Overview of Advance Directives in Florida

A. Introduction

Florida statutes provide for Advance Directives, which allow a competent adult the right to make her own decisions with regard to her health.  According to Florida Statute § 765.101(1), an Advance Directive is “a witnessed written document or oral statement in which instructions are given by a principal or in which the principal’s desires are expressed concerning any aspect of the principal’s health care.”  These documents include, but are not limited to, the Designation of a Health Care Surrogate, Living Will, and Anatomical Gift.   This article provides a brief overview of Advance Directives, which should complement one’s estate, business, and tax planning.

B. Purposes of Advance Directives

Florida law, which includes the Florida Constitution, Statutes, and court cases, supports the notion that each competent adult has the right to make her own decisions with regard to her health.  To ensure that this right is not reduced or eliminated by that person’s later physical or mental incapacity, Florida law allows people to execute documents or orally designate another person to direct her medical treatment upon her incapacity.  Even though an oral designation may sometimes suffice, I strongly recommend written and properly executed documents that convey a principal’s wishes with regard to her health.

Lack of properly executed documents may result in a situation that is similar to the Terry Schiavo (“Terry”) case.  In the 1990, at the age of 27, due to a cardiac arrest, Terry permanently lost consciousness and was in a persistent vegetative state.   She had no written Advance Directives in place but, when competent, had orally asserted that if she were in this type of situation, she wished for life-prolonging procedures to be withheld.  Because no executed documents expressed Terry’s wishes concerning her health care, Florida law designated her husband as her health care Proxy.  Terry’s husband wanted to enforce her wishes to refuse life-prolonging treatment, but her parents objected.  In 2005, after approximately seven years of court battles, expenses, and tension between Terry’s husband and her parents and brother, were her wishes, expressed orally, honored, and food and hydration permanently withdrawn.

C. Several Types of Advance Directives

1)    Designation of a Health Care Surrogate.

a.     What Is It? A Designation of a Health Care Surrogate is an oral or written statement that designates a Surrogate to make health care decisions for a principal.  It also may designate an Alternative Surrogate, who may assume the duties of a Surrogate if the original Surrogate is unwilling or unable to perform her duties.

b.     How Does a Designation of a Health Care Surrogate Become Enforceable? In the case of a written Designation of a Health Care Surrogate, the principal must sign the Designation of a Health Care Surrogate in the presence of two adult witnesses, neither of which may be the Surrogate and one of which may be either the principal’s spouse or the principal’s blood relative.  If a principal is unable to sign the Designation of a Health Care Surrogate, the principal may direct, in the presence of two witnesses, that another person sign the principal’s name.  An exact copy of the Designation of a Health Care Surrogate must be provided to the Surrogate.  A properly executed written Designation of a Health Care Surrogate establishes a rebuttable presumption of clear and convincing evidence of the principal’s designation of the Surrogate.

2)    Living Will.

a.     What Is It? A Living Will is a witnessed written or oral statement by which the principal directs the providing, withholding, or withdrawal of life-prolonging procedures (including food and hydration) in the event that the principal has a terminal condition, end-stage condition, or is in a persistent vegetative state.  The Living Will may address whether food and hydration are to be removed under the aforementioned circumstances.

b.     How Does a Written Living Will Become Enforceable? If the Living Will is written, the principal must sign it in the presence of two witnesses.  One of these witnesses must be neither the principal’s spouse nor blood relative.  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 in at the principal’s direction.  A properly executed Living Will will establish a rebuttable presumption of clear and convincing evidence of the principal’s wishes.

c.     What If No Living Will Exists? If the patient designated a Health Care Surrogate, the Health Care Surrogate may make the decision whether to withhold or withdraw life-prolonging procedures unless the Designation of a Health Care Surrogate limits the Health Care Surrogate from doing so.  If the patient has not designated a Health Care Surrogate, the Proxy may make the decision to withhold or withdraw life-prolonging procedures.  In this case, the Proxy’s decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient’s best interest.  In the Schiavo case, Terry’s husband established by clear and convincing evidence that removal of life support would have been the one Terry would have chosen had she been competent.

3)    Anatomical Gift.

a.     What Is It? An Anatomical Gift is a donation of all or part of a human body to take effect after the donor’s death and to be used for transplantation, therapy, research, or education.

b.     How Do I Become a Donor? A person may become a donor in any of the following ways:

i.      By joining Florida’s organ tissue and donor registry by registering through the Donate Life Florida website or when renewing her driver license online, or when obtaining/renewing her license at a local driver license office;

ii.     By signing a tissue and organ and tissue donation card;

iii.    Signifying intent to donate on her driver’s license or identification card issued by the Florida Department of Highway Safety and Motor Vehicles;

iv.    Expressing a wish to donate in a Living Will or other Advance Directive;

v.     Executing a will that includes a provision indicating that the testator wishes to make an Anatomical Gift; and

vi.    Expressing a wish to donate in a properly executed document other than a will (Florida Statute § 765.514 provides a Uniform Donor Card);

vii.    By a Health Care Surrogate if the person has not made an Anatomical Gift and absent actual notice of contrary indications; or

viii.   If no Health Care Surrogate and if the person has not made an Anatomical Gift and actual notice of contrary indications, by certain persons listed in the Anatomical Gift statutes.

