Advance Healthcare Planning
Florida Advance Directive 
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Florida Advance Directive 

By 

Jennifer Mcgee

Head of Legal at TrulyWill

When a person chooses to make a Living Will, along with the Medical Power of Attorney , these two legal documents become an Advance Directive. 

An Advance Directive may include your sign, names of witnesses, their signatures, etc in adherence to your state’s requirements. Every state has different requirements to be followed. Some states ask for witnesses and notaries, others look for different criteria to be followed. 

Likewise, some states consider Living Will and Advance Directive as different and separate documents, whereas others consider both documents the same. In some states, Living Will and Advance Directive are used interchangeably. 

In this article, you will get a complete guide for making an Advance Directive for Healthcare in Florida.  

TABLE OF CONTENTS

  1. Legal Requirements for a valid Advance Directive
  2. Who can be your witnesses in the Florida Advance Directive?
  3. Who can be your Proxy/Health Care Surrogate in the Florida Advance Directive?
  4. When does an Advance Directive come into effect in Florida?
  5. How can an Advance Directive be revoked?
  6. How to amend or change an Advance Directive?
  7. Florida rules for divorce after making your Advance Directive
  8. Sections of the Florida Advance Directive Form

Legal Requirements for a valid Advance Directive

  • Written by the grantor (maker of Advance Directive): Yes
  • Grantor must be:
  • Above the age of 18 years: Yes/emancipated minor
  • Sound mind and memory: Yes
  • Signed by the grantor: Yes/by any adult on the grantor’s behalf
  • Signed by Proxy/Agent: Yes
  • Proxy/agent accepts his role in writing: Yes
  • Witness required: Yes
  • Number of witnesses: 2
  • Signed by the witnesses: Yes
  • Number of documents required: 1 
  • Other names for a Living Will: Living Will
  • Other names for a Healthcare Power of attorney: Designation of Healthcare Surrogate
  • Proxy can decide on mental health issues: No

Who can be your witnesses in the Florida Advance Directive?

Anyone can be your witness in Florida if

  • He is an adult i.e., above 18 years of age, or an emancipated minor i.e. a minor who has been legally freed from the control of the parents/ guardians, &
  • He is a sound-minded person which means that he can understand the consequences of making an Advance Directive and the laws applied to it.

Note: Your witnesses cannot be: 

  • Your healthcare proxy/agent,
  • your supervising health care provider/ his employer,
  • Related to you by blood, adoption, or marriage (at least one witness),
  • Entitled to a share in the estate on your death (at least one witness),
  • the operator or an employee of a community care facility, 
  • the operator or an employee of a residential care facility for the elderly, 

At the time of writing the Advance Directive at least one witness must be a patient advocate or ombudsman when you are a patient in a skilled nursing facility.

Note: Florida state laws require the witnesses to sign the form and give in writing their declaration or you can give an acknowledgment before the public notary. 

Who can be your Proxy/Health Care Surrogate in the Florida Advance Directive?

Anyone can be your Health Care Surrogate in Florida if

  • He is an adult i.e., above 18 years of age, &
  • He is a sound-minded person which means that he can understand the consequences of making an Advance Directive and the laws applied to it.

Who cannot be your Proxy/Agent:

  • your supervising health care provider, 
  •  if you are receiving care at a community care facility/residential care facility then its operator or its employee.
  •  if you are receiving care  at a health care institution then its employee.

Unless: 

  • the employee is related to you by blood, marriage, or adoption, 
  • the employee is your registered domestic partner, or 
  • the employee is your coworker at the facility or institution.

Other than the above legal requirements, the Proxy/Agent should be:

  • Trustable to adhere to your wishes and intentions.
  • Trustable to defend you if there’s any disagreement about your medical care.
  • He wanted to be your Attorney in Fact of his own free will to take care of your health affairs.
  •  He should not be your doctor or one of the caretakers.

Note: You can appoint an Alternate Proxy as well. The alternative Proxy/Agent will step in if the first person you name as a proxy is unable, unwilling, or unavailable to act for you or if you decide to revoke his authority.

When does an Advance Directive come into effect in Florida?

In Florida, an Advance Directive doesn’t come into effect on signing the form by the grantor, proxy, and witnesses. An Advance directive comes into effect only when the doctor declares that you are incapable of deciding on your behalf and have become debilitated due to illness or injury.

Note: Your Florida Advance Directive will not be effective in any medical crisis or emergency unless you become incapacitated to understand and communicate your wishes and consent.

How can an Advance Directive be revoked?

You can revoke or terminate your Florida Advance Directive anytime by:

  • A written revocation,
  • An oral revocation, &
  • Tearing, burning, and obliterating or destroying or any other person (on your behalf) destroying the document in any other way.
  • Executing a new Advance Directive.

Note: The revocation of an Advance Directive will be effective once you notify your healthcare provider and healthcare surrogate/proxy.

How to amend or change an Advance Directive? 

You can make changes or amend your Advance Directive at any time in Florida but once you have signed and witnessed/notarized it you have to resubmit a new document with the required changes. It is recommended to go through, double-check, and make sure of everything before signing the Advance Directive.

