Robert G Lowe, PL
Attorney and Counselor at Law
Clearwater, Florida
Phone: 727.647.3700


FLORIDA LIVING WILL FAQ

        For personalized answers to your specific situation please contact Bob by e-mail or by phone at 727-647-3700.


What is a Living Will?

        Every competent adult has the right to make a written declaration commonly known as a "Living Will" expressly stating their preferences and / or directions as to the withholding or withdrawal of life prolonging procedures in the event one should have a terminal condition. The suggested form of this instrument has been provided by the 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.

        The Florida Bar Association and Florida Medical Association approves of this living will for Florida Residents.

        Florida law regarding Living Wills and Similar Instruments can be found in Chapter 765 of the Florida Statutes.

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What is the difference between a Living Will and a legal Will?

        A Living Will should not be confused with a legal Will or Last Will and Testament, which provides for the disposition of assets, real and personal property after death.

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How do I make my Living Will effective?

        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 has been signed in another state, if that Living Will was signed in compliance with the laws of that state, or in compliance with the laws of Florida.

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After I sign a Living Will, what is next?

        Once a Living Will has been signed, it is the maker's responsibility to provide notification to the physician of its existence. It is a good idea to provide a copy of the Living Will to the maker's physician and hospital, to be placed within the medical records.

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What is a 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. The Surrogate also provides informed consent and makes only health care decisions for the maker, which he or she believes the maker would have made under the circumstances if the maker 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 has been provided by the Legislature in Section 765.203, Florida Statutes.

        The Florida Bar Association approves this form for Florida residents to designate a health care surrogate.

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How do I designate a Health Care Surrogate?

        Under Florida law, designation of a Health Care Surrogate should be made through a written document, and should be signed in the presence of two witnesses, at least one of whom is neither the spouse nor a blood relative of the maker. The person designated as Surrogate cannot act as a witness to the signing of the document.

To be truly effective, your health care surrogate designation should include permission to health care givers and / or physicians to release information concerting your medical condition (diagnosis and prognosis) compliant with the federal Health Insurance Portability and Accountability Act (HIPAA). Failure to include this permission may render the your health care surrogate designation moot as the doctors will not be able to provide information to your surrogate who cannot therefore make any decisions regarding your health.

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Can I have more than one Health Care Surrogate?

        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 Health Care Surrogate. Unless the designation states a time of termination, the designation will remain in effect until revoked by its maker.

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Can the Living Will and the Health Care Surrogate designation be revoked?

        Both the Living Will and the Designation of Health Care Surrogate may be revoked by the maker at any time by a signed and dated letter of revocation; by physically canceling 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 the attending physician that the Living Will and Designation of Health Care Surrogate has been revoked.

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What if the doctor or healthcare provider says they cannot disclose my condition, diagnosis or prognosis to my health care surrogate?

        The Health Insurance Portability and Accountability Act (HIPAA) imposes restrictions on the disclosure a patient's medical information. In order to avoid any problems both living wills and designations of healthcare surrogate should include HIPPA release language that would ensure that the persons specified in your living will and health care surrogate are allowed to receive the information they need to carry out your medical care declarations and instructions.

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Where can I go to obtain legal advice on this issue?

        The material on this web site represents general legal advice. Since the law is continually changing, some provisions may be out of date. It is always best to consult an attorney about your legal rights and responsibilities regarding your particular case. If you believe you need legal advice, call your attorney. If you do not have an attorney, please contact Bob by e-mail or by phone at 727-647-3700. Or call The Florida Bar Lawyer Referral Service at 1-800-342-8011, or the local lawyer referral service or legal aid office listed in the yellow pages of your telephone book.

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        For personalized answers to your specific situation please contact Bob by e-mail or by phone at 727-647-3700.


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This site was last updated August 2015.