D. Benefits of Advance Directives

1)    Power to Make Decisions Regarding Health Issues.  As mentioned above, through Advance Directives, a person can make decisions regarding her health even though she is not competent to do so.  Doing so allows and not statute or a judge, to control her destiny.  Oftentimes, religious believes dictate a person’s decisions with regard to health issues.  Properly written Advance Directives that address a person’s religious beliefs may ensure that the health decisions, some of which involve life or death and quality of life, are made in accordance with those beliefs.

2)    Reduction or Elimination of Guardianship. Advance directives may reduce or eliminate guardianship, which can be invasive, expensive, public, and time consuming.

3)    Less Tension and Conflict Among Family and Friends. When a person is incapacitated, the incapacitated person’s family members and friends may have different opinions with regard to health decisions, some of which involve life or death and quality of life.  The tension that the person’s incapacity creates and the gravity of the decisions that must be made very likely will lead to conflict, possibly through litigation, among the incapacitated person’s family members and friends.   Proper Advance Directives, however, should provide certainty regarding the incapacitated person’s wishes.  Thus, they may eliminate tension, conflict, and even litigation.

4)    More Certainty for Doctors Who Are Responsible. If an incapacitated person does not have Advance Directives, the incapacitated person’s doctors will be uncertain about her wishes.  As a result, they may refrain from providing certain services to the incapacitated person.  For example, if a person who wants to life support removed in the event she is in a persistent vegetative state does not have a Living Will, her attending physician may be uncomfortable removing life support.  On the other hand, Florida law provides that a health care facility or provider will not be subject to criminal or civil liability as a result of carrying out a health care decision made in good faith and in accordance with a proper Advance Directive.  In addition, the health care facility or provider will not be deemed to have engaged in unprofessional conduct under these circumstances.  Finally, the Surrogate or Proxy who properly and in good faith makes a health care decision on a patient’s behalf, will not be subject to criminal or civil liability.

E. Amendment or Revocation of Advance Directives

A competent person may amend or revoke any of her Advance Directives.  One way to do so is by revoking an Advance Directive orally or by physically canceling or destroying it.  Nevertheless, I strongly recommend written and properly executed revocations and amendments.  In addition, a later executed Advance Directive may revoke a previous Advance Directive that is materially different.  Finally, unless otherwise provided in the Advance Directive or in an order of dissolution of marriage, dissolution or annulment of marriage revokes the designation of a principal’s former spouse as a Surrogate.

F. Recognition of Advance Directive Executed in Another State

Florida law holds valid an Advance Directive executed in another state that complies with the law of that state or with Florida law.  Nevertheless, I recommend that Florida residents properly execute Florida Advance Directives.  The reason for my recommendation is that an Advance Directive from another state may contain technical terms that have different meanings in Florida.  For example, another state may refer to a “Health Care Surrogate” as a “health care Proxy” or “health care power of attorney.”  Under Florida law, a “health care Proxy” or “health care power of attorney” are distinctly different to a “Health Care Surrogate,” and thus may cause confusion, which these documents are prepared and executed to avoid.

G. Won’t “Pulling the Plug” Lead to Mercy Killing or Euthanasia?

Florida law is clear that even though Advance Directives are permitted and even encouraged, it does not condone, authorize, or approve mercy killing or euthanasia.  In addition, Florida law does not permit any act or omission to end life other than to permit the natural process of dying.  For a review of how other states address this issue, see “The Estate Planner’s Guide to the Right to Die,” by Alan S. Gassman, J.D., LL.M., Nathan West, J.D., LL.M. and Sydney Smith, J.D.

H. Is Withholding or Withdrawal of Life-Prolonging Procedure in Accordance with an Advance Directives a Suicide?

According to Florida law, the withholding or withdrawal of life-prolonging procedures in accordance with an Advance Directive is not a suicide.

I. What Happens in the Absence of an Advance Directive?

The law provides a list of individuals that may make health care decisions for an incapacitated patient.  A person who is higher on the list is given priority.  These individuals are known as “proxies,” and include a guardian, a spouse, an adult child, an adult sibling, and a close friend of the patient.

A Proxy’s decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if no indication of what the patient would have chosen exists, that the decision is in the patient’s best interest.

*This document contains legal information, but does not contain legal advice.

*This document has examined laws in effect in through September 12, 2013.

UPDATED SEPTEMBER 12, 2013.