What is a Living Will?

have a living will in placeWe can only plan so much in life. Most of us don’t mind planning the good things in life, but there comes a time when we need to plan for the bad things as well. Being prepared can alleviate confusion for loved ones in case something unforeseen happens to you. Sadly, accidents and terrible things can happen to us and our loved ones. It’s a difficult subject matter to talk about. Often times it feels easier just ignoring the subject altogether, but not planning in case of an emergency isn’t a good idea. Nothing makes difficult times a little easier then when a person already has a plan in place. An attorney can help you make decisions about what you want to happen in case the unforeseen occurs. You may have heard of a living will. An attorney can help you decide what you want to happen in case you are unable to speak for yourself. Let’s take a look at living wills.

What is a living will?

What is a living will? A living will fits under the umbrella of an advanced health care directive. As a matter of fact, Chapter 765 of the Florida Statutes is titled, “Advanced Health Care Directives”. This is the section of Florida law that every probate attorney will turn to when referencing statutes regarding living wills. According to Florida Statute 765.101(1), an advanced directive is defined as:

(1) “Advance directive” means a witnessed written document or oral statement in which instructions are given by a principal or in which the principal’s desires are expressed concerning any aspect of the principal’s health care or health information, and includes, but is not limited to, the designation of a health care surrogate, a living will, or an anatomical gift made pursuant to part V of this chapter.” (2018).

Legislative Intent

have a living will in placeWhat is a living will? It is nearly synonymous with a health care advanced directive. An important and interesting portion of the Chapter 765 of the Florida Statutes is the legislative findings & intent. Here is a portion Florida Statute 765.102(1)(2):

“(1) The Legislature finds 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. This right is subject to certain interests of society, such as the protection of human life and the preservation of ethical standards in the medical profession.

(2) To ensure that such right is not lost or diminished by virtue of later physical or mental incapacity, the Legislature intends that a procedure be established to allow a person to plan for incapacity by executing a document or orally designating another person to direct the course of his or her health care or receive his or her health information, or both, upon his or her incapacity. Such procedure should be less expensive and less restrictive than guardianship and permit a previously incapacitated person to exercise his or her full right to make health care decisions as soon as the capacity to make such decisions has been regained.” (2018).

So, what is a living will? We get an additional and more precise explanation in Florida Statute 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 primary 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. A primary 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.

(3) A living will, executed pursuant to this section, establishes a rebuttable presumption of clear and convincing evidence of the principal’s wishes.” (2018).

Procedure for Living Will

This gives us a better understanding of “what is a living will?” In addition, Florida Statute 765.304 states the procedures for living wills:

“Procedure for living will.—

(1) If a person has made a living will expressing his or her desires concerning life-prolonging procedures, but has not designated a surrogate to execute his or her wishes concerning life-prolonging procedures or designated a surrogate under part II, the person’s primary physician may proceed as directed by the principal in the living will. In the event of a dispute or disagreement concerning the primary physician’s decision to withhold or withdraw life-prolonging procedures, the primary physician shall not withhold or withdraw life-prolonging procedures pending review under s. 765.105. If a review of a disputed decision is not sought within 7 days following the primary physician’s decision to withhold or withdraw life-prolonging procedures, the primary physician may proceed in accordance with the principal’s instructions.

(2) Before proceeding in accordance with the principal’s living will, it must be determined that:

(a) The principal does not have a reasonable medical probability of recovering capacity so that the right could be exercised directly by the principal.

(b) The principal has a terminal condition, has an end-stage condition, or is in a persistent vegetative state.

(c) Any limitations or conditions expressed orally or in a written declaration have been carefully considered and satisfied.” (2018).

What is a living will? We hope that this will help you better understand a living will. Ultimately, the best way to understand living wills is to speak with a probate attorney that can discuss your options with you. By meeting with an attorney, you will fully understand all that is required to make a valid living will. That being said, why do you need a living will?

Why do you need a living will?

have a living will in placeAs we have discussed under “What is a living will?, you can see how a living will plays an important part in unforeseen and difficult health care decisions. When your loved ones know how you want to proceed, it can make it much easier process. Furthermore, it is important for the medical team to know how you would like to proceed if you are unable to speak for yourself due to your incapacitation. Why do you need a living will? A living will ensures that your wishes are met in case you are incapacitated. Although such decisions are difficult to discuss, in case an end-of-life decision needs to be made, medical team and staff will be able to determine what you want to be done.

Reach out to us at Bret Jones, P.A.

At Bret Jones, P.A., we would be glad to speak with you in more detail about living wills. Don’t wait to contact us. Schedule a time during your day to reach out to our offices for more information on living wills.