Most people put off advance directives because the subject is uncomfortable. Yet they are among the most practical documents an adult can have. If an illness or injury leaves you unable to speak for yourself, a directive tells your doctors who should decide for you and what you would want.

This article is general information, not legal advice. Florida’s rules are set out in Chapter 765 of the Florida Statutes. For advice on your own situation, especially with a complicated family, property in more than one state, or a guardianship question, speak with a Florida attorney who handles estate planning or elder law.

The main documents

Florida law defines an advance directive broadly. It includes:

  • A designation of health care surrogate, naming the person who makes health care decisions for you.
  • A living will, stating your wishes about life-prolonging treatment in specific situations.
  • An anatomical gift, your decision about organ and tissue donation.

You can complete one, two or all three. Florida’s Agency for Health Care Administration publishes a consumer guide with sample forms. The statute provides suggested wording, but its own text says a living will may, but need not, follow that form.

Health care surrogate

Under section 765.202:

  • The designation must be signed in front of two adult witnesses.
  • The person you name as surrogate cannot be one of the witnesses.
  • At least one witness must be neither your spouse nor a blood relative.
  • You may name an alternate surrogate in case the first is unwilling or unavailable.
  • Your surrogate should be given an exact copy.

Florida also lets you choose whether your surrogate’s authority starts immediately or only if you lose capacity. Immediate authority can help a spouse or adult child who already helps with appointments and records.

Under section 765.204, you are presumed able to make your own decisions, and while you can, your wishes control. If capacity is in question, your physician evaluates it and records the result, and a second physician is involved when the first is unsure.

Living will

Under section 765.302, any competent adult may make a living will directing whether life-prolonging procedures are provided, withheld or withdrawn if they have a terminal condition, an end-stage condition, or a persistent vegetative state. It needs the same witnessing as a surrogate designation: two witnesses, at least one neither a spouse nor a blood relative.

The statute puts the responsibility on you to let your primary physician know the living will exists, so that it becomes part of your medical record. In practice, give copies to your doctor, your surrogate and close family, and tell them where the original is kept. The AHCA guide also suggests a wallet card saying you have a directive.

If there is no directive

When an incapacitated adult has no directive, section 765.401 sets an order of people who may act as a proxy: a court-appointed guardian, then a spouse, then a majority of adult children who are reasonably available, then a parent, then a majority of adult siblings, then a close relative or friend who meets the statute’s conditions, and finally a licensed clinical social worker chosen through a bioethics committee.

That order may not match whom you would choose. A partner you are not married to, or one child who knows your wishes best, is not automatically first in line. Naming a surrogate avoids this.

Changes, other states and DNR orders

  • Changing or revoking. Under section 765.104, you can amend or revoke a directive at any time with a signed and dated writing, by destroying it, by an oral statement, or by signing a new one. Divorce revokes a former spouse’s designation as surrogate unless the document or court order says otherwise.
  • Directives from another state. Section 765.112 says a directive validly made under another state’s law, or Florida’s, is valid in Florida. Seasonal residents may still want an attorney to review older documents.
  • Do not resuscitate orders. A Florida DNRO is a separate form, DH Form 1896. The Department of Health says it must be printed on yellow paper and signed by your physician or another authorized clinician to be honored by emergency crews outside a hospital.

Financial decisions are handled differently, usually through a durable power of attorney under a separate chapter of Florida law. An attorney can explain how the documents fit together.

Our articles on concierge care for aging parents and what happens with a concierge doctor during a hospital stay cover the medical side of planning ahead.

At Legacy Medical, Dr. Shtern is glad to talk through the medical questions behind a living will, such as what a ventilator or feeding tube involves, and to keep copies of your directives in your chart. She is affiliated with Jupiter Medical Center and Palm Beach Gardens Medical Center. Families can read more on care for families, and the first visit is a complimentary meet and greet.

This article is general information, not advice for your situation. Members can call the office with questions about their own care.