Florida Living Wills Laws

It’s never easy to make end-of-life decisions, but it’s a harsh reality we all must face. Knowing what to expect and the choices you’ll have to make can make the task easier.

For example, it’s important to know the difference between a will and a living will. A will (formally known as a last will and testament) is the legal document that communicates how you want your property distributed at your death. It doesn’t take effect until you die. A living will communicates how you want your healthcare decisions made if you become incapacitated. This occurs when you become “physically or mentally unable to communicate a willful and knowing healthcare decision.”

It’s common to confuse the terms “living will” and “advance directive.” An advance directive is an umbrella term for legal documents that cover living wills, designations of healthcare surrogates (also known as healthcare proxies), and organ donation directives.

A living will provides healthcare instructions but doesn’t appoint a decision maker, while a designation of healthcare surrogate names a decision maker but doesn’t provide healthcare instructions. Together, these two legal documents provide thorough incapacity planning for your medical decisions.

Legal Requirements for a Living Will in Florida

The key requirements for making a valid living will in Florida are set out in the Florida Statutes. The person making the living will is known as the “principal.” For a living will to be valid, the following must apply:

• Competent: The principal must be mentally competent
• Adult: The principal must be an adult (at least 18 years old)
• Signed by the principal: The principal must either sign or direct the signing of the living will
• Witnesses: Two subscribing witnesses must witness the principal’s signing, with one not a spouse or blood relative

Unlike some other legal documents, the law does not require a living will to be notarized.

As a practical matter, a living will must be part of the principal’s medical record to be effective when needed. If the principal doesn’t provide their healthcare provider with a copy of the living will, others may notify the physician or healthcare facility of the living will’s existence if the principal becomes physically or mentally incapacitated.

Florida recognizes living wills executed in other states if the document complies with either state’s legal requirements. A living will from another state may vary in ways that create ambiguity rather than clarity. Updating to a Florida-compliant living will helps ensure your wishes are expressed in line with the scope and definitions of Florida law.

Revoking Your Living Will

While competent, the principal may revoke or amend a living will at any time. Revocation may be by:

• A signed, dated writing
• Destroying the document, by the principal or by another in the principal’s presence and at the principal’s direction
• Verbally expressing the intent to revoke
• Executing a later living will that is materially different from the previously executed living will

A revocation or amendment is effective when it is communicated to the surrogate, healthcare provider, or healthcare facility.

Designating a Healthcare Surrogate

While a living will provides your healthcare team with guidance on your medical treatment and healthcare preferences, a Designated Healthcare Surrogate is a legal document that names who will make your medical decisions during your incapacity. Together, these legal documents ensure that your medical care during an incapacity aligns as closely as possible with your own decision-making process.

The general legal requirements for a valid Designation of Healthcare Surrogate are about the same as those for a living will. One important distinction is that your healthcare surrogate cannot be a witness.

Florida law does not require that a Designation of Healthcare Surrogate be notarized. Florida provides a free Designation of Healthcare Surrogate statutory form that illustrates these legal requirements. You choose whether the surrogate’s authority is effective when you sign the document or only if you become incapacitated.

The document may include a termination date, and the principal may revoke a Designation of Healthcare Surrogate in the same way the principal can revoke a living will. Divorce automatically revokes the former spouse’s designation as the surrogate.

How Do You Make a Living Will in Florida?

A free sample living will that meets all of the legal requirements is available in the Florida statutes. You can use this form to communicate your wishes about life-prolonging procedures.

The statutory form is a reliable, court-recognized template that works for many people. It allows you to direct that your dying not be artificially prolonged under specified circumstances, such as a terminal condition, an end-stage condition, or a persistent vegetative state.

For a little more flexibility, you may want to consider using an online do-it-yourself living will or consulting with a Florida estate planning attorney. An attorney will take into account your specific circumstances, such as family dynamics and specific healthcare concerns, and draft a living will that provides clarity and specificity to help avoid potential conflict or uncertainty.

No matter which option you choose, it’s important to take the time to make sure your living will is a good fit for your particular circumstances. Once a living will is activated by your incapacity, it’s too late to make adjustments.

Partner With a Florida Estate Planning Attorney

Incapacity planning is an important part of a comprehensive estate plan. With a living will and a Designation of Healthcare Surrogate in place, you can be sure your healthcare wishes will be carried out if you cannot speak for yourself.

In addition, expressing your end-of-life care preferences can bring peace of mind to your family members and loved ones during a difficult time. If the statutory forms or do-it-yourself online options don’t quite suit your needs, you may want to consult with a Florida estate planning lawyer. With a custom-drafted living will, you can provide additional instructions for your care, address specific health care needs, and have the assurance that comes from working with an estate planning professional.