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Living Wills in Florida - Coronavirus Considerations

Living Wills in  Florida - Coronavirus Considerations
Estate Planning and Probate
Jason Neufeld
April 16, 2020

Living Wills are discussed in Florida Statutes, Section 765.301. Section 765.303 provides a suggested form that indicates that you do not want your death to be artificially prolonged under certain circumstances.

Living Wills can be signed in front of two witnesses, one witness cannot be a spouse or blood relative. Fla. Stat. 765.302.

Florida Living Will Outline

A living will provides that, if you are:

(1) incapacitated (unable to communicate a willful and knowing healthcare decision) AND

(2) have:

·        a terminal condition (injury/disease/illness no reasonably likelihood of recovery and expected to result in death without further medical intervention); and/or

·        an end-stage condition (an irreversible condition for which treatment would be ineffective); and/or

·        are in a persistent unconscious or vegetative state;AND

(3) If your treating physician and at least one other consulting physician both agree that there is no reasonable likelihood of recovering from the condition, then

You instruct that life-prolonging procedures be withheld or withdrawn when the application of such procedures only serves to artificially prolong the process of dying.

Life prolonging procedures can be described specifically or broadly. Broadly speaking, a “life-prolonging procedure” is defined as any medical procedure, treatment or intervention, which supplants a spontaneous vital function.

You are instructing medical personnel to let you die naturally, with the allowance for any medications or artificial procedures that would lessen your pain or otherwise provide you with comfort.

How Does the Health Care Surrogate Interact with my Living Will?

Your health care surrogate can be empowered to oversee this process, essentially consent to the withdrawal of life-support.

If there is no health care surrogate designated, then the physician can take the living will at face value. But before withdrawing life support, the physician must believe that the patient has no reasonable medical probability of recovering capacity, so that the patient can make their own decision – and that the patient had not previously, orally, or in writing,expressed any conditions to the withdrawal of life-support treatments.

Free Living Will Form in Florida

There are many free living will forms that are perfectly legal and valid circulating the internet, given by doctor’s offices, and hospitals (you can email me and I’d be happy to email you the generic free living will form in Florida).

If I am being engaged to handle any kind of basic estate plan, I utilize a much more comprehensive living will document. Its worth a discussion to talk through and specifically define what constitutes a “life-prolonging procedure” as the standard free Florida living will form is rather vague. You may want the administration of certain life-prolonging procedures and not others. Consider whether you would want to be subject to the following:

  • Major or minor surgical procedures;
  • forced tube feeding of nutrition(if so, for how long would you would want to be fed in this manner);
  • forced hydration; chemotherapy, mechanical treatments, drug treatments, chemical treatments, CPR, electric defibrillator,
  • mechanical breathing / ventilator(if so, consider in what circumstances and for how long you would want to be on a ventilator),
  • kidney dialysis (for how long might you want your waste removed from your blood),
  • invasive diagnostic testing, including flex tubes to look into your stomach, blood transfusions,
  • antibiotics (if near the end of life, would you want infections to be treated aggressively, or would you prefer the infection to naturally run its course?),
  • diagnostic tests, x-rays.
  • Do you want to authorize your health care surrogate to order DNR – do not resuscitate orders in your file?

Old estate planning documents in general (over 10 years old)can be viewed as stale. While still legally binding, 3rd parties maybe more reluctant to rely on them (especially when it comes to healthcare advanced directives and powers of attorney).

The Living Will and Coronavirus

This article was written in the midst of the Coronavirus / COVID-19 quarantine madness.

As a result, health care surrogates may not be able to sign documents or communicate healthcare decisions in person. Accordingly, you may want your Health Care Surrogate and Living Will to expressly authorize healthcare surrogates to give medical directions over the phone, through Skype, Facetime or Zoom and hold medical providers harmless for relying on these non-in-person modes of communication.

The primary impact of Coronavirus, for those that contract it in its more serious form, is that it causes pneumonia and serious lung damage. Thus, your estate planning attorney or elder law attorney ought to address this specific form of artificial life sustaining treatment: Do you want to be intubated and placed on a ventilator (insertion of an endo-tracheal tube through the trachea to commence artificial breathing for a patient who cannot do so on their own).

Most standard living wills and instructions to health-care surrogates prohibit intubation. If you contract COVID-19, and this instruction was followed, it could lead to disastrous results.

Is the Living Will Relevant to a Coronavirus Patient? 

Strictly speaking, especially for those that are young that contract severe breathing difficulties due to Coronavirus, we would not expect them to be considered to be in a terminal or end stage condition (unless doctors truly believe you have no hope of recovering). But because there is a shortage of ventilators / respirators, if your living will says absolutely no ventilators or intubation, I fear that you’d be less likely to receive that potentially life-saving treatment. We honestly just don’t know how medical professionals are going to interpret advanced directives, such as living wills, during a pandemic when ventilators are being rationed.

We are addressing this fear on our documents by including language that substantially says the following: 

In the event that it has been determined or believed that COVID-19 is the cause of my physical or mental decline, I request that I shall be placed on a ventilator or related device until such time that a determination has been made that I have improved and such device is no longer needed - or a medical determination has been made, and my healthcare surrogate agrees, that I will not improve or survive the illness. I further request that all on or off-label medications, experimental medications, intubations, or any other therapy, treatment or effort, deemed medically prudent also be provided an utilized in an attempt to resolve my condition brought on by the Coronavirus.  

To discuss any incapacity planning, estate planning, or Medicaid planning matter in Florida, please schedule a consultation today.

Jason Neufeld

Jason Neufeld is the Founder and Managing Partner of Elder Needs Law, a Florida estate planning and elder law firm he created in 2017. With more than 15 years of experience practicing law, he represents clients in a wide range of legal matters, including Medicaid planning, estate planning, elder law, probate, Medicare, and life insurance.

Jason received his Juris Doctor from the University of Miami — School of Law and is a member of the Florida Bar and the Broward County Bar Association. He has received numerous accolades for his work, including being named a Rising Star and Super Lawyer by Super Lawyers and among the Florida Legal Elite by Florida Trend in 2024.

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