What is a Living Will?

Living wills are legal statements that convey your wishes regarding medical procedures in the event of a terminal illness or injury. For instance, you may use living wills to prolong or withhold certain medical procedures in such situations. The will may contain instructions to donate organs or withhold life support during end-of-life medical conditions, such as cancer. Note that the directive will only take effect when you cannot give informed consent during a terminal condition.

In legal terms, the principal creates a living will and may appoint a surrogate as a representative. The surrogate is obligated to enforce the living will.

Note: Per Florida Statute 765, living wills may exist as written statements or oral agreements.

What are the legal requirements for creating a living will in Florida?

Under 765.302 of the Florida Statutes, living wills are legal documents under these conditions:

• The principal was mentally fit at the time of creating the will
• The principal signed the will in the presence of two adult witnesses, one of whom must not be related to the principal.
• The witnesses must sign and input their contact details on the form.

Note: Principals or surrogates must notify healthcare providers about the existence of a living will. Sometimes, the principal may notify their attending physician shortly after creating the document.

Advance Directive vs. Living Will: What’s the Difference?

Advance directives generally refer to all decisions regarding future medical care. In Florida, an advance directive may exist as a living will or health care surrogate. However, living wills are distinct since they only apply to terminal medical conditions. The will comes into play when the patient is in a life-threatening situation with a zero survival rate.

Why Would You Need Living Wills in Florida?

Living wills are crucial legal documents and may offer these benefits:

1. It enables you to refuse certain treatments
   Some medical decisions may contradict your personal or religious values. Procedures like blood transfusion and organ donation may violate these values. For this reason, you can create a living will to convey your wishes concerning these treatments. It’s better to list out these treatments when creating a living will.
2. It reduces the financial or emotional burden on family relations.
   Taking care of a terminally ill loved one is emotionally and financially demanding. Families may end up with huge debts while paying for life-sustaining treatments. Some families are also emotionally drained while providing palliative care for loved ones. You can avoid this unpleasant situation by creating a living will. The will may contain instructions to discontinue life support in such situations.
3. Living wills help you authorize future medical treatments.
   Some medical treatments require authorization from either the patient or an appointed representative. Sometimes, the healthcare provider might require urgent authorization. With a living will, you can authorize future treatments without delay.
4. Living wills save your family members from making difficult decisions
   Families are often conflicted about the best treatment for terminally ill loved ones. This may create friction between the members. A living will enables you to take control of the situation by stating your preferred treatments.

What are the disadvantages of setting up living wills in Florida?

In Florida, living wills are not perfect solutions and may include these downsides:

1. Living wills have limited authority
   As an advance directive, living wills are effective when the principal is terminal. Specifically, it instructs physicians to continue or withhold life-sustaining treatment. However, it does not guide physicians in non-threatening medical situations.
2. Living wills may contradict ethical codes and conduct
   Florida state law does not support euthanasia or mercy killings. Thus, living wills that contain these prohibited procedures are not legal in the state. Besides the state laws, the will may contradict the healthcare provider’s internal policy.
3. Living wills transfer authority to the attending physician
   Living wills depend on the physician’s compliance. The physician has the sole authority to decide if you are incapacitated enough for the will to take effect. Sometimes, physicians are reluctant to enforce the directive so as to avoid lawsuits.
4. The physician may not have a copy of your living will
   A living will is only effective if the attending physician is aware of it. These situations may occur when you are out of the country or in a different state. To avoid such situations, your surrogate and healthcare provider must each have a copy of the directive.

In Which Situation Will I Need a Living Will?

Per 765.303 of Florida Statutes, you need a living will to prepare for situations when you are incapacitated and have a terminal condition or end-of-life condition. Generally, you should create or alter your living will at different stages of your life. Some principals may create living wills if diagnosed with a progressive terminal condition like cancer or dementia. You should also create a living will if genetic diseases exist in your lineage.

When Does a Living Will Take Effect in Florida?

In Florida, living wills take effect when the doctor determines you're not mentally fit to make healthcare decisions during terminal or end-of-life conditions. The attending physician must be aware of the existence of the directive.

What are the legal requirements for the start and duration of living wills in Florida?

In Florida, a living will starts after it is drafted and dated in the presence of two adult witnesses. Furthermore, the form becomes legal after all concerned parties append their signatures.

Note that there are no legal requirements to notarize living wills in Florida. However, you should notarize the directive to avoid complications later on.

Under Chapter 765.104, living wills are active until revoked or amended. For instance, the principal may revoke or amend a living will through these options:

• By creating and signing a revocation letter and notifying all concerned parties.
• By physically destroying the directive or directing another to destroy it in the principal's presence.
• By orally revoking the directive.
• By creating an advanced directive that is different from the previous one.

In cases where a spouse is designated as the surrogate, a dissolved union automatically revokes the living will. Living wills also end with the principal's death.

Revocations or amendments are effective if the principal notifies the surrogate, healthcare provider, or healthcare facility.

What factors may affect the duration of a living will?

In Florida, state laws, healthcare compliance, revocations, and the surrogate's decisions affect the duration of living wills. For instance, Florida state law nullifies a living will if the principal is pregnant when the directive takes effect. The law also revokes wills that contain unapproved treatments like electroshock therapy.

Tips for specifying the start and duration of living wills in Florida.

In Florida, you can specify the start and duration of living wills via these options:

• Include conditional statements such as “if and when the record subject is unable to give informed consent, the health provider is to provide the required medical treatment”.
• Include a date when the living will take effect. This is applicable when you already know the natural progression of the terminal condition.

