What is an Advance Directive?

An estate plan is typically seen as a way to prepare for what happens to your assets and your property after you pass away. As important as this is, there is more to estate planning than simply deciding who gets what. Other estate planning instruments are designed to come into effect while you are still alive, to ensure that your wishes are respected even if you are not in a position to articulate them.

These instruments fall into a category known as ‘advance directives’. There are two main types of advance directives: Health care surrogacy documents and a living will. Though, beyond that, some people also want to add supplemental documents, such as a Do Not Resuscitate Order. Below, our Naples estate planning lawyer provides a more comprehensive overview of advance directives in Florida.

An Overview of Advance Directives in Florida 

1. Appoint a Health Care Surrogate
   

Every legally competent adult has the right to make decisions about their own health and well-being, including the right to accept or refuse medical treatment. However, if you are incapacitated and are unable to make your wishes known, it can lead to serious problems, especially if you do not have family or friends close at hand. Having an advance directive will prevent your wishes from being ignored. The document allows you to name what is called a health care surrogate – that person is legally allowed to convey your wishes and/or make medical decisions on your behalf if you cannot do it yourself.  A health care surrogate can speak only about health care decisions, and nothing else. Ensuring that your medical treatment is conducted in the way you prefer is your right, and an advance directive can protect that. 

2. Create a Living Will
   

Beyond appointing a trusted person as your health care surrogate, you may also want to create a living will. Put simply, a living will is an estate planning document through which you can express the types of medical care that you do (or do not) want to receive, should you become incapacitated with no reasonable medical probability of recovery. Indeed, through a living will, you can give specific, legally enforceable instructions for your end-of-life care. The core value of a living will is that it allows you to do this when you are known to be of sound-mind, thereby ensuring that your wishes are respected should you become incapacitated or otherwise unable to make your decisions.

Through a living will, you can get quite specific. You may want to give detailed instructions regarding intubation, dialysis, medication, or another type of treatment. Alternatively, a living will can also be relatively broad—perhaps stating your desire for palliative care over curative care or expressing your wish for a focus on pain management. In order to be enforceable in Florida, a living will must meet certain legal requirements. It is highly recommended that you work with an experienced Naples, FL estate planning lawyer who can help you craft a professional, reliable living will. 

3. Consider Do Not Resuscitate Order (DNR) 

Not to be confused with a living will, a Do-Not-Resuscitate (DNR) is a type of medical directive that allows you to express your wishes regarding certain forms of life-saving treatment. The primary purpose of a DNR is to state that you are not interested in receiving CPR or intubation as part of your end-of-life care. They may also discuss issues that crop up after your passing, such as your preferences for disposition of your remains, including organ donation. All parts of an advance directive are designed to make sure your wishes are known and given every opportunity to govern the way your situation is handled. Generally speaking, a DNR is not comprehensive and if you have more in-depth wishes regarding your late-stage medical care, it is highly recommended that you draft a living will. Relying solely on a DNR can cause major problems. 

The Importance of Professionally Prepared Advance Directives 

If you choose to execute an advance directive or have an attorney author one for you, you should be aware that two witnesses are required, and at least one must be someone who is neither your spouse or related to you by blood. If this requirement is not met, the document may later be invalidated in court, which means that it (and your stated wishes) will not be honored. If you have the required witnesses, the advance directive does become binding as soon as you sign it in their presence, and it remains in effect until you change it. It is a good idea to review your advance directive from time to time, to make sure it still accurately reflects what you want to happen if you are incapacitated. 

A Florida Estate Planning Attorney Can Help You Feel Heard 

Data from the Conversation Project, an arm of the Institute for Healthcare Improvement, estimates that while 92 percent of people in the U.S. think that discussing end-of-life care is important, only 32 percent have actually had the discussion. You deserve to have your wishes respected. Our Naples estate planning lawyers at the Nici Law Firm are well versed in this area of law, and are ready to try and put that experience to work for you. Call our offices today at (239) 449-6150 or contact us online to set up a free consultation.

Resources:

theconversationproject.org/

floridahealthfinder.gov/reports-guides/advance-directives.aspx

flsenate.gov/Laws/Statutes/2019/0709.2104

https://www.nicilawfirm.com/is-a-holographic-will-valid-in-florida/