What Is a Living Will in Florida and Why Should You Have One?

[A Florida Living Will Can Help Make Your Healthcare Wishes Clear When You Cannot Speak for Yourself]

When most people hear the words “Living Will,” they think of a Last Will & Testament. The two documents serve very different purposes.

A Last Will & Testament generally addresses the distribution of property after death. A Florida Living Will is an Advance Healthcare Directive that addresses your wishes concerning certain life-prolonging procedures while you are still alive but unable to make or communicate healthcare decisions for yourself.

For many Florida adults, a Living Will is an important part of a comprehensive estate plan.

What Is a Living Will in Florida?

Under Florida law, a competent adult may make a Living Will directing the provision, withholding, or withdrawal of life-prolonging procedures if the person has a terminal condition, an end-stage condition, or is in a persistent vegetative state, as those terms are addressed by Florida law.

A Living Will can communicate your wishes concerning difficult medical decisions when you cannot speak for yourself.

Circumstances can include:

• A serious or terminal illness;
• A catastrophic accident;
• A persistent vegetative state;
• An end-stage medical condition; or
• Other circumstances in which you are incapacitated and the statutory requirements for implementing the Living Will are satisfied.

Florida law requires a Living Will to be signed by the Principal in the presence of two witnesses, at least one of whom is neither the Principal’s spouse nor blood relative.

Why Is a Living Will Important?

Without clear instructions, family members may be left trying to determine what you would have wanted during an emotionally difficult medical crisis.

A properly prepared Living Will can:

• Communicate your wishes;
• Provide guidance to your loved ones and healthcare providers;
• Reduce uncertainty concerning certain life-prolonging treatment decisions; and
• Help avoid disagreements about what you would have wanted.

Florida law provides that a properly executed Living Will creates a rebuttable presumption of clear and convincing evidence of the Principal’s wishes.

A Living Will Is Not the Same as a Healthcare Surrogate

These documents work together but serve different purposes.

A Living Will communicates your wishes concerning life-prolonging procedures in the circumstances addressed by Florida law.

A Designation of Healthcare Surrogate allows you to appoint a trusted person to make health- care decisions on your behalf when you are unable to make them yourself. Florida law requires a written designation to be signed in the presence of two adult witnesses, with at least one witness being neither the Principal’s spouse nor blood relative.

Having both documents can provide your family and healthcare providers with clearer guidance.

What Happens If You Do Not Have a Living Will?

Not having a Living Will does not necessarily mean that no one can make healthcare decisions for you.

Florida law provides a statutory framework for healthcare decision-making when an individual has not executed an applicable Advance Directive or when a designated surrogate is unavailable. Depending on the circumstances, decision-making authority may fall to a spouse, adult children, parent, adult siblings, certain other relatives, a close friend, or another person identified by statute.

However, relying on the statutory default does not necessarily mean that the person making the decision will know what you would have wanted.

That is why advance planning matters.

Tell Your Healthcare Surrogate What You Want

Preparing the documents is only part of the process.

Talk with the person you designate as your Healthcare Surrogate about your values and preferences. Explain what matters to you and how you would want difficult medical decisions approached.

Keep copies of your documents where they can be found and make sure your surrogate and appropriate healthcare providers know that the documents exist. Florida law specifically places responsibility on the Principal to provide notice to the primary physician that a Living Will has been made.

Review Your Advance Directives

Estate planning documents should be reviewed when circumstances change. Consider reviewing your Living Will and other Advance Directives after:

• Marriage or divorce;
• Death or incapacity of your designated surrogate;
• A significant change in your health;
• A major change in family circumstances;
• Moving to or from Florida; or
• A change in your personal healthcare wishes.

Florida law also addresses amendment and revocation of Advance Directives, so an attorney can help ensure that an updated plan properly reflects your current wishes.

Include Your Living Will in Your Florida Estate Plan

A complete estate plan is about more than distributing property after death. It should also address what happens if you become incapacitated during your lifetime.

Depending upon your circumstances, a Florida estate plan may include a:

• Last Will & Testament;
• Revocable Living Trust;
• Durable Power of Attorney;
• Designation of Healthcare Surrogate;
• Living Will;
• HIPAA authorization; and
• Other documents appropriate to your circumstances.

At Caserta & Spiriti, PLLC, in Miami Lakes, we help Florida individuals and families coordinate their estate planning and Advance Healthcare Directives, so their legal documents reflect their wishes and work together as part of an overall plan.

Planning ahead gives you the opportunity to make important decisions while you are able to make them and gives your family clearer guidance when they may need it most.

Disclaimer: This article is provided for general informational and educational purposes only and is not intended to constitute legal advice. Reading this article does not create an attorney-client relationship. Florida law and individual circumstances vary. You should consult a qualified Florida attorney regarding your particular estate planning and healthcare needs.