Nobody likes to think about the fact that one day they might lose the ability to make decisions for themselves. But the sad reality is that nearly seven million Americans are living with Alzheimer’s disease, and this number is expected to grow to thirteen million by 2050. Alzheimer’s, dementia, brain injury, stroke, and terminal illness can all lead to potential incapacity. It’s better to face this possibility early in life so that you can make advance decisions concerning your future medical care if one day you will no longer be able to make them yourself. Thankfully, several legal tools can help you to do this. In Florida, advance directives and living wills are vital legal mechanisms for incapacity planning.
Why Would You Need To Plan For Your Incapacity?
Many people assume that estate planning starts and ends with the execution of a last will and testament. While planning for your eventual demise is important, you should also prioritize planning for your incapacity, both for your own sake and the sake of your loved ones. Recording your wishes for your future medical treatment, if you can no longer communicate them yourself, will give your family peace of mind that they are respecting your preferences and making decisions you would have been happy with. Many families face significant emotional distress when they are asked to make decisions on behalf of a loved one who is incapacitated or unconscious: executing a living will and advance directive will ensure that your loved ones aren’t left in this predicament.
What Is An Advance Directive?
Now it’s time to get down to brass tacks: what exactly is an ‘advance directive’? This is a broad term that refers to any legal document that records your wishes for your future medical treatment in specific circumstances. A living will is one type of advance directive, but there are others, such as Durable powers of attorney, Do Not Resuscitate (DNR) Orders, health care surrogacies (also called health care proxies), and advance directives concerning organ donation.
It’s important to understand that some advance directives only come into effect once you are no longer able to give informed consent to medical treatment, for example, you have been in a car accident and are in a coma, or are in the end stages of Alzheimer’s, or have had a stroke. At that point, your doctors will ask to see your advance directives so that together with your family they can make treatment decisions that you yourself previously agreed to when you still had sufficient mental capacity. Advance directives are specifically recognized in Florida’s statutes, and thousands of Floridians execute them each year as part of their incapacity and estate planning.
What Is A Living Will?
A living will, or living will declaration, is a specific kind of advance directive. In living wills, people typically indicate the circumstances in which they want to be given life-sustaining treatment, when they want such treatment to cease, how they would like their pain to be managed, and other preferences for end-of-life and palliative care. For example, your living will might indicate when you want life-support to be withdrawn e.g. on the cessation of brain or cardiac activity. Unlike some other advance directives, such as a health care proxy, a living will does not appoint a person to make medical decisions on your behalf: it simply records your wishes so that they can be relayed to your medical team if the need arises. Your living will ‘speaks’ on your behalf.
What Are Some Other Common Advance Directives?
A living will is one of the most common types of advance directives, but there are many other legal instruments you can use to clarify your wishes on a range of medical decisions that might need to be taken when you are incapacitated. Other common advance directives include:
- DNR and Do Not Intubate (DNI) Orders: A DNR Order is a document that you can execute to indicate that your doctors should not perform CPR if your heart stops beating or if you stop breathing. A DNI is similar and indicates the circumstances in which you do/do not wish to be intubated in the event you stop breathing.
- Health care surrogacy: Since it is impossible to preempt every kind of medical scenario that could unfold, many people execute a health care surrogate designation. This is a document that appoints and authorizes a person you trust to make medical decisions on your behalf in the event you are incapacitated. They’ll be empowered to make any decision concerning your treatment and care. Health care surrogacies are also called health care power of attorneys.
- Advance directives concerning organ and/or tissue donation: Many people also use advance directives to indicate whether they wish for their organs to be donated, and if so, where they want them to be donated.
- Advance directives for mental health treatment: If you are a person with serious mental illness who may become incapacitated at some point in the future (for example, during a psychotic episode), an advance directive can be used to record your wishes for your mental health treatment.
There are a wide range of advance directives that you can execute to prepare for the unfortunate eventuality of your incapacity. If you are uncertain about the kind of advance directive you should execute, an experienced wills and trusts lawyer can explain Florida’s incapacity planning legal framework to you and help you tailor your advance directives to suit your needs.
How Can You Incorporate An Advance Directive And Living Will Into Your Estate Planning?
Ideally, you should come to see incapacity planning as a normal part of your estate planning process. If you haven’t yet drafted a will, you must do so as soon as possible. Your attorney will be able to assist you with drafting your living will and any other advance directives that your circumstances may require. Although you can draft your advance directives yourself, it is strongly recommended that you hire an attorney to assist you in ensuring our directives are validly executed, legally enforceable, and clearly worded.
It’s important to regularly update your advance directives after major life changes, just as you would your will. For example, if you have appointed a spouse or sibling to be your health care surrogate, and that person is now deceased (or you have separated from your spouse), you should update your health care surrogacy accordingly. Similarly, if you receive a major health diagnosis that may result in your incapacity in the future, it is important to update your living will and other advance directives to cater to whatever medical decisions might arise down the line.
An Experienced Wills And Trusts Attorney Is Ready To Assist You
At the Law offices of Gary I. Handin, P.A., we have over 50 years of experience in drafting a wide range of advance directives for our valued clients. We understand that the prospect of incapacity can be difficult to face, and we will help you to confront your incapacity planning in a compassionate, sensitive, and supportive way.
Our lead attorney has decades of experience in estate planning and will help you draft an advance directive that is clear, precise, and comprehensive, giving you total peace of mind that your wishes will be respected and your loved ones will be saved from unnecessary distress.
Contact us at 1-877-815-4560 today to arrange your first consultation or find out more about our wide range of legal services.
