Advance Health Care Directives

Advance Health Care Directives are important documents that ensure your medical wishes are honored if you become unable to communicate them yourself. At the Law Office of Shorstein & Lee, our seasoned St. Johns County lawyers understand how crucial it is to plan ahead, especially when it comes to potentially life-changing health care decisions. We focus on preparing clear and legally sound directives that reflect your preferences, protect your rights, and guide loved ones and medical professionals in making the best possible choices. Whether you need a living will, health care surrogate designation, or other planning documents, our team can help you navigate these sensitive matters with confidence. We offer a Free Consultation so that you can learn more about your options risk-free. For compassionate guidance and personalized attention, call (904) 829-3035 to speak with us. Let us help you create a plan tailored for your unique needs and goals.

Living Wills 

A Living Will serves as a vital document in Florida that outlines your medical treatment preferences when your physicians diagnose you with a terminal condition, an end-stage condition, or a persistent vegetative state. These circumstances are defined in Chapter 765 of the Florida Statutes. According to Florida Statute § 765.302, a Living Will becomes operational only after two physicians—often your primary physician and a consulting physician—agree that your condition meets one of these statutorily defined criteria. Once these physicians make that determination, healthcare providers are expected to consult the Living Will for guidance on treatments you do or do not wish to receive.

To create a valid Florida Living Will, you must be at least 18 years old and have the requisite mental capacity. In practical terms, this means you have a sufficient ability to understand the nature of the document you are signing and the implications of the directives you are setting forth. The Living Will must be in writing, signed by you (as the declarant), and witnessed by at least two individuals. One of these witnesses cannot be your spouse or a blood relative. It is also recommended that the person designated as your surrogate under a separate document not serve as a witness for the Living Will.

Most Living Wills address whether to continue or withdraw certain life-sustaining treatments, such as ventilator support, cardiopulmonary resuscitation (CPR), and artificial nutrition. Additional provisions can be included to discuss pain management or other comfort measures. Because medical technology evolves and personal values shift over time, it is wise to periodically review your Living Will. You can revoke or modify it in various ways, such as tearing it up, creating a new document that supersedes the old one, signing and dating a written revocation, or verbally stating your decision to revoke it in front of a physician. Many people choose to share copies of their Living Will with family members, trusted friends, or healthcare providers to ensure everyone understands the directives should a healthcare crisis arise.

If you need guidance preparing or updating a Living Will, a lawyer in St. Johns County can help you ensure your wishes are properly documented and legally valid.

Designation of Health Care Surrogate 

In Florida, what some other states label as a healthcare power of attorney is termed a Designation of Health Care Surrogate under Florida Statute § 765.202. By signing this document, you appoint a specific individual to make healthcare decisions on your behalf. Florida law now offers flexibility regarding when that designated person’s authority begins. Historically, the surrogate could only act if you were deemed incapacitated by a physician. However, it is possible to give your surrogate immediate authority to access information and consult with you and your healthcare team even while you retain decisional capacity. Under the immediate authority approach, you still control all medical decisions as long as you remain capable of making them independently.

Executing a valid Designation of Health Care Surrogate requires that you sign the document in the presence of two witnesses, one of whom must not be your spouse or a blood relative. Additionally, the individual named as the surrogate is not permitted to act as a witness for this document.

A key consideration when drafting a Designation of Health Care Surrogate is whether to include a HIPAA release. The federal Health Insurance Portability and Accountability Act (HIPAA) governs how medical information is shared. Without a clear HIPAA release within the surrogacy document, healthcare providers may refuse to disclose certain medical records or treatment details to the surrogate. This can delay important decisions and complicate your care if the surrogate does not have complete information. By integrating a HIPAA release, you grant your surrogate immediate permission to discuss your care with physicians or specialists, access relevant charts, and fully participate in managing your treatment plan. Such foresight can be especially important if decisions need to be made quickly in a hospital or other medical facility.

