Imagine standing in a hospital after a loved one’s accident, surgery, or illness and being asked whether the doctors should “pull the plug.” Would you know what to say? Do you know how your closest relatives prefer to be treated in their final days? A living will is designed to make it easier for family members and health care surrogates to make these tough decisions and honor your wishes, if you aren’t able to speak for yourself.
A living will is part of every thorough estate plan, just like the Last Will and Testament. However, while the names are similar, the purpose of a living will is completely different from a Will or trust. They are designed to direct the distribution of your assets after you pass away, but a living will comes into play a bit sooner.
A living will, sometimes also called a health care directive or an advance directive, is a formal document that states a person’s desire for their end-of-life treatment. Unlike a Last Will and Testament, a living will has little effect after a person dies (though it may give direction regarding organ donation or autopsies). Instead, it describes the degree to which life-saving measures should be used and whether any specific treatment options should be withheld. To be valid, it must be signed by the patient and two witnesses. At least one witness cannot be the person’s spouse or blood relative.
A living will is related to a “Do Not Resuscitate Order” (DNR), but it isn’t the same. Both direct how you want to be treated in your final days, but while it has to do with treatment after a person is incapacitated, a DNR order applies to situations where your heart stops or you stop breathing and hospital personnel or EMTs are trying to revive you. A DNR must be signed by both the patient and their physician, so they are most often obtained at the doctor’s office.
According to Florida state law, it goes into effect when a you are incapacitated, meaning you are “physically or mentally unable to communicate a willful and knowing health care decision” and have either:
At that point, your treating physician and at least one other consulting doctor must both agree that you aren’t reasonably likely to recover from your condition. Once they reach this agreement, your living will becomes enforceable.
The living will directs what is done, not who makes the decision. If your estate plan includes a living will but not a health care surrogate designation naming who should make medical decisions for a patient, then the doctors and hospital personnel will strictly apply the language of the living will once it has gone into effect. Without a health care surrogate designation your treatment decisions could be made by a doctor based on a cold clinical assessment.
However, when you have prepared both a health care surrogate designation and a living will, the living will provide guidance to the loved one you have selected to make decisions on your behalf. This is the best arrangement because it allows someone who cares for you to consider the doctor’s assessments and your stated wishes before deciding whether to authorize treatment. Without a living will, your loved one could be left with the responsibility of making decisions without any guidance about how you would have reached those decisions yourself.
A living will can be part of a complete estate plan, but it can also stand on its own with the help of a health care surrogate designation. Many Florida residents would benefit from having a living will in place long before they might need a full formal estate plan.
In 2019, more than 5,000 young adults ages 20-24 were hospitalized due to injury. For ages 35-44, those numbers more than doubled. Adult children attending college or going out on their own may still expect that if something happens to them their parents will step in to make decisions for them. However, as legal adults, that may be more difficult than it seems.
Without a living will and health care surrogate designation, Florida law provides for an order of priority of who can make decisions for the adult child, starting with their spouse, then parents, and then adult siblings. However, if parents are divorced and can’t agree on the proper course, a family member will likely need to go to the Florida probate court to be appointed guardian to resolve the dispute and make decisions on the adult child’s behalf. By proactively putting together this part of their estate plan early, you can avoid potential disputes and make sure you can continue to make these tough decisions for your children, even after they’ve legally become adults.
At its most basic level, a living will can instruct that “life-prolonging procedures” should be withheld or withdrawn if they wouldn’t do anything but prolong the process of dying. Many of the forms available online use sweeping language, essentially instructing doctors to let you die naturally. However, this broad language could leave you suffering without medication or pain relieving procedures while nature takes its course.
Rather than relying on a one-size-fits-all form, it is a good idea to have a thorough conversation about your end-of-life care with an experienced estate planning attorney now, while you are healthy. This attorney can customize your living will to explain your preferences regarding:
In each case, the living will can provide specific guidance for your health care surrogate or doctors, including how long ongoing treatments should be used and whether your surrogate can sign a DNR order on your behalf.
If that seems like a lot to decide for you as a healthy adult, think of how hard it might be for your loved ones to make those choices after you are incapacitated. By being proactive and working through the tough decisions with an estate planning attorney ahead of time, you can ease the burden on your loved ones who could end up making tough decisions on your behalf.
At Harrison Estate Law, we want to help you make honoring your wishes easy for your family and loved ones. We will be happy to meet with you to review your end-of-life wishes, crafting a living will that will explain what you do and don’t want to happen as you face your final days. Please contact us online or via email or call 352-306-3835 to schedule a free consultation. If you don’t live close to Gainesville or are practicing social distancing, we are happy to set up a phone or Skype call.