A living will is a written statement expressing your end of life decisions. Most everyone agrees that they would not want to "be a vegetable" but living wills have more nuance than this. Studies have shown that living wills have not been effective in helping us die better deaths in the United States. Statistics have shown, for instance, that people with living wills and people without living wills die in the hospital at the same percentage rate. One can argue that this means living wills are ineffective because most people would not want to die in a hospital but would rather be at home with their loved ones.  

If living wills are ineffective, what are the reasons for this?  The answers are generally as follows:

  • The family/care providers never had a copy of the living will;
  • The living will is vague and not specific;
  • The patient changes their mind on withholding medical procedures at end of life;
  • The healthcare surrogate did not know what the principal wanted;
  • The healthcare surrogate does not enforce the living will, maybe through family pressure;
  • The doctors do not discuss end of life issues clearly enough with family;
  • The family does not understand that their loved one is actually at end of life;
  • The surrogate/family are not realistic in medical expectations and medical futility (i.e., they do not want to give up hope);
  • And more . . .

If living wills are generally considered ineffective, what are the options for improving that you die in accordance with your wishes while avoiding unnecessary medical procedures?

  • Communicate your wishes with your surrogate AND family.  Some people do not even talk with their surrogate about their end of life wishes or experiences. A good discussion with these people will make sure your wishes are known for all, which will reduce the likelihood of family conflict and confirm that the surrogate will be able to enforce your end-of-life wishes.
  • Have a good, specific living will.  We like to use the Empath Choices for Care living will as it is specific and broad at the same time. 
  • Do not use the Florida Statutory living will. Our opinion is that this living will is too vague for many end of life situations - doctors and other caregivers do not like vague documents in the least.
  • Make sure your surrogate and family has a copy of your living will. This only makes sense. At our office, we scan in all estate planning documents so our clients can share them easily with their family.
  • Review your living will often to make sure it meets your wishes.
  • Confirm that your healthcare surrogate is strong enough to enforce your wishes, which could mean dealing with bad medical advice or overly emotional family members.
  • Make sure you know the difference between a living will and a Do Not Resuscitate Order. Among other differences, the living will is prepared by your attorney while the Do Not Resuscitate Order is signed by your physician. We also have an FAQ on the differences between living wills and Do Not Resuscitate Orders in Florida.

I have spent many, many hours studying living wills and end of life issues in order to help my clients the best I can. If you want a good elder law attorney who knows about living wills and advanced directives, and not one who is just filling out a form, I am glad to help you and your family as part of our incapacity planning.  You are also welcome to attend one of our free monthly seminars on estate planning and Medicaid/asset protection planning as well.

D. Rep DeLoach III
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Estate Planning and Board Certified Elder Law Attorney