When most people think about estate planning, they focus on what will happen to their property after they die. While deciding how your assets will be distributed is certainly an important objective, a comprehensive Florida estate plan should also prepare for the possibility that you may become unable to make important decisions during your lifetime. A sudden accident, serious illness, stroke, or progressive neurological condition could leave you temporarily or permanently incapable of communicating your healthcare wishes when critical medical decisions must be made. Planning for the possibility of incapacity allows you to retain a measure of control over your medical care even if you cannot personally express your preferences. One of the most important documents for accomplishing that objective is a Living Will which can provide guidance to your physicians, your loved ones, and your designated healthcare decision-maker if you are unable to make or communicate your wishes. To help ensure that your wishes are honored, the Vero Beach attorneys at Kulas Crawford & Smith discuss the importance of including a Living Will in your Florida estate plan.
Estate Planning Should Prepare for Life as Well as Death
A well-thought-out and effective estate plan should address two separate, but equally important, concerns. First, it should provide instructions regarding the management and distribution of your assets after your death through documents such as a Last Will and Testament or a revocable living trust. Second, it should prepare for the possibility that you may remain alive but become unable to make your own financial or medical decisions.
Unfortunately, people often make the mistake of assuming that a Last Will and Testament addresses both situations; however, your Will has no legal effect until after your death. Consequently, if you become incapacitated because of illness or injury, your Will does not provide authorization for anyone to make healthcare decisions or communicate your treatment preferences.
Without advance planning, your loved ones may be forced to make extraordinarily difficult medical decisions with little guidance regarding your wishes. Depending upon the circumstances, disagreements may arise regarding the type or extent of medical treatment you would have wanted, creating additional stress during an already emotional time.
What Is a Living Will?
Under Florida law, a Living Will is an advance directive that allows you to express your wishes concerning the use, withholding, or withdrawal of life-prolonging medical procedures if you later become unable to communicate those decisions yourself. Unlike a traditional Will, which becomes effective only after your death, a Living Will operates during your lifetime. Its purpose is to provide legally recognized instructions to your physicians and healthcare providers regarding certain medical treatment decisions when you no longer have the ability to communicate your preferences, typically because you have been diagnosed with a terminal condition, an end-stage condition, or are in a persistent vegetative state under circumstances recognized by state law.
Rather than requiring your spouse, children, or physicians to speculate about what you would have wanted, a Living Will allows you to make those decisions thoughtfully while you are fully competent to do so. Many people associate Living Wills exclusively with end-of-life decisions. While those decisions certainly represent an important aspect of the document, preparing a Living Will is fundamentally about preserving your personal autonomy. It allows you to determine how certain medical decisions should be handled if you lose the ability to communicate.
What Decisions Can a Florida Living Will Address?
Attitudes and preferences for medical care and treatment can differ significantly from one person to the next. Some people wish to receive every available treatment regardless of the likelihood of recovery. Others prefer to avoid extraordinary medical interventions when recovery is no longer reasonably possible. Neither approach is inherently correct or incorrect. What is important is ensuring that your own values and preferences guide these deeply personal decisions.
A Florida Living Will typically provides instructions regarding whether life-prolonging procedures should be initiated, continued, withheld, or withdrawn when the conditions specified by Florida law have been satisfied. In practical terms, a Living Will may address your desire to accept or reject artificially administered nutrition and hydration, mechanical ventilation, cardiopulmonary resuscitation, and other life-prolonging medical procedures. A Living Will can also indicate your preferences for palliative and comfort care intended to relieve pain and preserve dignity.
When Does a Living Will Become Effective?
A Living Will does not become effective simply because you become ill or require hospitalization. Instead, Florida law generally requires that specific legal and medical conditions be satisfied before healthcare providers rely upon the instructions contained in the document. Typically, your treating physician, together with another consulting physician when required by law, must determine that you lack the capacity to make your own healthcare decisions and that you are suffering from one of the qualifying medical conditions identified in Florida’s advance directive statutes. Only after those determinations have been made do the instructions contained in your Living Will become operative.
How Is a Living Will Different from a Designation of Health Care Surrogate?
Although a Living Will and a Designation of Health Care Surrogate often work in tandem during a period of incapacity, they are not the same document. Both are referred to as an “advance directive” and are components of incapacity planning, but they serve very different functions. A Living Will communicates your own instructions regarding life-prolonging medical treatment under circumstances specified by Florida law while a Designation of Health Care Surrogate appoints another individual to make healthcare decisions on your behalf if you become unable to make those decisions yourself.
Your Living Will provides guidance regarding your preferences, while your Health Care Surrogate applies those instructions to the specific medical circumstances that arise. By incorporating both documents into your Florida estate plan, you create a far more comprehensive framework for addressing future healthcare decisions than either document could provide independently.
Reducing the Emotional Burden on Your Loved Ones
A serious illness or catastrophic injury places tremendous emotional strain on family members. When a loved one cannot communicate, spouses, children, parents, and siblings often find themselves confronting extraordinarily difficult medical decisions while simultaneously coping with fear, uncertainty, and grief. Without written guidance, family members frequently struggle to make decisions.
Rather than forcing your loved ones to guess your preferences during an emotionally overwhelming situation, your Living Will provides instructions that you prepared after thoughtful consideration. Your family can then devote more of its attention to supporting one another and spending meaningful time together instead of debating complicated healthcare decisions.
Helping Minimize Family Conflict
Even close families sometimes disagree regarding appropriate medical treatment when no advance directives exist. One family member may believe every available treatment should continue indefinitely, while another believes you would have preferred a more limited course of medical intervention. Unfortunately, disagreements among family members may delay decision-making, create lasting resentment, and increase emotional stress during an already difficult period. A Living Will significantly reduces the likelihood of these conflicts by providing written evidence of your own decisions. Although emotions may still run high during a medical crisis, having clear written instructions often reassures family members that important healthcare decisions are being made according to your expressed wishes instead of another person’s interpretation of what you might have wanted.
Are You Ready to Incorporate a Living Will into Your Florida Estate Plan?
To learn more, please join us for an upcoming FREE seminar. If you are ready to incorporate a Living Will into your Florida estate plan, please contact an experienced Vero Beach estate planning attorney at Kulas Crawford & Smith by calling (772) 398-0720 to schedule a consultation.
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