If your personal circumstances or relationships change, either temporarily or permanently, you can revoke the Designation of Health Care Surrogate. You may do so by signing a written revocation, destroying the existing document, or making an oral statement of your intent to revoke in the presence of a physician. Often, people elect to name an alternate surrogate who can act if the primary surrogate is unavailable or unwilling to serve. Keeping these documents current helps ensure that healthcare decisions remain aligned with your most recent wishes. Our St. Johns County Estate Planning attorney can help you prepare or update your Designation of Health Care Surrogate to reflect your current preferences.

DNR Orders and POLST Forms 

Certain medical directives focus on urgent, life-threatening situations where treatments such as CPR might be considered. In Florida, a Do Not Resuscitate (DNR) order is customarily printed on a brightly colored form—often referred to as Form 1896—issued by the Florida Department of Health. This directive formally states whether you wish to receive CPR if your heartbeat or breathing stops. It must be signed by you or your authorized healthcare decision-maker and a Florida-licensed physician to be valid. Because DNR orders are meant to guide first responders in an emergency, they should be kept in a visible and easily accessible place, such as on the front of your refrigerator or your bedroom door.

A Physician Order for Life-Sustaining Treatment (POLST) form provides instructions that go beyond CPR. Typically reserved for individuals with advanced or severe health conditions, a POLST includes directives on whether or not to administer artificial ventilation, tube feeding, or other significant interventions. One fundamental difference between a POLST and a Living Will is that a POLST is an actionable medical order that healthcare providers must follow immediately, whereas a Living Will is a legal directive that generally becomes relevant only when you are diagnosed with specified conditions like a terminal illness or an end-stage condition. The POLST form must also be signed by the patient (or a legal representative) and a physician. If it is validly signed, medical staff are required to abide by its directives as part of your current plan of care.

Although DNR orders and POLST forms may overlap in scope with a Living Will, each plays a distinct role. The Living Will addresses treatments under the limited scenarios identified in Florida Statute § 765.302, including terminal conditions, end-stage conditions, or persistent vegetative states, while the POLST operates more broadly and applies in the present tense for those with serious illnesses. If you maintain both a Living Will and a POLST, ensure they do not conflict and that medical providers are aware of both documents.

Decision-Making Hierarchy and Capacity 

Florida law outlines a clear standard of capacity for creating or revoking advance directives: you must possess the ability to understand the nature and consequences of the decision at hand and communicate those decisions in some manner. While the law does not spell out an exact medical or psychiatric test within the text of Chapter 765, mental capacity is often assessed by a physician or mental health professional who evaluates whether the individual can comprehend relevant information, appreciate the foreseeable outcomes of choices, and express a consistent decision. If you have any question about your own capacity, a thorough consultation with a physician may eliminate uncertainty before executing or revising an advance directive.

If you do not have a Designation of Health Care Surrogate in place, Florida law provides a hierarchy of potential decision-makers, sometimes called “proxies.” Under Florida Statutes, the typical order—after any court-appointed guardian—is your spouse, then adult children, then parents, followed by adult siblings, adult relatives, or close friends. This hierarchy takes effect if you are found incapacitated and no Designation of Health Care Surrogate exists or is immediately available. The statutory priority helps ensure someone is authorized to make decisions on your behalf, but relying on the default hierarchy may lead to confusion or family disagreements, especially if multiple children or relatives hold differing opinions. By naming a surrogate in advance, you help reduce the possibility of conflict.

It is also important to know that if you have appointed a surrogate and you are later found to be partially or fully incapacitated, that surrogate’s authority can supersede decisions made by others in the statutory hierarchy. However, the authority of your surrogate or any proxy does not continue indefinitely if you regain capacity. Once you are deemed capable again, you assume control over your healthcare decisions.

Guardianship Considerations 

Florida’s guardianship statutes, primarily located in Chapter 744 of the Florida Statutes, can play a role in healthcare decisions under certain circumstances. For example, if an individual lacks valid advance directives and someone disputes the proposed course of treatment, a Florida court may appoint a guardian to make medical and possibly other personal decisions. Guardianships are usually considered a last resort because they involve court oversight, legal fees, and the potential for limitations on personal rights.

