In a series of ongoing posts, our blog has been exploring the topic of advance directives, meaning those legally binding documents setting up a health care plan to commence in the event of the creator’s incapacity.
Specifically, we spent some time discussing how the execution of three important advance directives — living wills, health care surrogate designations and anatomical donations — can provide greater clarity and peace of mind for family members should a person’s health worsen.
All of this discussion about advance directives naturally begs the question as to whether a person is legally required to include this document as part of any estate plan.
The simple answer is that there is nothing in Florida law that requires a person to take this step. However, experts indicate that those who elect not to do so should be aware that this failure could very well mean that their exact medical wishes will likely be made by a court-appointed guardian — spouse, adult child, adult sibling, parent, etc. — who may not be aware of their exact preferences.
By way of example, a appointed guardian may elect to provide life-prolonging procedures if you fall gravely ill, something you may not have wanted under any circumstances.
Another question to arise in the context of advance directives is whether they must be prepared by an attorney.
Once again, while the answer to this question is no, experts nevertheless urge people to carefully consider this decision. That’s because, like any estate planning document, there are numerous complex requirements that must be satisfied in order to ensure the validity of advance directives, requirements that an attorney would be well aware of and help ensure are followed.
For instance, it may not be clear to a layperson that state law expressly dictates that while an advance directives can be executed either orally or in writing, it’s creation must be witnessed by at least two people, one of whom is not a spouse or related by blood.
Our blog will continue to examine this topic in future posts.
