What Is A Living Will? Part I

Florida Statute section 765.101(11) defines a living will as (a) a witnessed written document that a person has voluntarily signed or (b) a witnessed oral statement expressing instructions on life prolonging procedures. Of course, the Terri Schiavo case has shown us the efficacy of an oral statement.  In that case, the argument over whether she expressed such instructions and what they meant went on for years.   That single two part sentence does not do much to explain what a living will really is.  As is typical with legislation, we must look elsewhere to really understand what a living will is and why you would want one.

The public policy behind living wills and other “advance directives” is contained in Florida Statute section 765.102.  The legislature thankfully recognizes that it is a fundamental right of each person to make decisions regarding his or her own health, including the right to choose or refuse medical care.  Chapter 765 protects this fundamental right in the event a person is unable to express his or her own wishes due to incapacity by allowing the person to plan for incapacity.  That is, a person can express his or her wishes before the incapacity arises.  This is cheaper and less restrictive than a guardianship and allows the incapacitated person to immediately resume complete control once capacity is reestablished.

The incapacity requirement is an important point.  Many of my clients seem to fear that once they sign a living will they’ll lose control and that the living will is going to govern events even if they wish to fight their illness.  A living will only applies when you’re unconscious or otherwise lack capacity and you’re in a persistent vegetative state, an end-stage condition, or terminal condition.  Your fundamental right to choose or refuse treatment is your right so long as you have the capacity to express a wish. Furthermore, Florida Statute section 765.105 provides for an expedited judicial review under Florida Probate Rule 5.900 of any decisions made pursuant to an advance directive if one of six standards is met.

Part III of Florida Statute Chapter 765 deals specifically with the execution and contents of a living will.  Florida Statutes section 765.302(1) states:

(1)  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.

There it is!  That sentence describes what a living will is and when it is effective.  It is a written declaration or (because the definition of the phrase “living will” includes a witnessed oral statement) oral instructions directing that your life not be prolonged in the event that you have one of the three conditions listed.  “End stage condition”, “persistent vegetative state”, and “terminal condition” are defined at Florida Statute section 765.101, subparagraphs (4), (12), and (17) respectively.  A written living will must be signed in the presence of two witnesses who also sign their names to the document.  One of the witnesses must not be a spouse or blood relative of the person signing the living will.  If the person cannot physically sign his or her own name, then one of the witnesses can sign for the person in his or her presence as directed.

These requirements are interesting in that by definition a living will can include witnessed oral instructions.  The most likely “witnesses” to oral statements are your spouse and/or your blood relatives.  What is the likelihood that you’re going to have at least two witnesses?  For many people, this is likely to be a private matter although for the more gregarious among us (myself included) this could come up at dinner or around a campfire.  In any event, I would urge you to make sure that your wishes are unambiguously clear and in writing.  It is the responsibility of the person signing the living will to notify his or her treating physician of the living will.  If that person is unable to do so, another person may do it for them.  The living will is to promptly be made a part of a patient’s medical records.

We’ll consider the statutory definitions of “persistent vegetative state”, “end-stage condition”, and “terminal condition” in the next post along with other details, including the recommended form for a living will, and whether you should have a living will.

Copyright Notice:  All Rights Reserved Harry Thomas Hackney, P.A. 2007

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The Rule of Law

 

Today I’m going to take a break from writing tips to climb on my soapbox. I have an apparently self-loathing lawyer friend who likes to complain that we lawyers are carbuncles on the face of humanity I like to point out to him that one of the founding principles of America is that we “are a government of laws and not of men.” That is, we are all governed by the rule of law. It is the rule of law that has made America the richest nation on earth and the last remaining superpower. Lawyers have always played a significant role in American society. It is nothing new. America has grown in wealth because of this and not in spite of this.

 

We have laws that create stable capital markets. Intellectual property law protects innovators and creators allowing them to profit from their creations. Businesses, credit card companies, and banks can all extend credit because of the rule of law. Minority shareholders can invest knowing that their rights are protected. Foreign investors can buy real property, bonds, and shares secure in the knowledge that some arbitrary and capricious decree will not deprive them of their property. Americans can buy homes and other property knowing that their property rights are protected by the rule of law. In short, it is the rule of law that makes the American economy function.

 

I was reminded of this while reading Thomas L. Friedman’s book “The World Is Flat: A Brief History of the Twenty-first Century.” He has a section where he talks about the sclerotic regulatory and legal systems of other countries where a bankruptcy can take ten years or a routine collection matter can take “27 procedures” and “more than 550 days.” Small business owners cannot get credit because of inefficient courts and poor mechanisms for enforcing debts. The adoption of efficient regulatory and legal systems is one of the major differences between emerging economic powers like China and India and the also rans like Egypt, sub-Saharan Africa, and Latin America.

 

Mexico is located on the same continent as the U.S. and has relatively abundant resources, including oil. Yet, according to Mr. Freidman, Mexico imports statues of the Virgin of Guadalupe from China. Mexico has a large supply of cheap labor and yet it languishes in poverty while China races ahead. A Mexican citizen can buy a condominium anywhere in America and know that his investment is respected and protected, but an American cannot do the same in Mexico. China’s economic reforms have created enough comfort for foreign citizens to invest there and do business with China. This is one of the key differences between the countries. These differences are due in part to the rule of law.

 

Is there room for reform? Sure. Things can always be made better. Procedures, especially for smaller matters, could be streamlined. Could we use fewer lawyers and more engineers? Absolutely. But the next time you sit in your own home and bash lawyers, remember that it is a well established system of laws that allowed you to borrow the purchase price of your home, record the deed, and protect it against all others.

 

 

Copyright Notice: All Rights Reserved Harry Thomas Hackney, P.A. 2007

What Is A Revocable Living Trust?

A revocable living trust or intver vivos trust is a written document created by one or more persons called settlors or grantors. (For simplicity, we will use just the term “trust” instead of revocable living trust throughout the rest of this post.) The trust instrument names a trustee or trustees who have the power to control whatever property is placed in the trust subject to the settlor’s instructions. The trust property is used for the benefit of one or more beneficiaries. In fact, the trustee has a fiduciary obligation to follow the settlor’s instructions, to prudently manage the property of the trust, and to act in the best interests of the beneficiaries. With a living trust, the settlor is usually the trustee and is also a beneficiary during his or her lifetime. Thus, the settlor retains complete control over his or her property while living and competent.

One of the advantages of a revocable living trust is that a successor trustee takes over the trustee duties when the settlor dies or becomes incapacitated. This feature can help to avoid probate and reduce the likelihood of a guardianship.

In a nutshell, a living trust is an artificial legal entity created by a settor or grantor that provides instructions for the management of the settlor’s property during his or her life and the final management and distribution of the property after death. A trust has advantages if you become disabled because the successor trustee can manage the property for you and you can leave detailed enforceable instructions. A trust avoids a guardian of the property in the trust. A properly funded living trust avoids probate but not estate taxes. A properly set up living trust with certain provisions may avoid estate taxes. Living trusts also do nothing to avoid claims of creditors for the person who creates the trust. That person’s heirs may, however, enjoy some creditor protection if the property remains in trust and the trust has spendthrift features.

You may need a living trust if you are concerned about becoming disabled, if you wish to avoid probate, or if your estate is taxable.

Copyright Notice:  All Rights Reserved Harry Thomas Hackney, P.A. 2007