FLORIDA - ADVANCE DIRECTIVES (LIVING WILLS)

January 1, 2008

Florida state laws and regulations that affect your medical practice

1. What is an advance directive?

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, and includes, but is not limited to, a living will, the designation of a health care surrogate, or an anatomical gift.

F.S.A. § 765.101

It is a written or oral statement of the kind of medical care you want or do not want if you become unable to make your own decisions.

F.S.A. § 765.101

3. What is a health care surrogate designation?

It is a document naming a competent adult as your representative to make medical decisions for you if you are unable to make them yourself.

F.S.A. § 765.101

4. What is an anatomical donation?

It is a document that indicates your wish to donate, at death, all or part of your body. This can be an organ and tissue donation to persons in need, or donation of your body for training of health care workers. A donor's wishes can be indicated on a driver's license, state identification card, or in a living will. An anatomical gift made by an adult donor that is not revoked while alive is irrevocable after the donor's death.

F.S.A. § 765.512

5. Is an advance directive required by law?

No. The State of Florida recognizes that every competent adult has the fundamental right of self-determination pertaining to his or her own health, including the right to choose or refuse medical and the preservation of ethical standards in the medical profession. An advance directive ensures that such rights will not be diminished in the event of incapacity. Therefore, the State of Florida recognizes the right of a competent adult to make an advance directive instructing his or her physician to provide, withhold, or withdraw life-prolonging procedures, or to designate another to make the treatment for him or her in the event that such person should become incapacitated and unable to personally direct his or her medical care.

F.S.A. § 765.102

6. What happens when an incompetent patient does not have an advance directive?

If an incapacitated or developmentally disabled patient has not executed an advance directive, or designated a surrogate to execute an advance directive, or the designated or alternate surrogate is no longer available to make health care decisions, health care decisions may be made for the patient by any of the following individuals, known as a "proxy," in the following order or priority:

( a ) The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability;

( b ) The patient's spouse;

( c ) An adult child of the patient, or if the patient has more than one adult child, a majority of adult children who are reasonably available for consultation;

( d ) A parent of the patient;

( e ) The adult sibling of the patient, or if the patient has more than one sibling, a majority of the adult siblings who are reasonably available for consultation;

( f ) An adult relative of the patient who has exhibited special care and concern for the patient and who has maintained regular contact with the patient and who is familiar with the patient's activities, health and religious or moral beliefs; or

( g ) A close friend of the patient.

F.S.A. § 765.401

7. Must an attorney prepare an advance directive?

There is no requirement for the preparation of advance directives by an attorney. Any competent adult may, at any time, make a living will or written declaration and direct the providing, withholding, or withdrawal of life-prolonging procedures in the event that such person has a terminal condition, has an end-stage condition, or is in a persistent vegetative state. A living will must be signed by the principal in the presence of two subscribing witnesses, one of whom is neither a spouse nor a blood relative of the principal. 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 at the principal's direction. It is the responsibility of the principal to provide for notification to her or his attending or treating physician that the living will has been made. The attending or treating physician shall make the living will part of the patient's medical records.

F.S.A. § 765.302

8. Can a patient change his or her mind after executing an advance directive?

Yes. An advance directive or designation of a surrogate may be amended or revoked at any time by a competent principal:

( a ) By means of a signed, dated writing;

( b ) By means of the physical cancellation or destruction of the advance directive by the principal or by another in the principal's presence or at the principal's direction;

( c ) By means of an oral expression of intent to amend or revoke; or

( d ) By means of a subsequently executed advance directive that is materially different from a previously executed advance directive.

F.S.A. § 765.104

9. Is there a suggested form of a living will?

A living will may, BUT NEED NOT, be in the following form:

Living Will

Declaration made this _____ day of ___________ (year), I, _____________________, willfully and voluntarily make known my desire that my dying not be artificially prolonged under the circumstances set forth below, and I do hereby declare that, if at any time I am incapacitated and

________ (initial) I have a terminal condition; or

________ (initial) I have an end-stage condition; or

________ (initial) I am in a persistent vegetative state;

and if my attending or treating physician and another consulting physician have determined that there is no reasonable medical probability of my recovery from such condition, I direct that life-prolonging procedures be withheld or withdrawn when the application of such procedures would serve only to prolong artificially the process of dying, and that I be permitted to die naturally with only the administration of medication or the performance of any medical procedure deemed necessary to provide me with comfort care or to alleviate pain.

It is my intention that this declaration be honored by my family and physician as the final expression of my legal right to refuse medical or surgical treatment and to accept the consequences for such refusal.

