Living Wills
Portia B. Scott, J.D., L.L.M. • August 1, 2022

Living Wills: One of Florida’s Available Advance Directives

Florida Statutes specifically authorizes a person to execute a Living Will.  Interestingly, the Living Will Statute is under the general sections of law regarding Civil Rights. This implies very, very strongly that the right to have a Living Will is a Civil Right held by Florida resident. But, before we get to that, What Is A Living Will anyway?

 

Briefly, a Living Will is a declaration by a person (reasonably, though not particularly imaginatively called “the declarant”) indicating ahead of time what his or her wishes would be under certain specifically stated situations in the event he or she is not able to express those wishes when the time comes. The Living Will creates a rebuttable presumption to the clear and convincing legal standard of the declarant’s wishes and direction. (Okay, maybe that wasn’t so brief.)

 

What conditions? Well, end of life conditions are generally the ones we are talking about here. So, if the patient has a terminal condition, an end-stage condition, is in a “persistent vegetative state” or if recovery is unlikely, these are conditions which must be determined by the patient’s primary doctor and another doctor. 

 

Let’s use the example of a terminal condition. The patient is non-communicative and dying of cancer, all treatment options have been exhausted. The death is soon, possibly in the next few days or even hours. Those doctors each examine the patient and come to the same conclusion: death is near. This is a medical determination of one of the conditions which can trigger the use of the Living Will.

 

Now, on top of the poor patient being at death’s door, he develops appendicitis and they need to come out, immediately.

 

Knowing there is a Living Will, before the surgery commences which will not save the patient’s life from the cancer killing him, the doctors look to the Living Will. In it, the doctor sees a clear, unambiguous statement contemplating this scenario. The declarant thought about it and opted to skip the appendectomy and just asked for pain relief. 

 

Likewise, other unpleasant circumstances can arise and be dealt with as well. Further, the patient, through the Living Will, may opt to have a feeding tube removed and other changes from on-going care, once the determination has been made.

 
Unlike a Medical Power of Attorney, which authorizes someone else to make decisions for the declarant, a Living Will is the declarant’s own decision, just pre-made. (Also, a Medical “POA” usually empowers another person not only end of life decisions but also other areas of medical care.)

 

The beauty of a Living Will is that the patient/declarant has the opportunity to consider his or her wishes before the emergency is at hand and, additionally, provides the patient’s loved ones with a roadmap as to what the patient would want, if he or she could speak. The Living Will represents the cool-headed decisions of the declarant.

 

Importantly, assuming the patient is in his or her right mind and capable of making decisions otherwise (that is, not in a coma), the patient can change her mind and opt for “heroic” measures to be taken to save her life. She can change her mind, if she wants.

 

Living Wills are a very useful tool and one of the regular documents created for those of us contemplating our own path. They are especially helpful if the declarant has not appointed a Health Care Surrogate or Proxy - but that is another article.

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And furthermore....

By Portia B. Scott, J.D.,L.L.M. • April 2, 2026
Another Warning from our Appellate Court Regarding Al I hate to repeat myself, but.... The March 25, 2026 release of written opinions from our own Fourth District Court of Appeal (4th DCA) has another warning to persons venturing into the Court system. As you may know, I wrote about a warning from the 4th DCA about a self- represented Appellant (person seeking to have the trial court's decision overturned) using Al and the possible, but not inflicted, sanctions which could have resulted. Now, again, in Gouveia v. Meridian Financial Investments, LLC, the 4th DCA has again written to address this increasingly abusive use of Al in the Courts. In this more recent case, there was a contract dispute and the trial court ruled in favor of the Plaintiff (the party making the complaint...get it? "Plaint-iff" based on "Com-Plaint?"). The losing side filed an appeal, asking for the 4th DCA to overturn the decision of the trial court. Well, that went nowhere and the Plaintiff kept its win. The story here is that the person who lost at trial and on appeal, in his case and appeal to the 4th DCA apparently used Al to help write his argument. The Al manufactured ("hallucinated") prior cases which did not exist or, if they did exist, did not stand for what the person said it did. It would be as if the person made reference to Roe v. Wade (a case which does exist) and told the appeals court that it stood for the legal principal that a Jack of Spades has a higher value in poker than the King of Spades (which is absolutely not what Roe v. Wade said). Is that straight-up nonsense? Yes and as absurd as that which was submitted to the appeals court as if it were true. The Court issued another warning about the possibilities of sanctions if it is done again by the person submitting it, just like before. But, as the concurring opinion in this case points out something else (a "concurring opinion" is a written opinion which agrees with the actual opinion but has more to say). The concurring opinion points out how meaningless it is to threaten sanctions against someone who will most likely not be before the Court again. That means that the opportunity to misbehave for this person is greatly reduced. Most self-represented folks only appear once -if at all- before the appellate court. The concurring opinion said that with attorneys, it is not a problem as sanctions will work against us, seeing how we are in court so often. What is the solution? The writer of the concurring opinion doesn't know but suggests some pro-active steps. (Sanctions are, by their very nature, reactive - they are issued in response to something done.) Perhaps forcing sworn statements from the parties that they have not used Al or, if they have, exactly what the Al included; that the party submitting the Al- generated document has double-checked the sources. Something which can help us all work with the rising tide of Al, Chatbots, LLM tools.  Stay tuned!

Appellate Court Issues Warning to Non-Attorneys Filing Appeals

By Portia B. Scott, J.D.,L.L.M. • March 26, 2026
The Florida trial courts' decisions are subject to appeal to a higher Court. This happens when a litigant (the Plaintiff or Defendant) believes the trial court made a mistake and that the mistake should be corrected. The mistake believed to have been made by the trial court can be based in the facts of the case ("that is not what the evidence showed"), the law ("that is not what the statute or other source of law says"), or both. A recent opinion from the 4th District Court of Appeal (which takes such claimed mistakes from the circuit trial courts in Broward, Palm Beach, Martin, St. Lucie, Indian River and Okeechobee Counties) dealt with an alleged mistake of law. The person who was claiming the mistake (the Appellant), was representing herself. Without an attorney to help her write the appeal, she resorted to Artificial Intelligence ("AI"), as we can expect many people do or might start doing. The decision came back from the 4th District Court of Appeal, disagreeing with her; the appeals court found no error by the trial court. But for the use of Al, there probably would not have been any thing actually written. The 4th would have just said something like, "we find no error." However, the Al tool had "hallucinated" what other, prior District Courts' had said. In the paperwork submitted by the Appellant, she had cited certain old cases saying that these cases were opposite of what the trial court had ruled. She claimed that the trial court had used the wrong law and that she should have won. The problem, as you might have guessed, is that the cases did not exist - some of them not at all. Other cases she cited to the 4th were actual cases, but did not say what her Al asserted they said. Here is the reason everyone needs to know this: Self-represented litigants are held to the same standards as an attorney. Obviously, attorneys are not allowed to make up old cases and present them to a Court (trial or otherwise). If we do use Al to help find the old cases, we absolutely have to check to make sure that they are real and do exist. If we do not, we can be sanctioned - maybe even having to pay the other side's attorney's fees which, for an appeal, can easily be in the tens of thousands of dollars! That is a scary prospect. The self-represented litigant could have faced sanctions - just like her attorney would have had she had one. In this particular case (Roussell v. Bank of New York Mellon, Etc., decided March 11, 2026), the appellate court did NOT sanction her, but easily could have. This was probably a decision issued as a warning to all.