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