I’ve received several questions about living wills. Living wills are not documents that leave assets and property to your loved ones. Those are “Last Will and Testaments,” or “Revocable Living Trusts.”
In Florida, a living will is an end of life directive document that describes the medical procedures that you would want performed as well as those you wouldn’t want performed if you satisfied the statutory precondition.
You may recall, for example, the Terri Schiavo case. Terri Schiavo was a 26 year old woman who went into an irreversible persistent vegetative state as a result of a 1990 heart attack. She lay unresponsive in a hospital bed for years.
In 1998 her husband petitioned a Florida court to remove her feeding tube. Her parents fought the lawsuit, arguing that Terri was responsive and would not have wanted feeding tubes removed.
The feeding tubes were removed after state and federal court appeals processes at the end of March, 2005. She died shortly thereafter.
Terri Schiavo did not have a living will. A major controversy during her case was whether food and water tubes should be considered life-prolonging measures that can be discontinued once two physicians certified that she was trapped in a persistent vegetative state with no reasonable medical probability of recovering.
A major component of that question lies in what Terri’s intent would have been had she signed a living will. The majority of her case centered on what she would have wanted had she been able to direct.
The living will document, therefore, allows you to direct your medical treatment if you should be dying, and the artificial means would only prolong death rather than save you from dying. The actual language states that you can direct life prolonging procedures to be withheld and withdrawn if you are dying and incapacitated and are in a “terminal condition,” and/or “end-stage condition, and/or “persistent vegetative state.
The threshold is high. It’s not as if someone has cancer, which is a terminal condition, and will die at some point in the future. Under the living will, the patient is usually incapacitated, so can’t speak for him or herself, and death would occur but for life prolonging procedures that are only artificially prolonging the process of dying.
If you are a Florida resident, you should have a Florida compliant living will. You do not need a living will in other states where you have residences if Florida is your primary residence. If anything, having other living wills whose language may conflict with the living will of another state could only cause problems.
Because of comity of law between the states, your Florida living will is valid in all of the states, as well as US territories.
In the Florida living will document, you designate someone to carry out the provisions of the declaration. Typically, this is also the person that you designate in your health care surrogate. I’ll review that document in detail in next week’s column. If the health care surrogate disagrees with the two physicians who declare the patient to have met the living will preconditions, then there could be additional determinations.
The major choice you have in Florida’s document is whether you want food and water withheld and withdrawn. This is usually referring to the feeding tubes. The language in Florida’s living will statute states that the patient (you) should always receive medical procedures or medication to provide comfort, care and to alleviate pain.
Some people don’t want to direct that food and water should be withheld and withdrawn. For those people I remind them that food and water tubes kept Terri Schiavo in a hospital bed for over sixteen years.
You should discuss your intent with those close to you, as well as with your primary physician. The surrogate you name in the document should have similar end of life attitudes that you do, or in the alternative provide you comfort that he or she will follow your wishes.
©2022 Craig R. Hersch of The Sheppard Law Firm. Learn more at floridaestateplanning.com
