What Are Advance Directives?

1.  What is a Living Will?

Every competent adult has the right to make a written declaration commonly known as a "Living Will." The purpose of this document is to direct the provision, the withholding or withdrawal of life prolonging procedures in the event one should have a terminal condition. The suggested legal form for this instrument has been provided by the Legislature within Florida Statutes, Section 765.303. 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.  One is not restricted to the use of the legal form provided by statute, but can expand or limit the coverage of the statutory legal forms.  An experienced estate planning attorney or elder law attorney can assist you in preparing an advance directive that is broader or more narrow than the statutorily provided legal forms.  (Back to Top of Page)

2.  What is the difference between a Living Will and a legal will?

A Living Will should not be confused with a person’s legal will (commonly referred to as a Last Will and Testament), which disposes of personal property on or after his or her death, and appoints a personal representative or revokes or revises another will and is usually drafted by a Florida wills lawyer.  (Back to Top of Page) 

3.  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.   (Back to Top of Page) 

4.  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. The Coleman Law Firm, since 2002, maintains and electronic file containing all of its clients' advance directives, including the living will, and can provide those douments via fax or email at anytime during normal working hours. There are a number of national services that provide for the electronic storage of your living will and other advance directives, usually for a small fee.  These services will provide copies of your living will, or other advance directives 24 hours a day, seven days a week, by fax, email, or regular mail. Among the companies providing such services are:  DocuBank, the National Register of Living Wills, and the U.S Living Will Registry.   Many individual State governments have also established a living will registry designed for residents of the State.  Some lawyers provide storage for advance directives they have prepared for their clients.  The Coleman Law Firm maintains client records, including advance directives that can be obtained upon request by either email or facsimile transmission, as well as the US Postal Service.   (Back to Top of Page)

5.  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 legal form for this instrument has been provided by the Legislature within Florida Statutes Section 765.203.   (Back to Top of Page) 

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.   (Back to Top of Page) 

8.  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 have been revoked.  (Back to Top of Page)  

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

Do all attorneys practice elder law?

If you need legal advice regarding advance directives for health care, either a living will or a designation of health care surrogate, please call your Jacksonville lawyer for advance directives, the estate planning lawyers and elder law attorneys at the Coleman Law Firm at 904-448-1969 or toll free at 1-888-492-2468, or email us at info@TheColemanLawFirm.net.   (Back to Top of Page)