In the event that I have been determined to be unable to provide express and informed consent regarding the withholding, withdrawal, or continuation of life-prolonging procedures, I wish to designate, as my surrogate to carry out the provisions of this declaration:

Name: __________________________________________________________________

Address: ______________________________________________________________

________________________________ Zip Code ______________________

Phone: ________________________________

I understand the full import of this declaration, and I am emotionally and mentally competent to make this declaration.

Additional Instructions (optional):

________________________________________________________________________

________________________________________________________________________

(Signed) ________________________________________________________________

Witness: ____________________________ Witness: ____________________________

Address: ____________________________ Address: __________________________

City: _____________ State ____ Zip _____ City: __________ State: _____ Zip: ______

At least one witness must not be a husband or wife or a blood relative of the principal.

Note: The principal's failure to designate a surrogate shall not invalidate the living will.

F.S.A. § 765.303

10. Is there a suggested form for the designation of a health care surrogate?

A living will may, BUT NEED NOT, be in the following form:

Designation of Health Care Surrogate

Name: __________________________________________________

In the event that I have been determined to be incapacitated to provide informed consent for medical treatment and surgical and diagnostic procedures, I wish to designate as my surrogate for health care decisions:

Name: _________________________________________________________

Address: _______________________________________________________

City: _____________________________ State: _______ Zip: ___________

Phone: _______________________________________________________

If my surrogate is unwilling or unable to perform his or her duties, I wish to designate as my alternate surrogate:

Name: _________________________________________________________

Address: _______________________________________________________

City: _____________________________ State: _______ Zip: ___________

Phone: _______________________________________________________

I fully understand that this designation will permit my designee to make health care decisions and to provide, withhold, or withdraw consent on my behalf; or apply for public benefits to defray the cost of health care; and to authorize my admission to or transfer from a health care facility

Additional instructions (optional):

____________________________________________________________________

____________________________________________________________________

I further affirm that this designation is not being made as a condition of treatment or admission to a health care facility. I will notify and send a copy of this document to the following persons other than my surrogate, so they may know who my surrogate is.

Name: ________________________________________________

Name: ________________________________________________

Signed: _______________________________________________

Witnesses: 1. ________________________________________

2. ________________________________________

At least one witness must not be a husband or wife or a blood relative of the principal.

F.S.A. § 765.203

11. Is there a suggested form for anatomical donations?

A gift of all or part of the body may be made by will. The gift becomes effective upon the death of the testator without waiting for probate. A gift may also be made by a document other than a will and becomes effective upon the death of the donor. The document must be signed by the donor in the presence of two witnesses who shall sign the document in the donor's presence. If the donor cannot sign, the document may be signed for him or her at the donor's direction and in his or her presence and the presence of two witnesses who must sign the document in the donor's presence.

The following form of written instrument shall be sufficient:

Uniform Donor Card

The undersigned hereby makes this anatomical gift, if medically acceptable, to take effect on death. The words and marks below indicate my desires:

I give:

( a ) _____ any needed organs or parts;

( b ) _____ only the following organs or parts

[specify the organ(s) or part(s)]

for the purpose of transplantation, therapy, medical research, or education;

( c ) _____ my body for anatomical study if needed. Limitations or special wishes, if any:

[if applicable, list specific donee]

Signed by the donor and the following witnesses in the presence of each other:

Donor's Signature ___________________________ Donor's Date of Birth __________

Date Signed ___________________ City and State __________________________

Witness _________________________ Witness __________________________

Address _________________________ Address __________________________

City _________________ State ______ City __________________ State _______

12. Is an advance directive completed in another state applicable in Florida?

Yes. An advance directive completed in another state, as described in that state's law, can be honored in Florida.

F.S.A. § 765.112

13. How is a patient's capacity to make health care decisions determined?

In determining whether the patient has a terminal condition, has an end-stage condition, or is in a persistent vegetative state or may recover capacity, or whether a medical condition or limitation referred to in an advance directive exists, the patient's attending or treating physician and at least one other consulting physician must separately examine the patient. The findings of each such examination must be documented in the patient's medical record and signed by each examining physician before life-prolonging procedures may be withheld or withdrawn.

F.S.A. § 765.306

14. What is Florida's position on mercy killing or euthanasia?

The State of Florida does not condone, authorize, or approve mercy killing or euthanasia, or permit any affirmative or deliberate act or omission to end life other than to permit the natural process of dying. In addition, the withholding or withdrawal of life-prolonging procedures from a patient does not, for any purpose, constitute a suicide.

F.S.A. § 765.309

Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.