A guardian can override or supplement decision-making in complicated situations. This could happen if an existing Designation of Health Care Surrogate is challenged, if no advance directives were ever established, or if there is substantial conflict among family members or healthcare providers regarding the best course of treatment. In most instances, however, a properly executed advance directive will guide healthcare professionals without the need for a guardian. By having Living Wills, Designations of Health Care Surrogate, DNR orders, or POLST forms in place, you can reduce the likelihood that a court-ordered guardianship becomes necessary.

Integrating Advance Directives into a Broader Plan 

Although Living Wills, Designations of Health Care Surrogate, DNR orders, and POLST forms address healthcare decisions, these directives function best when integrated into a cohesive plan that also considers financial and legal matters. Many people pair healthcare directives with a Durable Power of Attorney, which enables a trusted person to handle financial obligations such as paying bills, managing real estate, or overseeing investments when they become unable to do so. If you do not have a Durable Power of Attorney in place, financial decisions can become complicated if incapacity occurs.

Likewise, a Last Will and Testament or a Revocable Trust deals with the distribution of your assets after death but can indirectly intersect with healthcare decisions. For instance, funding for long-term care or ongoing medical treatment during your lifetime might require timely access to your assets. It is prudent to coordinate your healthcare documents with your estate planning documents. If different individuals serve as your healthcare surrogate and your financial agent, ensure they understand their respective roles and communicate effectively with each other. This coordination can prevent lapses in paying for medical services or confusion about who is responsible for which decisions.

Regularly reviewing your advance directives, especially after significant life events—such as marriage, divorce, new health diagnoses, and births or deaths in the family—can keep your plan up to date. If your designated surrogate relocates, you might need to reconsider your choices or discuss alternative means for that surrogate to oversee your medical decisions from a distance. If your views on particular medical treatments shift, updating the Living Will or issuing a revised POLST can avoid potential conflicts if you become unable to communicate.

As part of those reviews, confirm that relevant healthcare providers, facilities, and trusted relatives know where to locate your documents in an emergency. Some individuals keep a binder of key papers at home, inform their relatives about its location, and provide digital copies. If you choose to store electronic scans, ensure they are easily retrievable and recognized as valid. Providing these directives to key individuals and keeping dated copies helps ensure that outdated versions do not cause confusion.

Combining Living Wills, Designations of Health Care Surrogate, DNR orders, POLST forms and any court-approved guardianship arrangements where applicable, creates a more robust and transparent outline of your healthcare preferences. These documents center your decision-making power in times when you might be most vulnerable and keep conflict among loved ones to a minimum. Reviewing them periodically and ensuring they comply with Florida’s statutory requirements—particularly those specified in Chapter 765—can help avoid disagreements and solidify a firm basis for healthcare providers to follow. By carefully articulating instructions for all aspects of health decisions, you protect your autonomy, offer reassurance to family members, and help facilitate effective communication among everyone involved in your care. If you have questions about integrating advance directives with your estate planning, our St. Johns County lawyer can help guide you through your options.

Let Us Help You Pursue Your Goals

Let us help you pursue your goals. Our experienced St. Johns County lawyer, Alyssa Shorstein, at the Law Office of Shorstein & Lee strives to provide personalized guidance for all aspects of your advance health care directives. We understand the intricacies of Florida law and are committed to ensuring your choices are clearly documented and upheld. Whether you need to draft or update a Living Will, Designation of Health Care Surrogate, or other key directives, we can walk you through the necessary steps and address any concerns. Scheduling a Consultation is the first step in clarifying your wishes and safeguarding your peace of mind. We encourage you to call us at (904) 829-3035 to discuss your circumstances and learn how we can assist. With a comprehensive approach, we aim to help you protect your medical preferences and achieve greater certainty about your future care. Reach out now to begin your plan.