Statutory Living Will
LIVING WILL
STATUTORY REFERENCE
ALL REFERENCES ARE TO THE FLORIDA STATUTES
LIVING WILL
(§§ 765.101, 765.104, and 765.301 through 765.309)
An "advance directive" is a witnessed written document
or oral statement in which instructions are given by a principal or in
which the principal's desires are expressed concerning any aspect of the
principal's health care, and includes, but is not limited to, the designation
of a health care surrogate, a living will, or an anatomical gift.
An "end-stage condition" is a condition that is caused by injury,
disease, or illness which has resulted in severe and permanent deterioration,
indicated by incapacity and complete physical dependency, and for which,
to a reasonable degree of medical certainty, treatment of the irreversible
condition would be medically ineffective.
A "health care decision" is:
Informed consent, refusal of consent, or withdrawal of consent to any
and all health care, including life-prolonging procedures.
The decision to apply for private, public, government, or veterans'
benefits to defray the cost of health care.
The right of access to all records of the principal reasonably necessary
for a health care surrogate to make decisions involving health care and
to apply for benefits.
The decision to make an anatomical gift.
"Incapacity" or "incompetent" is when the patient is physically or
mentally unable to communicate a willful and knowing health care decision.
"Informed consent" is consent voluntarily given by a person after
a sufficient explanation and disclosure of the subject matter involved
to enable that person to have a general understanding of the treatment
or procedure and the medically acceptable alternatives, including the substantial
risks and hazards inherent in the proposed treatment or procedures, and
to make a knowing health care decision without coercion or undue influence.
A "life-prolonging procedure" is any medical procedure, treatment,
or intervention, including artificially provided sustenance and hydration,
which sustains, restores, or supplants a spontaneous vital function. The
term does not include the administration of medication or performance of
medical procedure, when such medication or procedure is deemed necessary
to provide comfort care or to alleviate pain.
A "Living will" or "declaration" is:
A witnessed document in writing, voluntarily executed by the principal
in accordance with §765.302; or
A witnessed oral statement made by the principal expressing the principal's
instructions concerning life-prolonging procedures.
A "persistent vegetative state" is a permanent and irreversible condition
of unconsciousness in which there is:
The absence of voluntary action or cognitive behavior of any kind.
An inability to communicate or interact purposefully with the environment.
A "principal" is a competent adult executing an advance directive and
on whose behalf health care decisions are to be made.
A "proxy" is a competent adult who has not been expressly designated
to make health care decisions for a particular incapacitated individual,
but who is authorized pursuant to §765.401 to make health care decisions
for an individual.
A "surrogate" is any competent adult expressly designated by a principal
to make health care decisions on behalf of the principal upon the principal's
incapacity.
A "terminal condition" means a condition caused by injury, disease,
or illness from which there is no reasonable medical probability of recovery
and which, without treatment, can be expected to cause death.
A 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 he or she 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.
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. An attending or treating physician or health care facility
which is so notified must make the living will or a copy thereof a part
of the principal's medical records.
A properly executed living will establishes a rebuttable presumption
of clear and convincing evidence of the principal's wishes.
The statutory form is suggested but is not required.
If a person has made a living will expressing his or her desires
concerning life-prolonging procedures but has not designated a surrogate
to execute his or her wishes concerning life-prolonging procedures or appointed
a health care surrogate, the attending physician should proceed as directed
by the principal in the living will.
Before proceeding in accordance with the principal's living will,
it must be determined that:
The principal does not have a reasonable medical probability of recovering
capacity so that the right could be exercised directly by the principal.
The principal has a terminal condition, has an end-stage condition,
or is in a persistent vegetative state.
Any limitations or conditions expressed orally or in a written declaration
have been carefully considered and satisfied.
In determining whether the patient has a terminal 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 attending or treating physician
and at least one other consulting physician must separately examine the
patient. The findings of each that 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.
An advance directive or designation of a surrogate may be amended
or revoked at any time by a competent principal:
By means of a signed, dated writing;
By means of the physical cancellation or destruction of the advance
directive by the principal or by another in the principal's presence and
at the principal's direction;
By means of an oral expression of intent to amend or revoke; or
By means of a subsequently executed advance directive that is materially
different from a previously executed advance directive.
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