Incapacity planning documents


Living Wills

The purpose of a Living Will is to provide for our client's wishes in a health crisis/end of life situation. Living wills must be very specific, as Florida statutes do not provide definitions. We, therefore, use customized language to define when what, what type of hydration and nutrition, religious restrictions, instructions on the use of pain management and palliative care. The goal is to provide as much control to our elder-law client as possible, to be able to communicate their wishes for as long as possible. But when this is no longer possible, the living will provides instruction to substitute for our own judgment.

The Living Will should name a Health-Care Surrogate to enforce these issues and wishes set forth in the Living Will.

Health Care Surrogate Designations

Designating a health care surrogate involves naming the person(s) who are empowered to make health-care decisions in case of your incapacity. Below are some common health care surrogate questions:

        •    What if my health care surrogate is out of town or unavailable when I need him/her? If it makes sense for the family, there is good reason to appoint two co-health care surrogates: Either of which has authority to act. There are certain issues involved with disputes in a co-health-care-surrogate situation. To control for this potential difficulty, we need to make it clear to the hospital that whoever gives the first instruction is the controlling health-care surrogate. For snowbirds, this can be an especially useful tool (i.e. client lives in New York and in Florida depending on the month. We can then name one health care surrogate who lives in New York and another who lives in Florida). The reasoning behind this is: certain decisions often cannot wait for a single surrogate to hop on a plane, if mom is in Florida when she becomes incapacitated, the Florida health care surrogate ought to be able to make decisions.

       •    Health Care Advanced Directive / Surrogate enforceability - in Florida, if a doctor is unwilling to comply with their patient's wishes, as set forth in Health Care Advanced Directives, that doctor must transfer to physician or facility that will comply within 24 hours.

       •    Health care proxy. This isn’t a document but bears discussing here. If no surrogate is previously named, a proxy is appointed by operation of law (not by the court). E.g. a court-appointed guardian with health care powers has first priority. Spouse has second top priority. The family is higher priority (see list in statute of order of priority). Health care proxy is less desirable than a health care surrogate because the proxy does not have the benefit of a Living Will (which serves as prima facie evidence of what the principal would have wanted), and is thus easier to challenge.

Health Care Power of Attorney

A health care power of attorney gives the holder of the power of attorney greater enforcement rights than just a simply health-care surrogate designation. Read more about powers of attorney here.

Do Not Resuscitate Order (DNR or DNRO)

DNR refers to a doctor's order (state form through Department of Health) that is issued with consultation with patient/client. You can refer to this in a Living Will. Read my article describing Do Not Resuscitate Orders in Florida in further details by clicking on the link.


POLST stands for Physician's Order for Life-Saving Treatment. This is doctor's order done in consultation with patient/client


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