What is a Living Will and Do I Really Need One?

Key Highlights: Understanding Living Wills in Florida

In the State of Florida, preparing a Living Will can help medical professionals and loved ones effectively carry out end-stage medical treatment directives.

• A Living Will is a legal document that outlines your medical treatment preferences if you become permanently incapacitated and unable to communicate.
• Unlike a Last Will and Testament, which becomes effective after death, a Living Will only applies while you are still alive and facing serious medical conditions.
• In Florida, a valid Living Will:
• Does not require notarization but must be executed in the presence of two witnesses, one of whom cannot be a spouse or blood relative.
• Becomes effective once you are unable to express your medical wishes.
• Can be revoked or updated at any time.
• Often used in conjunction with a Designation of Healthcare Surrogate, which appoints someone to carry out your medical preferences and access your medical records.
• A Living Will helps prevent family disputes, ensures your end-of-life decisions are respected, and provides legal guidance to medical providers during critical times.

What is a Living Will?

A Living Will, often referred to as a Health Care Directive or an Advance Directive, is a legal document in the area of Estate Planning, in which a person clearly states their intentions for end-of-life medical care in the event they become unable to verbalize their decisions.

Therefore, despite the similarity in names, a Living Will has no effect after one’s death unlike a Last Will and Testament, which only becomes effective upon an individual’s death and governs the distribution of your assets.

A Last Will and Testament may also include terms related to funeral and burial instructions, digital assets, as well as, nominations of guardians for minor children or disabled dependents. 

According to the American College of Emergency Physicians, nearly two-thirds of Americans have not taken steps to protect themselves with a Health Care Directive.

A Living Will is an important part of one’s estate planning documents that provides direction to families and medical professionals as to a person’s wishes regarding life-prolonging procedures, treatment for terminal conditions, end-stage conditions or persistent vegetative state conditions.

It helps to avoid disputes as to how to proceed regarding one’s end-of-life medical treatment in cases in which the principal may be comatose with no chance of recovery, they cannot live without the aid of life-support machines, and they are unable to care for themselves.

Living Will FAQs

1. Can I change or cancel my Living Will?

Yes, your Living Will can be revoked or revised at any time, but only if you are mentally competent to make those changes.

2. What is a Healthcare Surrogate, and do I need one?

A Healthcare Surrogate is a person you legally appoint to make healthcare decisions on your behalf in accordance with your Living Will. While in Florida they are not mandated, most attorneys counsel their clients on appointing a surrogate. Doing so adds an additional layer of protection to ensure your wishes are followed. 

3. What happens if I don’t have a Living Will?

Without a Living Will, your loved ones may be left to make very difficult medical decisions on your behalf without knowing your preferences. Further, Florida law determines who may make medical decisions for you. This can lead to unintended outcomes and place an emotional burden on your loved ones during a crisis.

How to Create a Living Will?

When preparing such an important document, one must consult not only with their legal counsel, but their family and medical advisors to fully understand the effects of creating a Living Will. 

When the decision has been made to draft a Living Will, ensuring that it is properly executed is paramount. It is important that a Living Will meets state requirements pertaining to the need for witnesses or notarization to be considered valid. According to Florida Statute, a Living Will need not be notarized but must be executed in the presence of two witnesses, of whom at least one cannot be a spouse or a blood relative.

A Living Will is effective from the moment it is signed, and when a person has been deemed unable to communicate his or her wishes regarding medical treatment. It can be revoked at any time by the principal as long as they have the mental capacity to do so. 

In addition to the language contained in the Living Will, it may be important to the principal to also consider preparing instructions for organ donations or “do not resuscitate” (commonly referred to as DNR) directives.

Do I really need a Living Will?

In Florida, Living Wills are typically used jointly with a Designation of Healthcare Surrogate directive which appoints a specific person to carry out a person’s end-of-life wishes as written down in the Living Will.

Although some Living Wills may contain directives regarding organ donations or autopsies that remain in effect briefly after one’s death, any authority granted by a Living Will stops when the person passes away.

If you are vacillating over whether you need to invest in the preparation of a Health Care Directive, it is important to ask yourself: Would your loved ones know your exact wishes regarding your medical treatment if you were unable to verbalize your intent? Would your loved ones, or even doctors, be legally bound to carry out your intent? Would you want to leave such a difficult decision up to your loved ones during such trying times?

What to Consider When Drafting a Living Will in Florida

The most important consideration for the principal would be whether they would prefer to be placed on prolonged life support in the case of permanent incapacitation.

As a living will clarifies the healthcare intentions of the principal, without one, family members will be left with making remarkably difficult decisions. 

Another consideration would be the costs associated with each decision and the ability of the estate and/or loved ones to carry such costs.

When Should I Update My Living Will?

Failure to update or revoke a Living Will may result in very serious medical consequences.

According to Florida Statute 765.104, a competent principal can amend or revoke a Living Will at any time.

This means that the principal must be of sound mind and capable of voluntarily amending the Living Will.

While revocation of a Living Will should be in writing and signed by the principal, it may also be revoked by an “oral expression of intent.”

Conclusion

Planning ahead for life-changing medical directives is a subject that most people would just simply rather put off to another day.

However, to avoid undue stress and to ensure that your intent regarding life-prolonging or end-stage medical treatment are carried out by your healthcare professionals in the event you are unable to verbalize your intent, it is imperative that you prepare and execute a valid Living Will in accordance with Florida law.

If you would like to speak to an attorney regarding your options, contact us today.