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Living Wills And Health Care Advance Directives: FAQs

The Florida Legislature has recognized that every competent adult has the fundamental right of self-determination regarding decisions pertaining to his or her own health, including the right to choose or refuse medical treatment or procedures that would only prolong life when a terminal condition exists. This right, however, is subject to certain interests of society, such as the protection of human life and the preservation of ethical standards in the medical profession. To ensure that this right is not lost or diminished by virtue of later physical or mental incapacity, the Legislature has established a procedure within Florida Statutes Chapter 765 allowing a person to plan for incapacity, and if desired, to designate another person to act on his or her behalf and make necessary medical decisions upon such incapacity.

What Is A Living Will?

The purpose of this legal document is to direct the provision, the withholding or withdrawal of life-prolonging procedures in the event one should have a terminal condition or vegetative state. In Florida, the definition of “life-prolonging procedures” has been expanded by the Legislature to include the provision of food and water to terminally ill patients. One is not restricted to the use of the legal form provided by statute but can expand or limit the coverage of the statutory legal forms.

What Is The Difference Between A Living Will And A Legal Will?

A living will should not be confused with a person’s legal will (commonly referred to as a last will and testament), which disposes of personal property on or after his or her death, and appoints a personal representative or revokes or revises another will and is usually drafted by a Florida wills lawyer.

How Do I Make My Living Will Effective?

A living will must be signed by its maker in the presence of two witnesses, at least one of whom is neither the spouse nor a blood relative of the maker. If the maker is physically unable to sign the living will, one of the witnesses can sign in the presence and at the direction of the maker.

After I Sign A Living Will, What Is Next?

Once a living will has been signed, it is the maker’s responsibility to provide notification to the physician of its existence. It is a good idea to provide a copy of the living will to the maker’s physician and hospital, to be placed within the medical records.

The Coleman Law Firm, PLLC, since 2002, maintains an electronic file containing all its clients’ advance directives, including the living will and can provide those legal documents via fax or email at anytime during normal working hours. A number of national services provide for the electronic storage of your living will and other advance directives, usually for a small fee. These services will provide copies of your living will, or other advance directives 24 hours a day, seven days a week, by fax, email or regular mail. Among the companies providing such services are DocuBank, the National Register of Living Wills and the U.S Living Will Registry. Many individual state governments have also established a living will registry designed for residents of the state.

Some lawyers provide storage for advance directives they have prepared for their clients.

The Coleman Law Firm, PLLC Attorneys and Counselors at Law, maintains advance directives that can be obtained upon request by either email or facsimile transmission, as well as the U.S. Postal Service.

What Is A Health Care Surrogate?

Any competent adult may also designate an advance directive with authority to a health care surrogate to make all health care decisions during any period of incapacity. During the maker’s incapacity, the health care surrogate has the duty to consult expeditiously, with appropriate health care providers. The surrogate also provides informed consent and makes only health care decisions for the maker, which he or she believes the maker would have made under the circumstances if the maker were capable of making and communicating such decisions. If there is no indication of what the maker would have chosen, the surrogate may consider the maker’s best interest in deciding on a course of treatment.

How Do I Designate A Health Care Surrogate?

Under Florida law, designation of a health care surrogate (health care power of attorney) should be made through an advance directive with a written legal form document and should be signed in the presence of two witnesses, at least one of whom is neither the spouse nor a blood relative of the maker. The person designated as the health care surrogate cannot act as a witness to the signing of the document. A health care power of attorney can be notarized, but notarization is not mandatory.

Can I Have More Than One Health Care Surrogate?

The maker can also explicitly designate an alternate surrogate in the health care power of attorney, or designation of health care surrogate. The alternate surrogate may assume the duties as surrogate if the original surrogate is unwilling or unable to perform his or her duties. If the maker is physically unable to sign the designation, he or she may, in the presence of witnesses, direct that another person sign the health care power of attorney document. An exact copy of the designation of health care surrogate must be provided to the health care surrogate. Unless the designation states a time of termination, the designation of health care surrogate will remain in effect until revoked by its maker.

Can The Living Will And The Health Care Surrogate Designation Be Revoked?

Both the living will and the designation of health care surrogate (health care power of attorney) may be revoked by the maker at any time by a signed and dated letter of revocation; by physically canceling or destroying the original document; by an oral expression of one’s intent to revoke; or by means of a later executed document, which is materially different from the former document. It is very important to tell the attending physician that the living will and designation of health care surrogate have been revoked.

Where Can I Go To Obtain Legal Advice On This Issue?

If you need legal advice regarding advance directives for health care, either a living will or a designation of health care surrogate (health care power of attorney), please call 904-448-1969 or toll-free (866) 510-9099. Or, contact us online to schedule a consultation.