not competent, substantial evidence of consultation with a medical ethics committee in this case. We therefore vacate the order authorizing withdrawal of life-prolonging procedures and remand for the trial court to hold an evidentiary hearing within five days to receive evidence of compliance with this statutory requirement.

VACATE and REMAND.

PER CURIAM.

ROBERTS, ROWE, and LONG, JJ., concur.