Living Wills and Related Documents

If you are interested in any of the following documents, please call us at (954) 481-2600 in Southeast Florida or (239) 261-9662 in Southwest Florida. You may also e-mail us at info@fdattorney.com for further information.  We can customize a living will and any other document to fit your particular needs.

Living Will:

A living will at its most basic is the direction to others regarding a person's wishes  in the event that he or she is being kept alive by artificial life sustaining  procedures.  Living wills would, for example, inform medical staff not to provide extraordinary life-preserving procedures on a person's body if he or she is incapable of expression and is suffering from an incurable and terminal condition. The Florida Statutes provide for a living will as follows:

765.302 Procedure for making a living will; notice to physician.

(1) Any competent adult may, at any time, make a living will or written declaration and direct the providing, withholding, or withdrawal of life-prolonging procedures in the event that such person has a terminal condition, has an end-stage condition, or is in a persistent vegetative state. A living will must be signed by the principal in the presence of two subscribing witnesses, one of whom is neither a spouse nor a blood relative of the principal. If the principal is physically unable to sign the living will, one of the witnesses must subscribe the principal's signature in the principal's presence and at the principal's direction.

(2) It is the responsibility of the principal to provide for notification to her or his attending or treating physician that the living will has been made. In the event the principal is physically or mentally incapacitated at the time the principal is admitted to a health care facility, any other person may notify the physician or health care facility of the existence of the living will. An attending or treating physician or health care facility which is so notified shall promptly make the living will or a copy thereof a part of the principal's medical records.

Designation of Health Care Surrogate:

When making a living will, it is usually advisable to designate a health care surrogate who can implement the wishes of the person if that person becomes unable to make medical decisions as a result of injury, unconsciousness, coma, or any other disability which prevents a person from expressing him or herself.  The Florida Statutes address the designation of the health care surrogate as follows:  

765.202 Designation of a health care surrogate. -

(1) A written document designating a surrogate to make health care decisions for a principal shall be signed by the principal in the presence of two subscribing adult witnesses. A principal unable to sign the instrument may, in the presence of witnesses, direct that another person sign the principal's name as required herein. An exact copy of the instrument shall be provided to the surrogate.

(2) The person designated as surrogate shall not act as witness to the execution of the document designating the health care surrogate. At least one person who acts as a witness shall be neither the principal's spouse nor blood relative.

(3) A document designating a health care surrogate may also designate an alternate surrogate provided the designation is explicit. The alternate surrogate may assume his or her duties as surrogate for the principal if the original surrogate is unwilling or unable to perform his or her duties. The principal's failure to designate an alternate surrogate shall not invalidate the designation.

(4) If neither the designated surrogate nor the designated alternate surrogate is able or willing to make health care decisions on behalf of the principal and in accordance with the principal's instructions, the health care facility may seek the appointment of a proxy pursuant to part IV.

(5) A principal may designate a separate surrogate to consent to mental health treatment in the event that the principal is determined by a court to be incompetent to consent to mental health treatment and a guardian advocate is appointed as provided under s. 394.4598. However, unless the document designating the health care surrogate expressly states otherwise, the court shall assume that the health care surrogate authorized to make health care decisions under this chapter is also the principal's choice to make decisions regarding mental health treatment.

(6) Unless the document states a time of termination, the designation shall remain in effect until revoked by the principal.

(7) A written designation of a health care surrogate executed pursuant to this section establishes a rebuttable presumption of clear and convincing evidence of the principal's designation of the surrogate.

Florida Do Not Resuscitate Order

This is a specific signed document in which the signer  directs  that based upon informed consent, CPR should be withheld or withdrawn in the event of a cardiac or respiratory arrest. In the same document, a Physician may also direct the withholding or withdrawing of cardiopulmonary resuscitation (artificial ventilation, cardiac compression, endotracheal intubation and defibrillation) from the patient. This document is NOT the same as a living will and is effective ONLY with regard to a sudden cardiac event!