FAQs About Living Wills & Advance Directives For Florida Residents

Managing the logistics of death can be an overwhelming task, especially when you’re still alive and well. However, carving out time to organize your living will and advance directives is a small effort now that can save a lot of effort in the future.

Nobody likes to think about the fact that one day they might lose the ability to make decisions for themselves. But the sad reality is that nearly seven million Americans are living with Alzheimer’s disease, and this number is expected to grow to thirteen million by 2050. Alzheimer’s, dementia, brain injury, stroke, and terminal illness can all lead to potential incapacity. It’s better to face this possibility early in life so that you can make advance decisions concerning your future medical care if one day you will no longer be able to make them yourself.

Many people assume that estate planning starts and ends with the execution of a last will and testament. While planning for your eventual demise is important, you should also prioritize planning for your incapacity, both for your own sake and the sake of your loved ones. Recording your wishes for your future medical treatment, if you can no longer communicate them yourself, will give your family peace of mind that they are respecting your preferences and making decisions you would have been happy with. Many families face significant emotional distress when they are asked to make decisions on behalf of a loved one who is incapacitated or unconscious: executing a living will and advance directive will ensure that your loved ones aren’t left in this predicament.

Trying to understand the legal jargon and details of living wills and advance directives can cause you to delay any action. When drafting a living will, an experienced estate planning attorney who is familiar with Florida law can help navigate the task. To kick off your research, we’ve put together a comprehensive guide covering the most frequently asked questions about living wills and advance directives for Florida residents.

What Is an Advance Directive?

An “advance directive” is a broad term that refers to any legal document that records your wishes for your future medical treatment in specific circumstances. A living will is one type of advance directive, but there are others, such as durable powers of attorney, Do Not Resuscitate (DNR) orders, health care surrogacies (also called health care proxies), and advance directives concerning organ donation.

It’s important to understand that some advance directives only come into effect once you are no longer able to give informed consent to medical treatment. For example, you may have been in a car accident and are in a coma, or are in the end stages of Alzheimer’s, or have had a stroke. At that point, your doctors will ask to see your advance directives so that together with your family they can make treatment decisions that you yourself previously agreed to when you still had sufficient mental capacity.

Advance directives are specifically recognized in Florida’s statutes under Florida Statute 765.101, and thousands of Floridians execute them each year as part of their incapacity and estate planning. Thankfully, several legal tools can help you plan for this possibility. In Florida, advance directives and living wills are vital legal mechanisms for incapacity planning.

Did you know that Florida residents have a right to self-determination with regard to health-related decisions? For example, you can refuse medical treatments that prolong life, even when struggling with a terminal illness. A living will and advance directive give you the power to control the health decisions in your future, even if you’re not physically able to do so yourself.

What Is a Living Will?

A living will, or living will declaration, is a specific kind of advance directive. A living will is a legally binding, written instruction that outlines your wishes about future medical treatments in the unfortunate circumstance that you are unable to communicate your wishes yourself.

In living wills, people typically indicate the circumstances in which they want to be given life-sustaining treatment, when they want such treatment to cease, how they would like their pain to be managed, and other preferences for end-of-life and palliative care. For example, your living will might indicate when you want life-support to be withdrawn, such as on the cessation of brain or cardiac activity.

Unlike some other advance directives, such as a health care proxy, a living will does not appoint a person to make medical decisions on your behalf: it simply records your wishes so that they can be relayed to your medical team if the need arises. Your living will “speaks” on your behalf.

It’s important to understand the definition of a living will as well as how it works. Having the confidence to hand over the authority to make life-changing medical decisions demands a deeper understanding of the process.

What Is the Difference Between a Living Will and a Last Will and Testament?

A living will strictly outlines an individual’s medical wishes, and should not be confused with a last will and testament. A will (also known as a last will and testament) is a document that determines how assets and personal property should be distributed after death. The living will, by contrast, is a document that states your end-of-life wishes if you have a terminal illness, are in a vegetative state, and the only thing the doctors can do is prolong the dying process. You appoint someone to make the final decision in the event that you cannot communicate your wishes at the time of need.

The services of an estate planning attorney are especially useful when drafting both a legal will and a living will.

What Are Some Other Common Advance Directives?

A living will is one of the most common types of advance directives, but there are many other legal instruments you can use to clarify your wishes on a range of medical decisions that might need to be taken when you are incapacitated. There are different types of advance directives, including a living will, a designated health care surrogate, and durable power of attorney. The following are some of the other common advance directives available under Florida law:

DNR and DNI Orders

A Do Not Resuscitate (DNR) order is a document that you can execute to indicate that your doctors should not perform CPR if your heart stops beating or if you stop breathing. A Do Not Intubate (DNI) order is similar and indicates the circumstances in which you do or do not wish to be intubated in the event you stop breathing.

