What Is a Living Will in Florida?

A living will is a legal document that allows a competent adult to express their wishes regarding end-of-life medical treatment in advance, so that those wishes can be honored if the person later becomes incapacitated and unable to communicate. In Florida, living wills are governed by the Florida Life-Prolonging Procedure Act, found in F.S. Chapter 765. A living will is a critical component of a comprehensive estate plan because it ensures that your healthcare preferences are known and respected during a medical crisis, even when you are unable to speak for yourself.

At the Law Offices of Albert Goodwin, PA, we help clients throughout Florida prepare living wills, healthcare surrogate designations, and other advance directives as part of a thorough estate plan. Our attorneys ensure that your documents are properly drafted and executed in compliance with Florida law so that your wishes are legally enforceable.

Living Will vs. Last Will and Testament

One of the most common sources of confusion is the difference between a living will and a last will and testament. Despite sharing the word "will," these are entirely different legal documents that serve different purposes.

A last will and testament is a document that directs how your property and assets will be distributed after your death. It names beneficiaries, appoints a personal representative to administer your estate, and may include provisions for the care of minor children. A last will only takes effect upon your death and is carried out through the probate process.

A living will, by contrast, has nothing to do with the distribution of property. It is a healthcare directive that takes effect during your lifetime—specifically, when you are in a terminal condition, have an end-stage condition, or are in a persistent vegetative state, and are unable to make or communicate your own medical decisions. The living will instructs your healthcare providers and family members about whether you want life-prolonging procedures to be provided, withheld, or withdrawn under those circumstances.

What a Florida Living Will Covers

Under F.S. § 765.303, a Florida living will allows you to direct your healthcare providers regarding the use of life-prolonging procedures when you have been diagnosed with any of the following conditions:

• Terminal condition: A condition caused by injury, disease, or illness from which there is no reasonable medical probability of recovery and which, without treatment, can be expected to cause death.
• End-stage condition: An irreversible condition caused by injury, disease, or illness that has resulted in progressively severe and permanent deterioration, and which, to a reasonable degree of medical probability, treatment of the condition would be ineffective.
• Persistent vegetative state: A permanent and irreversible condition of unconsciousness in which there is an absence of voluntary action or cognitive behavior and an inability to communicate or interact purposefully with the environment.

In your living will, you can specify whether you want life-prolonging procedures—such as mechanical ventilation, artificial nutrition and hydration, cardiopulmonary resuscitation, and similar medical interventions—to be provided or withheld in each of these situations. You can also express your preferences regarding pain management and palliative care, stating that you wish to receive comfort care and medication to alleviate suffering even if you decline other life-prolonging treatments.

Requirements for a Valid Living Will in Florida

For a living will to be legally valid and enforceable in Florida, it must meet the requirements set forth in F.S. § 765.302. These requirements include:

• Competent adult: The person making the living will must be a competent adult at the time of execution. Florida law defines a competent adult as a person who is 18 years of age or older and who has not been adjudicated incapacitated.
• Written document: The living will must be in writing. Oral declarations are not sufficient to create a valid living will in Florida.
• Signature: The document must be signed by the principal (the person making the living will) or, if the principal is physically unable to sign, by another person in the principal's presence and at the principal's direction.
• Witnesses: The living will must be signed in the presence of two subscribing witnesses, at least one of whom is not a spouse or a blood relative of the principal.

While Florida law does not require a living will to be notarized, having the document notarized can help avoid challenges to its validity and can make it easier for healthcare providers and institutions to accept and rely on the document. Many attorneys recommend notarizing a living will as a best practice.

How a Living Will Takes Effect

A living will does not take effect immediately upon signing. It becomes operative only when two conditions are met: (1) the principal has been determined by the attending physician to be in a terminal condition, end-stage condition, or persistent vegetative state, and (2) the principal is no longer able to make or communicate their own healthcare decisions.

Under F.S. § 765.304, the attending physician and at least one other consulting physician must confirm the patient's condition before the living will's directives are implemented. Once these determinations have been made and documented in the patient's medical records, the healthcare provider is required to follow the instructions in the living will or transfer the patient to another provider who will comply.

Relationship Between a Living Will and a Healthcare Surrogate

A living will and a healthcare surrogate designation are complementary documents that work together to protect your healthcare wishes. While a living will addresses specific end-of-life scenarios, a healthcare surrogate designation under F.S. § 765.202 appoints a specific person to make healthcare decisions on your behalf whenever you are unable to do so—not just in end-of-life situations.

The healthcare surrogate can make a wide range of medical decisions, including decisions about surgery, medication, therapies, and other treatments. If you have both a living will and a healthcare surrogate designation, the surrogate is expected to follow the instructions in your living will when making end-of-life decisions. For decisions that fall outside the scope of the living will, the surrogate must use their best judgment based on your known values and preferences.

If you do not have a designated healthcare surrogate and you become incapacitated, Florida law provides a statutory hierarchy of individuals who may make healthcare decisions on your behalf under F.S. § 765.401. This statutory "proxy" list prioritizes the patient's court-appointed guardian, spouse, adult child, parent, adult sibling, and so on. However, relying on the statutory proxy list can lead to disputes among family members and decisions that may not reflect your true wishes. Designating a healthcare surrogate in advance avoids these problems.

Revoking or Amending a Living Will

A Florida living will can be revoked or amended at any time by a competent principal. Under F.S. § 765.104, revocation can be accomplished by a signed and dated written statement, by the physical destruction of the document, by an oral expression of intent to revoke in the presence of two witnesses, or by the execution of a subsequent living will that is materially different from the prior one.

It is important to review and update your living will periodically, particularly after significant life events such as a marriage, divorce, serious illness, or change in your healthcare preferences. If your living will no longer reflects your wishes, it should be revoked and replaced with a new document that accurately states your current directives.

Why Every Florida Resident Needs a Living Will

Without a living will, decisions about your end-of-life care will be made by others—potentially family members who disagree with each other or who do not know what you would have wanted. A living will removes uncertainty, reduces the emotional burden on your loved ones, and ensures that your wishes are respected. Combined with a healthcare surrogate designation, a power of attorney, and a last will and testament or revocable living trust, a living will is an essential part of a complete Florida estate plan.

Contact a Florida Estate Planning Attorney

If you need a living will or want to review and update your existing advance directives, the Law Offices of Albert Goodwin, PA can help. We prepare living wills, healthcare surrogate designations, and comprehensive estate plans for clients throughout Florida. Contact us at our office at 121 Alhambra Plz #1000, Coral Gables, FL 33134. Call 786-522-1411 or email [email protected] to schedule a consultation.