One question that we hear from clients is that they want a living will definition. They have heard the term used and know that a living will can be a vital part of the estate planning process, but they don’t exactly know how a living will fits into the estate planning puzzle.
Living Will Definition
History:
Living will is a term defined under Florida Statutes, Chapter 765.101, which has a statutory history dating back to 1992. Not long thereafter, starting in 1983, you start to see appellate cases which help to provide additional guidance regarding the interpretation of the statute of living will definitions.
The most famous case that I can think of, which also illustrates the need for a written living will, is the case of Terri Schiavo. This case, which obtained national media attention, involved a young women who lived in St. Petersburg, Florida and suffered cardiac arrest in 1990 Ms. Schaivo’s condition deteriorated and she was diagnoses to be in a persistent vegetative state. There was disagreement among members of her family on whether she would ever come out of the vegetative state and as to what her wishes for medical treatment were given the circumstances. A lawsuit was filed to decide whether or not to continue artificial life support, wherein a judge weighted the competing testimony of 18 witnesses and ruled that Ms. Schaivo had desired to have her feeding tube removed. However, there were a number of appeals, laws passed, and political capital expended in an effort to save Ms. Shaivo from the removal of her feeding tube Nevertheless, eventually the life support was removed and she passed away soon thereafter. This case, perhaps better than any other highlights the need to have a living will in writing. A valid living will would have created a rebuttable presumption of the wishes of Ms. Shaivo to either continue or discontinue life support. It would have significantly reduced the cost, time, and heart ache absorbed by her family and friends and simultaneous provided all involved with the knowledge of Ms. Shaivo’s intent with respect to life support.
Statutory Definition:
F.S. 765, which concerns Health Care Directives, provides definitions to the terms used under that Chapter of the law. Specifically, F.S. 765.101(13) provides the living will definition:
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.
Now, I know what you are thinking: you went to law school, not me, is there any chance that you can give me the living will definition in plain English? So let me break the statute down to make it easier to digest.
I. Requirements regardless of whether a written will is oral or written:
First, a living will, in order to be valid in Florida, must be witnessed. Which, if you read in conjunction with F.S. 765.302, means two witnesses are necessary.
Next, because F.S. 765.101(13) part A allows for a living will to be in writing and part B allows for an oral statement, we know that either are allowable if the remaining provisions of the statute are complied with. However, as an aside and practice pointer, I would strongly recommend that the living will be in writing. Is it possible to prove intentions via a witnessed oral statement, yes. Could that be a very expensive and time-consuming undertaking when a family is struggling with a loved one whose health has deteriorated, also yes.
This is where the statute provides a divergence between the written living will and the oral written will, so I will deal with them separately.
(a) Additional requirements for written living will:
That it be voluntarily executed. Thus, a living will executed under duress, coercion, or lack of capacity could lend itself to legal challenges.
Further, it must comply with F.S. 765.305, which provides:
(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. 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.
(2) It is the responsibility of the principal to provide for notification to her or his primary physician that the living will has been made. In the event the principal is physically or mentally incapacitated at the time the principal is admitted to a health care facility, any other person may notify the physician or health care facility of the existence of the living will. A primary physician or health care facility which is so notified shall promptly make the living will or a copy thereof a part of the principal’s medical records.
(3) A living will, executed pursuant to this section, establishes a rebuttable presumption of clear and convincing evidence of the principal’s wishes.
(b) Additional requirements for oral living will:
The oral requirements for a living will are much simpler than the written requirements. A written will must simply express the person who made the statement’s instructions concerning life-prolonging procedures. Stated another way, Aunt Sally told family and friends at thanksgiving dinner that if anything ever happened to her and she was in a vegetative state, she does not wish for her life to be prolonged through life sustaining medical care.
Living Will Definition Final Thoughts:
In short, a living will is a document or oral statement which gives direction on whether to provide, withhold, or withdraw life-prolonging procedures in the event that that the person making the statement has a terminal condition, end-state condition, or is in a persistent vegetative state. In order to be valid in the state of Florida, a living will must also comply with the underlying legal requirements of F.S. Chapter 765.
If you are interesting in having an attorney draft a living will on your behalf, please do not hesitate to contact my office. Sometimes clients prefer the flexibility and versatility that a health care designation may offer over a living will, sometimes clients want both documents. Regardless of which you prefer, when you discuss with your attorney, make sure that you do not forget to update your will and power of attorney to ensure that your basic estate plan is in place.
