A comprehensive estate plan includes several documents, all of which are important.
Some documents protect your finances, others protect your family, and still others protect your health.
A Florida Living Will is one of the health care documents that are essential to any comprehensive estate plan.
In Florida, all adults who have capacity to do so may execute a Living Will. And, if you want to control your own end of life decisions, it is imperative that you have one.
The purpose of a Living Will is to direct the provision, withholding or withdrawal of life prolonging procedures in the event you have a terminal or end-stage condition, or if you are in a persistent vegetative state.
In addition, in Florida, the provision of food and water to a terminally ill patient are also considered life prolonging procedures. This is important to keep in mind, as I have had clients that are concerned about suffering as a result of being denied food and water.
What is the Difference Between a Last Will and Testament and a Living Will?
A Living Will is completely different from a Last Will and Testament. A Last Will and Testament disposes of property through a probate action filed in a court. A Living Will addresses end of life health care decisions and allows you to document these decisions prior to that time, as long as you have the capacity to do so.
What is the Difference Between a Designation of Health Care Surrogate and a Living Will?
Simply put, a Living Will addresses end of life decisions only, and a Designation of Health Care Surrogate appoints someone to act on your behalf if you are unable to do so for all health care decisions.
More specifically, a validly executed Designation of Health Care Surrogate names an individual or individuals to act on your behalf during your incapacity.
Your surrogate will consult with health care providers and provide consent for medical treatment.
This individual can only make decisions on your behalf which he or she believes you would make under the same circumstances. Therefore, it’s important to make your wishes known to your surrogate. If you do not, then your surrogate will use his or her best judgment to decide on medical treatment that is in your best interests.
How is a Valid Florida Living Will Created?
The first requirement for creating a valid Florida Living Will is that you must have capacity.
If you are in a coma or are mentally incapacitated and unable to know the consequences of your actions (such as if you are suffering from dementia), then you cannot create a Living Will.
Therefore, it’s important that you create one before you lose the capacity to do so.
Once your lawyer is satisfied that you have capacity to make your Living Will, you will be presented with the document and will execute it in the presence of two witnesses, who must each sign the document. A Florida notary will then notarize the Living Will.
And remember, as long as you have capacity, you can revoke or make changes to your Living Will.
What Should I Do After I Execute a Florida Living Will?
The first thing you should do is make sure that your family knows that you have executed a Living Will and where it is located. It should be kept with the rest of your estate planning documents in a place that your family has access to if they need it.
You should discuss and provide a copy of your Living Will to your Health Care Surrogate(s) so that he or she knows what your wishes are with regard to end of life decisions.
Finally, you should provide a copy of your Living Will to your physicians, and to the hospital if you are hospitalized. Your Living Will won’t be effective if your physicians do not know that it exists.
A Florida Living Will is an important part of a comprehensive estate plan, and should be given proper consideration before execution. This is not a document that you should execute on your own without a complete understanding of the implications. If you have questions, please seek out legal counsel, whether its me or another qualified estate planning attorney.