Health Care Surrogate Designation

Since it is impossible to preempt every kind of medical scenario that could unfold, many people execute a health care surrogate designation. This is a document that appoints and authorizes a person you trust to make medical decisions on your behalf in the event you are incapacitated. They’ll be empowered to make any decision concerning your treatment and care. Health care surrogacies are also called health care powers of attorney.

An advance directive gives authority to a surrogate decision-maker in the instance that a medical decision needs to be made and you’re unable to make it yourself. The responsibilities of a health care surrogate are outlined in the living will, describing the authority that a competent adult holds in the instance of incapacity. The decision could pertain to the likes of organ donation, surgical and medical treatments, end-of-life procedures, releasing medical records, and psychiatric treatment among other areas.

Keep in mind that it’s possible to have more than one health care surrogate on the condition that an alternate surrogate is explicitly designated.

Organ and Tissue Donation Directives

Many people also use advance directives concerning organ and/or tissue donation to indicate whether they wish for their organs to be donated, and if so, where they want them to be donated.

Mental Health Treatment Directives

If you are a person with serious mental illness who may become incapacitated at some point in the future (for example, during a psychotic episode), an advance directive can be used to record your wishes for your mental health treatment.

There are a wide range of advance directives that you can execute to prepare for the unfortunate eventuality of your incapacity. If you are uncertain about the kind of advance directive you should execute, an experienced wills and trusts lawyer can explain Florida’s incapacity planning legal framework to you and help you tailor your advance directives to suit your needs.

What Are the Legal Requirements for a Living Will in Florida?

The legal requirements for a living will deviate slightly from one state to another. In Florida, certain criteria need to be met in order for the living will to be effective.

Consider the following as a starting point:

• The living will must be signed by its maker in front of two witnesses.
• The witnesses should be someone other than a spouse or a blood relative.
• The person designated as the surrogate cannot be one of the witnesses.
• Florida law will recognize a living will signed in another state on the condition that it was signed in compliance with the laws of Florida.

Florida Statute 765.101 provides the legal framework governing advance directives in the state, including definitions and requirements for valid execution of these documents.

Who Has the Responsibility to Update All Parties?

Once the living will has been signed, the maker can rest easy knowing that their medical wishes will be upheld if needed. However, it is also the maker’s responsibility to alert a physician and provide a copy of the living will to the physician and hospital to be kept with the medical records. Making sure your medical team has your advance directives on file is essential so that together with your family they can make treatment decisions that you yourself previously agreed to when you still had sufficient mental capacity.

How Can You Revoke a Living Will and Health Care Surrogate Designation?

The maker has the right to revoke the living will and the designation of health care surrogate at any time. All that is required is a signed and dated letter of revocation or any of the following revocation methods:

• Physically destroying or canceling the original document.
• An oral expression of one’s intent to revoke.
• Executing a later document that is different from the previous document.

Legal tip: It’s important to update the physician of any change to the living will.

How Can You Incorporate an Advance Directive and Living Will Into Your Estate Planning?

Ideally, you should come to see incapacity planning as a normal part of your estate planning process. If you haven’t yet drafted a will, you must do so as soon as possible. Your attorney will be able to assist you with drafting your living will and any other advance directives that your circumstances may require.

Although you can draft your advance directives yourself, it is strongly recommended that you hire an attorney to assist you in ensuring your directives are validly executed, legally enforceable, and clearly worded.

When Should You Update Your Advance Directives?

It’s important to regularly update your advance directives after major life changes, just as you would your will. For example, if you have appointed a spouse or sibling to be your health care surrogate, and that person is now deceased (or you have separated from your spouse), you should update your health care surrogacy accordingly.

Similarly, if you receive a major health diagnosis that may result in your incapacity in the future, it is important to update your living will and other advance directives to cater to whatever medical decisions might arise down the line.

Is It Necessary to Hire an Attorney for Your Living Will?

It’s possible to draw up a living will on your own, however, it’s recommended to have a lawyer guide you on the process of drafting a living will. In addition, an advance directive should also consider professional medical advice and counseling.

When drafting a living will, an experienced estate planning attorney who is familiar with Florida law can help navigate the task. An attorney will help you draft an advance directive that is clear, precise, and comprehensive, giving you total peace of mind that your wishes will be respected and your loved ones will be saved from unnecessary distress.

Having the confidence to hand over the authority to make life-changing medical decisions demands a deeper understanding of the process, and an experienced attorney can walk you through every step.

Find an Experienced Living Wills Attorney in Coral Springs

At the Law Offices of Gary I. Handin, P.A., we have over 50 years of experience in drafting a wide range of advance directives for our valued clients. We understand that the prospect of incapacity can be difficult to face, and we will help you to confront your incapacity planning in a compassionate, sensitive, and supportive way.

Our lead attorney has decades of experience in estate planning and will help you draft an advance directive that suits your needs and protects your wishes under Florida law.

Call us at 954-796-9600 or 1-877-815-4560 today to arrange your first consultation or find out more about our wide range of legal services.