Living Will in Florida

These three documents serve distinct purposes in directing medical care under Florida’s Chapter 765, Health Care Advance Directives. A Living Will is a legal document used to express your personal desire to withhold or withdraw life-prolonging procedures only if you are in a terminal condition, end-stage condition, or a persistent vegetative state. Conversely, a Designation of Health Care Surrogate is a separate legal instrument that appoints a specific person to make all broader medical decisions for you if you become incapacitated. The surrogate’s authority is comprehensive, covering all treatment choices, not just end-of-life care, and they are responsible for ensuring your Living Will is followed. The Do Not Resuscitate (DNR) Order is a direct physician’s instruction, typically on a distinct yellow form, that explicitly directs emergency medical services and other providers not to perform cardiopulmonary resuscitation (CPR). Unlike the Living Will, a DNR is effective immediately and is honored in non-hospital settings like the home. While the Living Will states your general wishes to avoid life support, the DNR is the specific medical order required to refuse the single procedure of CPR. Therefore, the Living Will expresses your intent, the Surrogate appoints your voice, and the DNR is a specific, actionable medical order. It is highly recommended to have both a Living Will and a Health Care Surrogate for complete coverage of potential medical scenarios.

Under Florida Statute §765.302, a Living Will is valid only if executed by a competent adult. The document must be a written declaration or oral statement directing the withholding or withdrawal of life-prolonging procedures. The principal must sign the Living Will in the presence of two subscribing witnesses. Crucially, one of these two witnesses must be neither the principal’s spouse nor a blood relative. If the principal is physically unable to sign, one witness may subscribe the principal’s signature in the principal’s presence and at the principal’s direction. While not a legal requirement, it is the principal’s responsibility to ensure their primary physician is notified of the Living Will’s existence. The physician must then promptly make a copy of the Living Will a part of the principal’s medical records. Properly executed, the Living Will establishes a rebuttable presumption of clear and convincing evidence of the principal’s end-of-life wishes.

A Florida Living Will only becomes effective after two specific conditions are met. First, the patient must be determined to be incapacitated, meaning they are physically or mentally unable to communicate a knowing health care decision. Second, the patient must have been diagnosed with a qualifying end-of-life condition, as outlined in Florida Statute §765.302. These qualifying conditions include a terminal condition, an end-stage condition, or being in a persistent vegetative state. Furthermore, for the Living Will to govern the withdrawal of life-prolonging procedures, the primary physician and another consulting physician must determine there is no reasonable medical probability of recovery from the condition. Essentially, the Living Will only springs into effect when the person cannot speak for themselves and is facing a permanent, non-reversible medical state. At this point, the document provides clear instructions to medical staff regarding the patient’s wishes for life support. The Living Will is an advance directive, meaning it is only utilized during a person’s lifetime, unlike a traditional Last Will and Testament.

Under Florida law, the primary way to address the unavailability of a Health Care Surrogate is by explicitly naming an alternate surrogate in the designation document. Florida Statutes permit and encourage the designation of one or more alternates who can step in if the primary surrogate is unwilling, unable, or reasonably available to perform their duties. Reasonably available means they can be readily contacted without undue effort and can act in a timely manner, given the urgency of the patient’s needs. If neither the designated surrogate nor any alternate is willing, able, or available, the authority to make decisions passes to a proxy under a statutory hierarchy. This hierarchy, outlined in Chapter 765, lists individuals like the patient’s spouse, adult children, or parents in a specific order of priority. This chain of command ensures that a competent adult can still make necessary medical decisions for the incapacitated patient. If all named surrogates and statutory proxies are unavailable, in limited circumstances, a clinical social worker may be selected by the facility’s bioethics committee to act as a proxy. Therefore, designating an alternate is the most crucial step to ensure a trusted person is always ready to honor your health care wishes.