Advance Directives and Living Wills

Today, life support systems can keep an individual’s body alive for years, even if the brain is no longer functioning or the person is in constant pain. As a competent adult, you have a constitutional right to your own decisions about your health care and how you will be treated in the event that you later become incompetent or incapacitated.

There are several different legal documents that will assist you in making these decisions in advance. Collectively, they are all known as “advance directives.” These may include living wills (different from a regular will, bequest, or testamentary will), designation of health care surrogate, or durable power of attorney (for health care).

LIVING WILL

A living will is a document which states whether or not you want to be kept on life support if you become terminally ill or are in a persistent vegetative state. In addition, it addresses other important issues such as tube feeding, artificial hydration and pain medication. A living will is only effective if you are unable to communicate your desires on your own. Just as importantly, a living will can indicate your desire to remain on life support or your desire not to be kept alive artificially. Whatever your decision, as the Terri Schiavo case has shown, the key is to put your wishes in writing, so others will know what it is, and make sure that your physicians and family have a copy of the document or know where to get a copy of it immediately.

In Florida, 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 or procedures which would only prolong life when a terminal condition exists. This right however is subject to certain interests of society, such as the protection of human life and the preservation of ethical standards in the medical profession. To insure that this right is not lost or diminished by virtue of later physical or mental incapacity, the Florida Legislature has established a procedure within Chapter 765, Florida Statutes, allowing a person to plan for incapacity, and if desired, to designate another person to act on his behalf and make necessary medical decisions upon such incapacity. For the living will form adopted by the Florida Legislature, click here.

Every competent adult may make a written declaration or living will directing the providing, the withholding or withdrawal of life prolonging procedures in the event one should have a terminal condition. A suggested form of this instrument has been provided by the Florida Legislature in Section 765.303, Florida Statutes. In Florida, the definition of “life prolonging procedures” has been expanded by the legislature to include the provision of food and water to terminally ill patients.

Under Florida law, a living will must be signed by its maker in the presence of two witnesses, at least one of whom is neither the spouse nor a blood relative of the maker. If the maker is physically unable to sign the living will, one of the witnesses can sign in the presence and at the direction of the maker. Florida will recognize a living will which you have made and signed in another state if that living will was signed in compliance with the laws of that state or was signed in compliance with the laws of Florida.

Once a living will has been signed, it is the maker’s responsibility to provide notification to the physician or hospital of its existence. It is a good idea to make a number of copies of your living will. Give one copy to your regular treating physician so it can be placed in your medical record. Give copies to your family members so that they will know your wishes in the event of an emergency. Keep a copy handy in your house or apartment. If you go to the hospital or a nursing home, take a copy with you.

DESIGNATION OF HEALTH CARE SURROGATE

Any competent adult may also designate authority to a health care surrogate to make all health care decisions during any period of incapacity. During the maker’s incapacity, the health care surrogate has the duty to consult expeditiously with appropriate health care providers to provide informed consent on your behalf and make only health care decisions for you that you would have made under the circumstances if you were capable of making such decisions. If there is no indication of what the maker would have chosen, the surrogate may consider the maker’s best interest in deciding on a course of treatment. The suggested form of this instrument in Florida has also been provided by the Florida Legislature in Section 765.203, Florida Statutes.

The maker can also explicitly designate an alternate surrogate. The alternate surrogate may assume the duties as surrogate if the original surrogate is unwilling or unable to perform his or her duties.

If the maker is physically unable to sign the designation, he or she may, in the presence of witnesses, direct that another person sign the document. An exact copy of the designation must be provided to the person named as the health care surrogate. Unless the designation states a time of termination, the designation will remain in effect until revoked by its maker.

Both the living will and the designation of health care surrogate may be revoked by their maker at any time by a signed and dated letter of revocation; by physically cancelling or destroying the original document; by an oral expression of one’s intent to revoke; or by means of a later executed document which is materially different from the former document. It is very important to tell anyone who may have received a copy and especially your attending physician(s) that a living will or a designation of health care surrogate has been revoked.

If you need further information on this subject or need to have these documents prepared for you, you should consult with a qualified attorney.