Understanding the Florida Living Will

With all that has been going on in the world lately, it is no surprise that estate planning attorneys have been bombarded by client calls regarding Living Wills and other advanced directives.

Aside from creating a feasible plan for the distribution of one’s assets upon their passing, it is imperative that a person leaves clear and concise instructions to their loved ones and physicians regarding their medical wishes.

The Florida Living Will serves to instruct decision-makers of a principal’s medical preferences in times when they are unable to express them.

Florida Living Wills

In the state of Florida, every adult patient has a right to make decisions regarding their own health, including the right to choose or refuse medical treatment.

However, in Florida when a person is unable to make such decisions due to medical reasons, they are considered incapacitated. To ensure that an incapacitated person’s decisions are adhered to, Florida law allows for certain Advanced Directives to be utilized according to Chapter 765, Florida Statutes.

This law delineates the right of a competent adult to instruct his or her physician to provide, withdraw or withhold life-prolonging medical treatment, to assign another person to make such decisions on their behalf or to indicate wishes regarding anatomical donations after death.

What is an Advanced Directive?

An Advanced Directive is a written statement indicating a person’s medical decisions in the event they are unable to make such decisions themselves and who may receive such information to make decisions on their behalf.

These statements are typically drafted as part of a person’s estate planning with an attorney and indicate their wishes regarding end-of-life or terminal illnesses, which may make medical decisions on their behalf and anatomical donations.

What is a Living Will?

In Florida, a Living Will is a written statement indicating the medical care, particularly life-preserving/saving or resuscitation measures, a person wants in the event he or she becomes unable to make his or her own decisions.

A Living Will is different from a Designation of Healthcare Surrogate in that the designation names another person as a representative to make medical decisions on behalf of a person who is incapable of making such decisions themselves.

Such designations also allow for the alternatives to be named. Similarly to the Living Will, however, the designation document may include instructions about any treatment the principal wishes to include or omit.

A Living Will may help to answer difficult questions regarding an individual’s preferences for death and dying, reduce family arguments, minimize unwanted and unnecessary medical care and expense, provide a sense of peace and direction for the individual and family members, make the dignity of the dying individual a priority.

Typically, a complete estate plan will include both these documents since they serve different, albeit similar, purposes.

Are Living Wills Mandatory in Florida?

In Florida, there is no law that requires a person to have a Living Will.

However, if one does not exist, then decisions may be made by one’s spouse, adult children, parent, sibling, court-appointed guardian or any other person deemed appropriate by the court.

This may result in the selected decision-maker not being a preferred person of the principle.

Can I Amend my Living Will?

According to Florida Statute 765.104, Living Wills may be amended, changed or canceled at any time by the principal while they are mentally capable of doing so.

Such changes should be but do not have to be, in writing, signed by the principal and dated.  It is also recommended that the prior, canceled Living Will be destroyed to avoid confusion when being used.

Limitations of the Living Will

Living Wills are not suitable for addressing all issues that may arise regarding a client’s health care decisions.

A client often needs additional documents, such as a designation of health care surrogate mentioned above or a Health Insurance Portability and Accountability Act (HIPAA) release, to make sure the client’s healthcare needs and preferences are addressed.

Further, a Living Will does not function as a Do Not Resuscitate form or physician order for life-sustaining treatment. These documents should be drafted in addition to a Living Will to reflect a person’s wishes.

A Living Will also does not address an individual’s wishes regarding the disposition of remains which are typically listed in a Will or a stand-alone document.

Quick Reference guide regarding Living Wills in Florida

Conclusion

Although a properly drafted Living Will has customarily been part of most estate planning attorneys’ services to their clients, it is needed now more so than ever.

Florida’s law makes it simple for residents to clearly and concisely state their wishes regarding their end-of-life stage care.

To ensure that your Living Will reflects your intent and complies with Florida law, be sure to contact an experienced attorney to assist you with drafting your Living Will.