Even though a Living Will and a Last Will have similar-sounding titles, these documents are not the same. A Living Will is a document that is created during someone’s life to instruct caregivers as to that person’s wishes regarding life-prolonging procedures. A Last Will and Testament is a document that only becomes effective once a person dies and usually details a person’s wishes as to who receives his or her possessions upon his or her death.
According to Fl. Stat. §765.302, “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 life-prolonging procedure is defined as “any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function. The term does not include the administration of medication or performance of medical procedure, when such medication or procedure is deemed necessary to provide comfort care or to alleviate pain.” The related statute can be found at Fl. Stat. §765.101.
Similar to an individual’s Last Will and Testament, a Living Will is valid if: (1) it is knowingly and voluntarily created by a competent adult, and (2) signed by the principal in the presence of two subscribing witnesses, at least 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.
Normally, a person’s decision as to whether they would want life-prolonging procedures is dependent upon the circumstances. If, for example, that person is very much alive but is unable to comprehend or communicate because of brain damage, that person would want to rely on someone who’s judgment they trusted to be able to make life-care decisions. Sometimes an elderly or incapacitated spouse is not the decision-maker of choice in such cases. Other times, a close relative may not be the decision-maker of choice because of religious differences. In most cases, the individual chooses a Power of Attorney for Health Care/Designation of Health Care Surrogate who is guided by the creator’s wishes, but is able to make his or her own decision once the actual situation arises. It is best to make this kind of decision outside the emotions of a tragic events rather than appointing the person who happens to drive you to the hospital. For more information about healthcare surrogates, please see our blog on healthcare surrogates.
Creating a valid Living Will is a relatively simple document that protects a principal’s interest if that person cannot act on his or her own behalf. For assistance in drafting your Living Will, please contact the attorneys at Fletcher & Phillips at 904-353-7733.