With the prevalence of COVID-19 cases in Florida, many people might find themselves considering their estate planning. A proper living will helps ease the burden of loved ones and provides clear guidance to medical professionals. Read on to learn all about living wills in Florida.

What is a Living Will?

A living will, also called a healthcare directive, provides legal instructions written in advance. The instructions dictate your medical wishes in the case that you cannot make them yourself.

What is the Difference Between a Living Will and a Last Will and Testament?

A living will is effective anytime a person is alive but incapacitated to give medical direction for their own care.  A last will and testament are effective only after a person is deceased.  Both a living will and a last will and testament should be considered in the estate planning process and should be written by a lawyer who is an expert in estate planning.


According to Florida statute 765.302, a living will may be written up by any competent adult.  Under Florida law, living wills do not need notarization, but they do require witnesses. There must be at least two witnesses to the execution of the document. A living will becomes active the moment a legal professional properly executes and remains active until the person dies or they revoke it. It is up to the individual to inform their medical team, caregivers, or family of the existence of a living will to ensure that it is properly followed.

What Happens If I Don’t Have One?

In the absence of a living will, then Florida’s Healthcare Proxy Statute becomes invoked.  Florida statute 765.401 will determine a proxy-based on the following order:

  1. A court-appointed guardian
  2. Patient’s spouse
  3. An adult child of the patient
  4. A parent of the patient
  5. An adult sibling of the patient
  6. An adult relative of the patient
  7. A close friend of the patient
  8. A licensed clinical social worker

What Will a Proxy Base Their Decision On?

Florida statute will bound any proxy to make a decisions with substituted judgment.  Substituted judgment is where the proxy makes the decision based on previous conversations with the patient and to the best of their knowledge follows the wishes of that patient.  If the wishes of the patient are not-known or the proxy is an appointed stranger, then the decision must be based on the best interest of the patient.

How Do I Get a Living Will?

Although there are many forms online that will allow you to draft up a living will in compliance with Florida law, it is always recommended to have a lawyer familiar with estate planning draft the document for you. The lawyer can make sure that the document is properly executed and ensure that your wishes are being followed.