ADVANCE DIRECTIVE? OR LIVING WILL?

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Jeff NuckolsAdvance Directive? Or Living Will?

By: Jeffrey R. Nuckols, Esq.

Over the past few months you might have read about the battle over who would control the medical care of radio legend Casey Kasem, and more recently over the questions of whether food, hydration, and medication should have been withheld from Mr. Kasem and who should have controlled that decision. Sadly, perhaps mercifully, Casey Kasem passed on June 15, 2014, but reading and talking about the conflict over Mr. Kasem’s care might have you thinking about a living will.

Florida law provides for a living will, and more generally for an advance directive. See, for example, Fla. Stat. 765.101(11) (2013) and Fla.Stat. 765.101(1) (2013). Notice that Florida’s definition of “advance directive” includes more than only a living will so that your living will might be part of your larger scheme for your own health care; that is, your advance directive.

As an interesting side note, you might notice that Chapter 765 of the Florida Statues, the chapter addressing advance directives, appears within Title XLIV of the Florida Statutes which happens to be the title containing civil rights statutes.

I won’t go into any detail in this posting other than to point out that Florida’s definitions for “advance directive” and for “living will” each include oral statements as well as written documents, but be advised that, whether written or oral, the document or oral statement must be witnessed. See Fla. Stat. 765.101(11) (2013) and Fla. Stat. 765.101(1) (2013). Furthermore, notice that for a living will in Florida, a written document signed in the presence of two subscribing witnesses provides a presumption, rebuttable, of clear and convincing evidence of the principal’s wishes. Fla. Stat. 765.302(1) and (3) (2013). Always consult an attorney, but a written document might be a better choice over an oral statement, depending on your particular circumstances.

By the way, you can find the Florida Statutes here.

Nothing in this article should be construed as legal advice or as forming an attorney-client relationship. If you have any questions about your particular situation please do not hesitate to contact Jeffrey R. Nuckols at (321) 329-5449 ext. 2 for a free telephone consultation.

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