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.

An image of a modern Florida House representing the Homestead Laws in Florida.

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 whom 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 indicates their wishes regarding end-of-life or terminal illnesses, who 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 principle 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, a 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 principle while they are mentally capable of doing so.

Such changes should be but does not have to be, in writing, signed by the principle 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 health care 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

Code Section FL code section 765.101, et seq. Health Care Advance Directives
Specific Powers,
Life Prolonging Acts
Any medical procedure, treatment, or intervention which utilizes mechanical or other artificial means to sustain, restore, supplant a spontaneous vital function and serves only to prolong the dying process of a patient in terminal condition; this section does not include medications or medical procedures to provide comfort care or to alleviate pain.
Requirements for a Valid Living Will
At the time the Living Will is drafted, signed and dated, the principle must be competent and an adult. The Living Will document must be signed by the principal in the presence of two witnesses, as suggested in section 765.302, one of whom is neither a spouse nor a blood relative of the principal. While this document does not need to be notarized according to Florida law, it is recommended that it is.
Revocation of a Living Will
A Living Will is revocable at any time by the principal (1) by a signed and dated written document, (2) by destruction of the Living Will declaration, (3) by verbal expression of intent to revoke, (4) by drafting a subsequent Living Will that is materially different from the previously executed Living Will and (5) when the principal is divorced, the designation of a former spouse is revoked. Essentially, revocation is effective when properly communicated.
Living Will is valid from state to state
A Living Will that is executed in another state in compliance with the laws of that state or of Florida law.
What happens if a Physician refuses to follow the directions stated in a Living Will
Any physician who is unwilling to carry our a patient’s wishes stated in a Living Will because of moral or ethical beliefs must do the following within 7 days: (1) transfer the patient to another health care provider and pay for the cost of transporting such patient or (2) carry out the wishes of the patient unless court of judicial intervention applies. A physician should always make reasonable efforts to transfer the patient to a healthcare provider who will comply with the patient’s Living Will.
Immunity for Attending Physician
Any health care facility, provider or person acting under the direction of a health care facility is not subject to criminal prosecution or civil/professional liability for carrying out a health care decision in compliance with a patient’s Living Will.

 

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.

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