THE LIVING WILL

     For fifteen years we have listened to the Terri Shiavo battle between her husband and her parents over whether she should remain on life support. This year it became one of the most hotly contested topics and you could not watch or listen to the news without hearing about it. The courts, our governor, congress and even the President were brought into the fray trying to determine what would be the right thing to do. Had Terri expressed her wishes in writing and executed a Living Will, her intentions would have been clear and this case would most likely not have arisen.

What Is A Living Will?

     In Florida, any competent adult may make a Living Will to direct the “providing, withholding, or withdrawal of life-prolonging procedures in the event that such person has a terminal condition, has an end-stage condition, or is in a persistent vegetative state.” Your Living Will must be signed before 2 witnesses, neither of which can be your spouse or a blood relative.

     Once you execute a Living Will, you must notify your attending or treating physician that the living will has been made and if you are physically or mentally incapacitated when you are admitted to a health care facility, whoever has possession of your Living Will should provide a copy to the physician or health care facility to insure that it becomes a part of your permanent medical records.

When Can You Be Removed From Life Support?

     A Living Will, executed according to law, establishes clear and convincing evidence of your wishes. It puts the treating physician and the health care facility on notice of your intentions to be removed from life support. But, before the physician of a health care facility can agree to remove you from life support, it must determined that the following conditions have been met.

1. You do not have a “reasonable medical probability” of regaining the ability to make your own decisions regarding your treatment.
2. You have a terminal condition, an end-stage condition, or are in a persistent vegetative state.
3. There are no limitations or conditions in your Living Will that should be considered and satisfied.

Who Determines When To Remove You From Life Support?

      In determining whether you have a terminal condition, end-stage condition, or are in a persistent vegetative state, or whether you may recover capacity, or whether a medical condition or limitation referred to in your living will exists, your treating or attending physician and at least one other consulting physician must independently examine you. Both physicians must document and sign off on their findings before life-prolonging procedures may be withheld or withdrawn.

Is A Do Not Resuscitate Order A Living Will?

     Many often confuse a Do Not Resuscitate Order with a Living Will. They are quite different. A Do Not Resuscitate Order presumes that you have already stopped breathing due to heart failure and do not wish to be revived, whereas a Living Will presumes that you are still alive, on life support and wish to be removed in order that your life may terminated. In addition to a Living Will, you may wish to have a “Do Not Resuscitate Order” to permit emergency professionals to withhold or withdraw resuscitation. This will only occur if evidence of an order not to resuscitate is presented to emergency professionals such as doctors, nurses, medical technicians or paramedics. An order not to resuscitate, to be valid, must be on the Florida approved form and be signed by you (or a legally authorized representative) and your physician.

Are There Other Signed Documents I Should Have?

     In addition to a Living Will, you should have a Durable Power of Attorney and a Designation of Health Care Surrogate. All of these documents are referred to as lifetime advance directives and enable others to act or make decisions on your behalf should you become unable to do so yourself. These directives tell physicians what kind of care you would like to have if you become unable to make medical decisions for example, if you were in a coma. If you are admitted to a health facility, the facility’s staff will probably talk to you about advance directives. Since all of the advanced directives are governed by state law, be sure yours comply with Florida law.

From the unfortunate case of Terri Shiavo, we have all learned that without a Living Will we may be helpless to control our individual destiny. By preparing a Living Will, you can avoid putting your loved ones through anguish and frustration and can preserve the dignity of dying as you choose.

Consult an experienced estate planning attorney today to assist you in properly preparing your Living Will and other lifetime advanced directives.

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