Living Wills and End of Life Care

One of the ‘standard’ estate planning documents I frequently draw up is a “Living Will”. Sometimes people confuse this with other documents; sometimes they will think this is a Living Trust or a Will that disposes of property after your death; it isn’t that. Sometimes people will think that this a Health Care Proxy or Health Care Surrogacy that names someone to make medical decisions if you can’t. While there are some combined Health Care Surrogacies and Living Wills that can do this, a plain vanilla Living Will essentially states that if you are dying or in an end stage condition or vegetative state (i.e., no brain activity) and two doctors agree that you are in such a state, that you do or do not want life prolonging procedures and/or nutrition and hydration, but only such care as to relieve pain and to make you comfortable. Florida’s Living Will statute appears below; note that while it does name an individual to carry out your wishes, this particular form is limited only to the wishes “regarding the withholding, withdrawal, or continuation of life-prolonging procedures”, it does not authorize them to necessarily make decisions regarding broader medical decisions; if you want someone to be able to make broader decisions regarding your medical treatment, you should have a health care surrogacy or a health care proxy.

Florida’s statutes on Living Wills:
765.302 Procedure for making a living will; notice to physician.—
(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 attending or treating 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. An attending or treating 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.

765.303 Suggested form of a living will.—
(1) A living will may, BUT NEED NOT, be in the following form:
Living Will
Declaration made this day of , (year) , I, , willfully and voluntarily make known my desire that my dying not be artificially prolonged under the circumstances set forth below, and I do hereby declare that, if at any time I am incapacitated and
(initial) I have a terminal condition
or (initial) I have an end-stage condition
or (initial) I am in a persistent vegetative state
and if my attending or treating physician and another consulting physician have determined that there is no reasonable medical probability of my recovery from such condition, I direct that life-prolonging procedures be withheld or withdrawn when the application of such procedures would serve only to prolong artificially the process of dying, and that I be permitted to die naturally with only the administration of medication or the performance of any medical procedure deemed necessary to provide me with comfort care or to alleviate pain.
It is my intention that this declaration be honored by my family and physician as the final expression of my legal right to refuse medical or surgical treatment and to accept the consequences for such refusal.
In the event that I have been determined to be unable to provide express and informed consent regarding the withholding, withdrawal, or continuation of life-prolonging procedures, I wish to designate, as my surrogate to carry out the provisions of this declaration:
Zip Code:
I understand the full import of this declaration, and I am emotionally and mentally competent to make this declaration.
Additional Instructions (optional):


(2) The principal’s failure to designate a surrogate shall not invalidate the living will.

Now, understand the following points;
First, no one has to sign one of these documents; if you are uncomfortable doing this, talk to your physician, your family, but ultimately, this is your life and your decision. No one can require you to sign this as a condition of anything.

Second: I, personally use a somewhat different form; and there are lots of other forms out there; but you need to be happy with the form; if you are not happy with what the form expresses, don’t sign it; if you want it changed, then contact a lawyer and have the lawyer draw up a document that reflects your wishes. I’ve had clients say they were comfortable with having surgery withdrawn but not having hydration and nutrition (food and water) withdrawn; and I’ve also had a few clients tell me that they were not going to go easy; that they wanted all available medical procedures to be used. And I’ve drawn up such documents. Once again, this is your life and this is your decision.

Third; I am a Catholic. There are a number of “Catholic” living will forms out there. I am not a priest but if you are a Catholic and want a living will that is in accordance with Catholic teachings, you might want to talk to a priest or someone who is knowledgeable about the current thoughts of the Catholic Church on living wills. Not to be mysterious but there were various Catholic Living Wills that were in use in the 1990’s and early 2000’s that may not conform with current Catholic teachings.

The problem with the older versions is, in 2004 then Pope John Paul II issued a statement that very generally prohibited withdrawal of food and water under most circumstances; this called into question some older “Catholic” living wills that had broader language allowing withdrawal of food and water. To emphasize, I am not a priest, and I am not a Catholic theologian, and currently there are Catholic Living Wills that are approved by, for instance, the Florida Council of Bishops. I would assume that a living will that is currently approved by the Bishops complies with current Catholic teachings; just be aware that some of the older forms may not conform with current teachings.

If you’re a Catholic and have a question about living wills, talk to your priest. Or talk to an attorney who is at least familiar with the issues. One possible solution is to forego a living will per se but grant authority to make these sorts of decisions to a health care surrogate; someone that you trust, someone who will be able to take into account all of the facts and make an appropriate decision at the time based on those facts. The downside of this is, of course, that you are putting a burden on another person to make this decision.

If you have a question regarding living wills, health care surrogacies, health care proxies or advance directives in or around The Villages, Florida, feel free to contact my office.

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