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Most people think of a Will as something that only gets used after they’re dead. But a living will is different. Understanding what a living will is why you should get one can help you round out your estate plan. It will provide your family with important guidance should anything happen to you, and make it easier for them to make difficult decisions on your behalf.
A living will, sometimes called a Health Care Directive is a type of Advance Directive that is included in a thorough estate plan. It is a legal document that clearly lays out your preferences for medical treatment and end of life care. It can also address alternative treatments for a specific diagnosis or illness.
Unlike a Last Will and Testament, advance directives like living wills are used while you are still alive. They don’t override your choices in that moment. However, if you become unable to make or express your preferences because you are incapacitated or unable to speak, a living will can guide your Health Care Surrogate and doctors to ensure your medical treatment follows your religious beliefs and preferences for care.
Advance directives are a collection of documents that together can guide your medical providers in providing emergency or end-of-life treatment when you are unable to communicate. Advance directives include:
The best known type of Advance Directive is a living will. It can be drafted at any time, but only becomes effective when a doctor diagnoses you with a:
A living will can be modified or revoked at any time. Also, even after you have signed one, your doctors are generally still required to consult with you about your personal preferences before acting on your written wishes.
A Healthcare Surrogate Designation is a form indicating who you want to make decisions about your medical treatment and care for when you are unable to make them yourself. This is sometimes called a Durable Power of Attorney for Health Care. It is generally paired with HIPAA release forms, giving your doctors permission to speak to the Health Care Surrogate about your medical condition and treatment options.
A Do Not Resuscitate Order or DNR is a form that specifically indicates you do not want cardiopulmonary resuscitation (CPR) if you stop breathing or your heart stops beating. It relieves your medical providers from their legal duty to resuscitate you. Similarly, a Do Not Intubate Order or DNI instructs your medical providers not to insert a breathing tube to restore your breathing. Our office cannot prepare these documents for you, and you should instead speak to your doctor about them.
If you wish to donate your organs or body for transplant, research or education, you will need to complete an anatomical donation form. Your living will can reinforce this intent by directing your medical providers and health care surrogate to use or donate your body according to its terms.
A living will takes the pressure off your loved ones when making decisions about your medical or end-of-life care. It eliminates the risk that your spouse or next of kin will do something you will regret because they forgot about a conversation, or didn’t know your desires around a specific topic. Paired with a health care surrogate designation, a living will can avoid forcing your family to file a petition for guardianship to make sure you are cared for.
Living wills are especially important if your religious beliefs or personal values limit your medical choices. It is important to remember that doctors are legally required to provide certain medical care, and advanced directives may be the only way to ensure your wishes not to be resuscitated, for example, will be honored.
Despite how useful advance directives are, most people don’t have them. Gallup’s 2020 Values and Beliefs poll shows that only 45% of Americans say they have a living will. But that number has been going up, especially since the pandemic, when news reports about severe COVID reactions requiring intubation made people more aware of the need to make medical decisions while they are unable to speak.
According to Florida law, any competent adult may write a living will directing the provision of treatment and life-prolonging care in the cases of a terminal condition, end-stage condition, or persistent vegetative state. For a living will to be valid, you must sign the document in the presence of two witnesses – not your spouse or blood relatives – who also sign the documents. You also must notify your primary physician that the living will has been made and provide a copy to be included in your medical records. If you are taken to a medical facility for treatment, any person can provide a copy of your living will to that facility to make sure it is followed. So it is a good idea to provide copies to your closest relatives once it has been fully executed.
At Harrison Estate Law, we want to help you prepare for your end-of-life care by making it easy for family and doctors to honor your wishes. Please contact us online or via email or call 352-559-9828 to schedule a free consultation. We have extended evening and weekend appointments available upon request. We also offer consultations by phone or Zoom. We will be happy to meet with you to craft a living will that will explain what you do and don’t want to happen as you face your final days.
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