What Is a Living Will in Florida?

In Florida, a living will is a legal document that allows an individual to state their wishes regarding medical treatment in situations where they are unable to make decisions due to incapacity or terminal illness. It includes preferences on life-prolonging procedures, artificial nutrition, and hydration, guiding healthcare providers and family members in healthcare decisions.

Requirements for a Living Will

Under Florida law, a living will must (1) state how and when life-sustaining treatment should be provided, (2) be signed by the maker, (3) be signed by two witnesses, and (4) be signed by everyone in the same room.

Most often, the living will states under what conditions your life should be prolonged artificially if you are in a vegetative state or have an end state condition. If you lack capacity or cannot communicate, your living will (which you signed prior to this condition) will express to your physician and family the extent you want continued medical treatment to prolong your life.

A doctor will follow the direction of your living will only when you lack the capacity to make your own medical decisions. Legally, capacity is the legal term for not being able to understand the nature and consequences of your treatment and decisions. Or, you may not be incapacitated but you may lack the ability to communicate —unable to speak, write, gesture, and so on.

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Do You Have a Living Will?

When you go to a hospital for a medical procedure, they often ask you, “Do you have a living will?” Sometimes they may want a copy of the living will as well.

While it is OK to tell the medical staff that you have a living will, we often recommend that you not provide the actual document to the hospital. Instead, you may want to give the living will to a family member who is taking care of you. The family member can decide when it is best to give the living will to the hospital facility.

Benefits of a Living Will

A living will is a legal document that allows you to state your wishes for end-of-life medical care. In Florida, as in other states, it has several benefits:

  1. Asserting Your Preferences: The most significant benefit of having a living will is that it allows you to express your preferences about end-of-life care. You can specify what kind of treatment you do or do not want to receive in situations where you cannot decide for yourself. For example, you can state whether you want life-prolonging measures, like artificial nutrition or hydration, used if you are in a terminal, end-stage, or persistent vegetative state.
  2. Reduces Conflict and Stress: A living will can help avoid family disputes about what you would have wanted. When your wishes are documented, your loved ones don’t have to guess what you would have wanted, which can help reduce stress during a difficult time.
  3. Maintains Dignity: By allowing you to dictate the terms of your end-of-life care, a living will can provide you with greater control and dignity in your final days.
  4. Legal Protection: In Florida, living wills are legally binding on healthcare providers as long as they’ve been correctly executed in accordance with Florida law. This means your wishes should be followed, giving you further peace of mind.
  5. Designating a Health Care Surrogate: Florida law also allows you to designate a health care surrogate in your living will, someone you trust to make healthcare decisions on your behalf if you cannot do so.
  6. Financial Control: By specifying which treatments you do and do not wish to receive, a living will can also help to avoid unnecessary medical expenses.

Disadvantages of a Living Will

While a living will can provide significant benefits, it also has potential disadvantages that need to be considered:

  1. Potential for Misinterpretation: While a living will allows you to express your wishes for end-of-life care, there is always the potential for misinterpretation. The conditions and treatments described in your living will may not cover every possible scenario.
  2. Difficulties with Predicting Future Circumstances: It’s challenging to predict what medical treatments or technologies will be available in the future, and your current feelings might change over time. Thus, what you write in a living will today may not reflect your desires years or decades from now.
  3. Lack of Flexibility: Since a living will is a legally binding document, healthcare providers are required to follow it, even if there is some reason to believe that you might have changed your mind but didn’t update the document.
  4. Unforeseen Situations: A living will may not cover every possible medical scenario. An unpredictable health crisis might occur that doesn’t fit neatly into the situations described in your living will, leaving doctors and family members uncertain about what to do.
  5. Legal Variations: Laws regarding living wills vary by state. There could be challenges if you move to another state or if you need medical care while traveling.
  6. Emotional Strain: Crafting a living will requires thinking about scenarios of severe illness or injury, which some people may find emotionally difficult.

These potential drawbacks underscore the importance of discussing your wishes with your healthcare providers and loved ones, as well as reviewing and updating your living will regularly to reflect any changes in your preferences or medical advances.

FAQs About Living Wills

What’s the difference between a will and a living will?

A will is the written instructions for distributing your probate estate (your assets upon death). Despite using the word “will,” a living will is separate from a regular will. Instead, a living will is nothing more the written instructions for when to withhold certain medical treatment in the event of your incapacity.

Do you need an attorney to make a living will?

Florida law does not require that an attorney draft your living will. There are simple living will forms available online. An attorney can help you explain options to add to your living will.

Gideon Alper

About the Author

Gideon Alper is an attorney who specializes in asset protection planning. He graduated with honors from Emory University Law School and has over 15 years of legal experience.

Gideon has helped thousands of clients protect their assets from creditors. Before private practice, he represented the federal government while working for the IRS Office of Chief Counsel.

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