Living Wills in Florida

Family members often struggle with end-of-life decisions regarding a loved one. The decision to take a family member off life support can haunt someone for the rest of his or her life. Fortunately, there is an estate planning tool that families can utilize to help obliviate some of the stress and uncertainty associated with making end-of-life decisions for a family member.

What Is a Living Will and What Does It Do?

A living will is a legal document that sets out one’s end-of-life wishes. Specifically, a living will addresses the use of life support and other treatments at the end of one’s life or in the event of a serious accident or debilitating medical condition.

In Florida, living wills are governed by Chapter 765, Healthcare Directives, of the Florida Statutes. Florida Statute § 765.101 (13) defines a living will as follows:

(13) “Living will” or “declaration” means:

(a) A witnessed document in writing, voluntarily executed by the principal in accordance with s. 765.302; or

(b) A witnessed oral statement made by the principal expressing the principal’s instructions concerning life-prolonging procedures.

Pursuant to Florida Statute § 765.302 (3), once executed, a living will establishes a rebuttable presumption of clear and convincing evidence of one’s wishes regarding end-of-life medical treatment.

When Does a Living Will Apply?

Pursuant to Florida Statute § 765.306(2), before one’s directives in a living will are carried through, it must be determined that:

(a) One does not have a reasonable medical probability of recovering capacity to a level that he or she can make medical decisions directly.

(b) One has a terminal condition, has an end-stage condition, or is in a persistent vegetative state.

(c) Any limitations or conditions expressed orally or in a written declaration have been carefully considered and satisfied.

In determining whether one has a terminal medical condition, has an end-stage condition, or is in a persistent vegetative state or may recover capacity, or whether a medical condition or limitation referred to in an advance directive exists, the patient’s primary physician and at least one other consulting physician must separately examine the patient. The findings of each such examination must be documented in the patient’s medical record and signed by each examining physician before life-prolonging procedures may be withheld or withdrawn. See Florida Statute § 765.306.

What Happens If You Don’t Have a Living Will?

In the absence of a living will, Florida Statute § 765.401 sets out who can make healthcare decisions on one’s behalf under the circumstances where a living will would otherwise apply. These people are listed below in order of priority:

  • A judicially appointed guardian or guardian advocate;
  • Your spouse;
  • An adult child or, if there is more than one child, the majority of your adult children;
  • Your parent;
  • An adult sibling, or a majority of the adult siblings;
  • An adult relative who has shown special care or concern and who has maintained regular contact;
  • A close friend; or
  • A clinical social worker.

How Can I Create a Living Will?

Florida Statute § 765.302 allows any competent individual to create a living will. A living will must be signed by the principal in the presence of two subscribing witnesses, one of whom is neither a spouse nor a blood relative of the principal. If the principal is physically unable to sign the living will, one of the witnesses must subscribe the principal’s signature in the principal’s presence and at the principal’s direction.

One must be a competent adult to create a living will. That means that one may not be able to create a living will while he or she is in the hospital after an accident or while treating a medical condition. It is better to create a living will now, while you are healthy.

Why Are You Waiting to Create a Living Will?

It’s human nature not to want to discuss your own mortality. That is why so many people put off creating their wills or even update their estate plan. However, delaying this type of planning can result in a loved one making the decision to end your life. Despite the benefits of having living wills, only about one-third of Americans will use this estate planning tool.

Preparing this document is relatively straightforward and inexpensive.’s experienced attorneys can help you prepare a customized living will for as little as $300.00.