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Florida Advance Directives In The Time Of COVID-19


For the majority of people in the United States, it has been roughly one year since the beginning of COVID-19 quarantine and containment measures. While there is a strong push among some circles to return to normalcy, it cannot be denied that the pandemic has fundamentally altered our society, especially in the way we view death. This has led to an increased interest in estate planning, with a particular focus on advance directives, which are documents setting out the executor’s wishes in the event they become incapacitated.

Living Wills

There are three major types of advance directives, all having to do with choices regarding your medical treatment: living wills, healthcare surrogate designations (HSDs), and anatomical gift elections. While anatomical gift elections are rarely challenged, both living wills and HSDs can sometimes encounter resistance from medical professionals or from family members or others who care for you. While it is not always possible to draft your estate plans in a manner that anticipates all possible opposition, it is possible to make your living will as specific and clear-cut as possible, so as to at least eliminate mistakes.

Living wills must be in writing, signed by the principal (the person whose care is discussed in the living will) in the presence of two witnesses, one of whom must not be related to the principal – just like with a standard last will and testament. If a living will is properly executed, it also creates a rebuttable presumption of ‘clear and convincing evidence’ of the principal’s intentions – in other words, if a person’s living will is valid, it is presumed that the living will is a clear statement of what the principal wants (though someone else can argue against that presumption), and should thus be honored.

Healthcare Surrogate Designations

Healthcare surrogate designations, also sometimes referred to as medical powers of attorney, are the other type of advance directive that is challenged most often, most commonly by family members or spouses who are in dispute over the direction of a loved one’s care. An HSD is a document in which a person chooses a ‘surrogate’ to make medical decisions on their behalf if they ever become incapacitated or otherwise unable to communicate their own wishes. Sometimes, HSDs are worded so as to require a finding of incapacity from a physician, but this is not strictly necessary and is becoming less common.

In theory, anyone who is a ‘mentally competent adult’ can serve as a healthcare surrogate, with the only real caveat being that they cannot have also witnessed the document naming them as the surrogate. Like with most other estate planning documents, HSDs do require two witnesses at their execution, with one of them being unrelated to the principal. It is worth noting that if you do not have any healthcare surrogate designated in a situation where you are unable to communicate your wishes, generally a family member or your physician will be nominated to act for you – thus, it makes sense to simply choose for yourself ahead of time.

Contact A Naples Estate Planning Attorney

If you have questions, concerns or just want to set up a complimentary consultation to discuss your personal legal issues in a confidential setting, contact James R. Nici, the Managing Partner of Nici Law Firm, a Naples estate planning attorney with almost 30 years of legal experience.  This may be the first step toward ensuring all is how you want it to be going forward. Contact our offices today via our website, or on the telephone at 239-449-6150, to schedule your complimentary consultation.


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