Florida rules for divorce after making your Advance Directive 

Divorce from the spouse will not make any effect on the validity of the Florida Advance Directive even if the spouse was named under Section 1 as the Proxy/Health care surrogate. However, the divorce or annulment of marriage will revoke the spouse’s power as a surrogate with immediate effect. 

If you would prefer your spouse to remain legally authorized to act as a surrogate even after divorce, you may add as a Special Instruction, “The authority of my surrogate shall not be revoked by divorce or annulment of our marriage.”

Sections of the Florida Advance Directive Form

Section 1: Designation of health care surrogate

You can fill this form out and provide all the details. The appointment of the Healthcare Proxy/Agent and his details will be filled along with the instructions for the Proxy/Agent to follow.

On the left side, you will find a gray box that contains all the instructions that will help you in the application process. 

Florida Advance Directive Sample Form

SECTION 1: DESIGNATION OF HEALTH CARE SURROGATE


I, ________________________________________________ , designate as my health care surrogate under s. 765.202, 


Florida Statutes: Name: _______________________ Address: ______ Phone: ______


If my health care surrogate is not willing, able, or reasonably available to perform his or her duties, I designate as my alternate health care surrogate: Name: ______________________

Address: ______ Phone: ______


INSTRUCTIONS FOR HEALTHCARE 


I authorize my health care surrogate to: 


(_______ ) Receive any of my health information, whether oral or recorded in any form or medium, 

that: 

1. Is created or received by a health care provider, health care facility, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and 

2. Relates to my past, present, or future physical or mental health or condition; the provision of health care to me; or the past, present, or future payment for the provision of health…

……..


Section 2: Living Will

Florida Advance Directive Sample Form

SECTION 2: LIVING WILL

Declaration made this day of (day) (month) (year) 

I,____, willfully and voluntarily make known my desire that my dying not be artificially prolonged under the circumstances set forth below, and I do hereby declare that, if at any time I am incapacitate and: 


(initial all that apply) I have a terminal condition, or I ……..

………..regarding the withholding, withdrawal, or continuation of life prolonging procedures, 

I wish to designate, as my surrogate to carry out the provisions of this declaration: 


Name: ____________________ Address: 

Zip Code: 

Phone:


I understand the full import of this declaration, and I am emotionally and mentally competent to make this declaration.

……….

Section 3: Donations of Organs at death


Florida Advance Directive Sample Form

SECTION 3 : DONATIONS OF ORGANS AT DEATH 

(OPTIONAL)


I hereby make this anatomical gift, if medically acceptable, to take effect on death. 

The words and marks below indicate my desires: 

I give (initial one choice below): 

any needed organs, tissues, or eyes for the purpose of transplantation, therapy, medical research, or education; only the following organs, tissues, or eyes for the purpose of transplantation, therapy, medical research, or education: 

my body for anatomical study if needed. Limitations or special wishes, if any: 

I have already arranged to…

….

Section 4: Execution

You must sign in the presence of two witnesses. The details of the witnesses along with their signs are also required.

Florida Advance Directive Sample Form

SECTION 4 : EXECUTION


____________________________________________________________ Signature Date ____________________________________________________________ Printed Name ____________________________________________________________ Address ____________________________________________________________ City State SIGNATURES OF WITNESSES: ____________________________________________________________ Signature of First Witness Date ____________________________________________________________ Printed Name of First Witness ____________________________________________________________ Address of First Witness ____________________________________________________________ City State ____________________________________________________________ Signature of Second Witness

……

..


Give photocopies of the signed original to your agent and alternate agent, doctor(s), family, close friends, clergy, and anyone else who might become involved in your health care. If you enter a nursing home or hospital, have photocopies of your document placed in your medical records. 

Be sure to talk to your agent(s), doctor(s), clergy, family, and friends about your wishes concerning medical treatment. Discuss your wishes with them often, particularly if your medical condition changes

How can TrulyWill help?

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Got Questions?

Hi, I’m Jennifer McGee.

Co-founder & Head of Legal at TrulyWill

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Do advanced directives need to be notarized in Florida?
In Florida, advance directives do not need to be notarized to be legal, though some prefer to have them notarized along with any other legal documents, such as a will.
Does an attorney have to draft an advance directive in Florida?
The procedure of creating advance directives is simple, you do not require an attorney though you may choose to consult one. However, an advance directive either it is written or oral needs to be witnessed by two individuals.
Who makes medical decisions if you are incapacitated in Florida?
Under Florida law, incapacity means when a physician declares that the individual can longer give informed consent. Any person may designate someone to make health care decisions on their behalf should they become incapacitated in Florida.
How do I get a medical power of attorney in Florida?
It is the same as creating a document of Advance Directive. Firstly, choose Your Surrogate/Acting Agent, be specific on what decisions your Power of Attorney can make for you, and fill out your Florida Medical Power of Attorney Form. Lastly, sign your document before subscribing to witnesses and a Notary Public.
Do it yourself will Florida?
There is no legal requirement to have an attorney draft a will so a do-it-yourself will is valid in Florida. However, the laws governing wills in Florida are strict. The requirements for a valid will are not relaxed just because a person chose to write the will themselves.
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