Living Will

A Living Will is a written document, effective during your lifetime until revoked, that expresses your desire regarding the withholding or withdrawal of life prolonging procedures in the event you have a terminal condition, an end-stage condition, or you are in a persistent vegetative state. It must be signed by you in the presence of two witnesses, one of whom is neither your spouse nor blood relative. If you have the mental capacity but not the physical ability to sign, you may direct one of the witnesses to sign the Living Will for you. You may, but are not required to, designate a surrogate to help carry out and enforce your Living Will. A Living Will creates a rebuttable presumption of “clear and convincing evidence” of your wishes. The existence, reliance upon, and use of a Living Will is widespread and consistent with hospice and palliative care practices.

What happens if I do not have a Living Will? Your Health Care Surrogate, if any, would be authorized to provide express and informed consent regarding the withholding, withdrawal, or continuation of life-prolonging procedures. In the absence of a Designation of Health Care Surrogate, or if that advance directive expressly limited the authority of the Health Care Surrogate to act in the absence of a Living Will, then a proxy would be appointed for you by your health care provider’s bioethics committee, with priority given to your Guardian, if any, then your spouse, if any, then adult child, if any, then adult sibling, and thereafter as otherwise provided by Florida law.

Not Mercy Killing or Euthanasia: Compliance with your wishes as expressed in your Living Will, or as otherwise undertaken by your Health Care Surrogate or proxy under Florida law, regarding the withholding or withdrawal of life prolonging procedures in the event you have a terminal condition, an end-stage condition, or you are in a persistent vegetative state, does not constitute nor authorize any act or omission to end life other than to permit the natural process of dying.

Not a “Last Will and Testament”: A Living Will states your intent regarding the delivery of life prolonging procedures if you have a terminal condition, end stage condition or you are in a persistent vegetative state. In contrast, a Will states your intent with respect to distribution of assets after you pass, and allows you to nominate a Personal Representative responsible for enforcing the terms of the Last Will at Testament through a court supervised estate administration (i.e., “probate”). Also, a Last Will and Testament is only effective upon your death.

What is the role of my Elder Law Attorney with a Living Will? A Living Will is one important part of your overall legal planning and a qualified Elder Law attorney can ensure that all such legal planning documents are fully explained to you, and properly prepared and executed, ensuring your wishes are clearly defined and followed.

Have you and your family members created your Living Will? If not, click here to search for a helpful Elder Law Attorney in your area.

Authority: Chapter 765, Parts I – IV, ss. 765.101 – 765.404, Florida Statutes (2015).

Authored by Grady Williams
Reviewed by Carolyn Landon