The Definition of a Living Will

The legal definition and summary of a Living Will is that it serves as a written declaration that outlines an individual’s directives in the event that the individual is incapacitated or unable to provide informed consent or refusal for medical treatment concerning life support, such as mechanical ventilation, feeding tubes and the like. The Mayo Clinic summarizes the details of the varying types of Living Wills and Advanced Directives here.

The Timelines of a Living Will 

Once a Living Will is created, whether part of a larger estate plan or not, it is effective from the day it is signed and executed as it becomes a legally binding document.  A large majority of people who have Living Wills are seniors but adults of all ages should have a Living Will as anyone, at any time, could become seriously ill or injured. 

Having a Living Will makes your specific preferences and wishes known for your family or spouse should the unthinkable happen. Every few years, review and update your Living Will as necessary.  You can make changes but those changes should be made formally, with the help of an attorney.

Why Do You Need A Living Will?

A legally drafted Living Will protects your interests and desires for life support-related medical care.  When scenarios arise that require them, it is most likely that your loved ones are under duress.  Making difficult decisions during those times can be very stressful.  Having a Living Will helps to mitigate some of the anxiety around decision-making because many of those decisions have already been laid out in a single document.

Without a written Living Will, doctors, hospitals, or health care clinics may refuse to honor your wishes.  If you have a Living Will, they are much more likely to honor your wishes, and if they don’t, then your appointed surrogate can challenge that doctor, hospital, or clinic, and, if necessary, take them to court to force them to comply with your wishes.

What Happens If There Isn’t a Living Will?

If there isn’t a Living Will drawn up and a critical situation occurs where emergency or life-altering decisions need to be made and made quickly,  those decisions may fall into the hands of health care professionals. Family members, husbands/wives, and other loved ones may not be able to step in and make these decisions in a time of crisis, even when aware of an individual’s wishes because there is no formal, legal document on record.

The Parties Involved in Drafting and Executing a Living Will in The State of Florida

Under Florida law, a Living Will must be signed by an individual who has requested it in the presence of two witnesses. Other parties typically involved with the execution of a Living Will are the attorney responsible for drafting the document, and the notary.

A medical advocate or "surrogate" is listed within the Living Will as the person who is designated to carry out the wishes listed should the time come where that is necessary. However, this person does not need to be in attendance at the time of the Living Will’s execution. The only requirement is that they are 18 years of age or older and legally competent to act on your behalf. In many cases, a backup surrogate is also chosen to take account of the possibility that the primary surrogate listed may be unable to perform their duties.

A DNR Defined

A DNR order is a medical order written by a doctor on an individual’s behalf that instructs health care providers including EMTs and paramedics not to engage in life-saving measures. This includes cardiopulmonary resuscitation (CPR), which is used when a person is either unable to breathe or their heart stops.

What Parties are Involved in Drafting and Executing a DNR in the State of Florida?

Under Florida Law and The Florida Department of Health, a DNR must be signed by the patient, and signed off by a patient’s primary care physician, and placed in the patient’s medical records and history.  Attorneys do not typically draft DNR orders.

A DNR differs from a Living Will in that it specifically states that no resuscitation measures should be taken if a person’s heartbeat or breathing ceases whereas a Living Will stipulates a person’s wishes regarding life support measures if they are no longer able to make those decisions for themselves.

Can You Request Both a Living Will and DNR Be Drafted and Executed?

Yes, you can request both a Living Will (legal document) and a DNR (if applicable to your situation). Both protect the interests of the individual should they not have the ability to make decisions or choose medical options for themselves. These documents lessen the burden and outline detailed instructions for procedures or end-of-life care for your loved ones to follow.

Conclusion

A Living Will is a necessary document to have on hand while you are still relatively healthy, and will be very helpful to your loved ones if you're ever faced with a life-threatening medical situation down the road. Some parties opt to request both a DNR and a Living Will, however, there are significant differences between the two documents, and while a Living Will is necessary for everyone to have, a DNR is really only applicable to certain people in certain health situations. 

Sources

• https://www.floridahealth.gov/about/patient-rights-and-safety/do-not-resuscitate/_documents/dnro-updated-form-bw.pdf
• https://www.floridahealth.gov/about/patient-rights-and-safety/do-not-resuscitate/faq-page.html
• https://www.mayoclinic.org/healthy-lifestyle/consumer-health/in-depth/living-wills/art-20046303#:~:text=A%20living%20will%20is%20a,wishes%2C%20think%20about%20your%20values

"The information provided herein is simply a brief overview of the Florida law on this particular matter. It should not be relied upon for legal purposes, as the facts and circumstances to any specific legal matter may vary substantially from the limited explanation and application of often complicated legal rules and principles that may be addressed herein, or applicable in your particular legal matter. You should only rely upon legal advice provided to you by a licensed attorney who has had an opportunity to fully evaluate your particular legal matter".