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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