The practice of law requires precision in diction. That is, word choice is often critical to achieving the client’s goals. Did you hear about the $10 million comma? Few grammar debates have raged as fiercely as that over the use of the serial comma, fellow grammar nerds know it as the oxford comma.
One document that has caused a fair bit of confusion is the living will. Some folks think this refers to a document directing the disposition of your assets upon death, but that’s a Will. Some people think it means that paramedical or medical professionals won’t perform CPR on you (hint: that’s the other one in the title). Finally, and correctly, some people think it refers to a document that tells your doctor that you’d prefer not to artificially prolong the process of dying.
A living will is your declaration to the world that you do not want to be a vegetable for the rest of your life. A few years back, I’m sure a lot of people remember, there was a case in the national spotlight involving the withholding of food and hydration from a person in an apparent persistent vegetative state. That happened right here in Clearwater. If you go to the local bar events, you’ll probably meet some of the attorneys involved.
Living Wills are governed by Florida Statutes Chapter 765.301-309. “Any competent adult may, at any time, make a living will or written declaration and 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.” Fla. Stat. 765.302 (2017). It goes on to lay out the specific formalities required to create a valid Living will. This section also puts the responsibility of notifying the doctor on the person making the Declaration of Living Will.
You don’t have to name someone to carry out these wishes, any person can do that. We always include a list of people in the documents we prepare. That way, if you forget, or can’t tell your doctor, someone you trust will be able to get that information to them.
Sometimes people will say “But they will just let me die so they can harvest my organs!” or “I don’t want my dirtbag kid pulling the plug so they can take my stuff!” These concerns are somewhat misplaced. Well, maybe not the dirtbag kid, I’ve known some real characters. Either way, there’s not one person in charge of unceremoniously kicking a plug out of the socket to bring your life to an end.
What is really required under the statute is a specific procedure. Your attending physician and at least one other consulting physician must separately examine you. They must document their findings in the medical record, and they must sign those findings. What they will be trying to determine is whether or not you have a terminal condition, end-stage condition, that you are in a persistent vegetative state, or may recover capacity.
The Do Not Resuscitate Order (DNRO) is governed by Florida Statutes Chapter 401.45. This is different in that it is a document that is signed by you and your physician. It only directs that Cardiopulmonary Resuscitation (CPR) efforts be withheld or withdrawn. Period. Hard stop.
Whereas a Declaration of Living Will is more flexible in what language can be used, a DNRO has very specific requirements. It is a form developed by the Florida Department of Health. It’s called a DH Form 1896. Fla. Admin. Code r. 64J-2.018 (2017).
The form can be executed by a proxy as provided in Florida Statutes Chapter 765., a health care surrogate, court appointed guardian, or a durable power of attorney.
A Florida DNRO must have the words “DO NOT RESUSCITATE” printed in black and displayed across the top of the form. You can use an unaltered duplicate of DH Form 1896. Also, if it’s a duplicate, it must be of good quality. It must be on yellow paper.
This is where the Agency really lets us go nuts, because the shade of yellow doesn’t have to be an exact duplicate. I would use as close of a match as humanly possible. The last thing you want is to wake up from having your chest cracked open and your heart massaged back to beating because the hospital thought your DH Form 1896 was more of an orange, and didn’t want to have liability for not resuscitating you.
This is a form you can get from the Department of Health. I don’t usually say “just get a form from X, Y, or Z.” In this case, see the Department of Health Website to find out where to get one, then take it to your doctor. Don’t print it yourself, if your ink cartridge is out, you may be one shade of yellow off from having a valid form.
If you think you’re in a position where you’d prefer not to have CPR performed on you, you should get a DH Form 1896 and talk to your doctor. This is common for people or more advanced age or who have a terminal condition and are nearing the end. You can also get a living will if you don’t want to have the dying process artificially prolonged.
If you aren’t suffering from any specific ailment or condition, but generally don’t want to live in a persistent vegetative state for a long time with no hope of recovery, then you may want to get a Living Will prepared, but probably not a DNRO.
If you want to find out more about either of these documents, you can call one of our Florida Estate Planning attorneys. Our Florida attorneys can help get you the specific document you need.
The above is for informational purposes only. None of this communication creates an attorney-client relationship. You should speak to a Florida Estate planning attorney or a Florida elder law attorney. Call or email to set up your free consultation.
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