How to Get Living Wills in Florida

You can create a living will or use the state-outlined form as a guideline. Chapter 765.303 contains a template for a living will. You can amend it in line with your preferences.

Per Florida state laws, you must fulfill these legal requirements to create and execute a living will:

• The principal must be mentally capable at the time of creating the will.
• The will must be created and signed by two adult witnesses. One of the present witnesses must not have a direct relationship with the record subject.
• The principal may specify the surrogate in the directive. Note that this is not a compulsory requirement.
• Furthermore, the principal must notify all concerned stakeholders, including family relations and healthcare providers. The healthcare facility must also present advance directive policies to the principal.

Note that no costs are attached to creating a living will in Florida. However, you may pay consultation and drafting fees if you outsource the process to legal practitioners. For example, estate planning attorneys may charge consultation fees upwards of $300 per hour.

There are multiple resources for creating living wills in Florida. For example, law firms may offer consultation services for advance directives.

Preparing a Living Will: How to Write One in Florida

Creating a living will is quite straightforward: you must fill out the required and optional information. The required field may include the following:

• The will creation date
• The principal's name and signature
• Witnesses’ names, signatures, and contact information.
• The preferred medical decision during terminal, end-stage, or vegetative condition.

In contrast, the optional field may include the following:

• The surrogate's name and contact details
• Additional directives concerning the preferred medical treatment. This may include instructions on pain medication, organ donation, or palliative care.

What should I include in a living will?

Generally, you must provide these details when creating a living will in Florida:

• The principal's name and signature
• The surrogate's and witnesses’ names, contact information, and signature.
• Conditional statements concerning the preferred medical decision and timeframe. For example, you may include statements like, “I direct life-sustaining procedures such as a ventilation machine and intravenous nutrition must be administered to prolong the process of dying”.
• Additional instructions, such as pain medications and antibiotic administration.

Tips for Completing a Living Will Form in Florida

Living wills convey your wishes when you are incapacitated. Here are tips for accurately completing a living will:

1. Hire an estate planning attorney to draft the directive. Healthcare providers or surrogates may misinterpret a living will if it contains unclear instructions. To avoid such situations, hire an experienced attorney to include all your preferences in clear legal terms.
2. Notarize the will. While notarizing living wills in Florida is not compulsory, you may take the extra step to ensure the document is legally binding.
3. Notify all concerned parties about the will. In this context, concerned parties may include your loved ones, a healthcare provider or facility, or the surrogate. Ensure each party has a copy of the directive. The healthcare facility will include the directive in your medical record.
4. Always appoint a surrogate. Think of this as an extra security layer since the surrogate will ensure healthcare providers follow the advance directive. Here's an extra tip: appoint a close family member or friend as a surrogate. Furthermore, always update the will to ensure the surrogate is readily available to represent you.

How do I execute and record a living will in Florida?

Here's a case study on how to execute and record living wills:

Andy was recently diagnosed with stage four brain cancer. According to his healthcare provider, he has less than eight months to live. Andy does not wish to use life-sustaining treatment to prolong his life. So, he drafts a living will and executes it in the presence of two adult witnesses. Then, he records the will by notifying his attending physician and other concerned parties. The physician will, in turn, include the will as part of Andy's medical records.

How often must I update my Living Wills?

In Florida, a living will should be updated at least every four years, and it may also be updated after major life decisions.

There are no specific legal requirements for updating living wills in Florida. However, you must follow the same procedures used for creating the first will. For instance, you must sign it with two adult witnesses and notify all concerned stakeholders. You can also take it a step further by notarizing the new directive. This will prevent any doubts about its legality.

Major life events may influence your decision to update a living will. The events may include marriages or divorces, births, changes in health, or new insurance policies. Principals may update living wills when relocating to a new state or country. They can amend the will to align with advance directive regulations in the new region.

There are instances where the principal forgets to update their living wills after major life events. To avoid these mistakes, you can use online scheduling apps as reminders. You can also set the update to coincide with your annual tax payments.

Do I Need a Lawyer to Create a Living Will in Florida?

It is not mandatory to hire a lawyer to create a living will. However, you may hire an estate planning attorney to prevent mistakes or complications in your living will. Note that these professionals charge fees for consultation and creation of the will.

What’s the Difference between a Living Will and a Medical Power of Attorney?

Living wills and medical power of attorneys are advance directives concerning medical treatments for persons who are mentally unfit to make decisions. However, these directives are different in the following ways:

• Living wills only come into effect for end-of-life or terminal medical conditions. In contrast, a medical attorney applies to all medical conditions.
• In a living will, it is not compulsory to appoint a surrogate or agent. However, medical power of attorney requires the appointment of an agent to represent your wishes.

In Florida, the healthcare surrogate directive is the state's substitute for the medical power of attorney.

Can a Living Will Be Broken?

Yes, you can revoke a living will in Florida. According to the state statutes, revocation is legal if the principal notifies all concerned parties of the new development.

How can I revoke a living will in Florida?

The principal must revoke the directives using these methods:

• A written statement about the intent to revoke the directive.
• By physically destroying the directive or directing another to destroy it in the principal's presence.
• By orally stating their intent to revoke the directive
• By creating a new directive that is different from the previous one.

The dissolution of marriage unions also revokes a living will if the surrogate is the principal's former spouse.