When Advance Directives Fail: The Use, Non-Use, and Misuse of Health Care Directives in Florida

I. Introduction

Few estate-planning documents operate at the intersection of law, medicine, family dynamics, and personal autonomy as directly as an advance health care directive. In Florida, these documents are governed principally by Chapter 765, Florida Statutes, and include a designation of health care surrogate, a living will, and certain other expressions of a person’s health care wishes.

Florida defines an “advance directive” broadly as a witnessed written document or oral statement through which a principal gives instructions or expresses desires concerning health care or health information. The statutory definition specifically includes a designation of health care surrogate, a living will, and an anatomical gift. Fla. Stat. § 765.101(1).

That broad definition can itself be a source of confusion.

A Designation of Health Care Surrogate identifies the person authorized to make medical decisions and obtain health information.

A Living Will expresses the patient’s wishes concerning life-prolonging procedures when specified medical conditions exist.

A Do Not Resuscitate Order (“DNRO”), by contrast, is a medical order concerning cardiopulmonary resuscitation. It is not simply another name for a living will.

These distinctions matter enormously in practice. A daughter arriving at an emergency room with her mother’s living will may believe the document means “do not resuscitate.” An assisted-living facility may treat a DNRO as though it prohibits hospitalization or other medical treatment. A family may believe that a health care surrogate can override the wishes of a competent patient. Each proposition is generally wrong under Florida law.

The documents themselves are only part of the solution. An advance directive works only when it is properly drafted, available when needed, understood by the people implementing it, and applied to the circumstances the patient actually faces.

Florida has a particularly important history in this area. From Satz v. Perlmutter and In re Guardianship of Browning to the nationally publicized litigation involving Terri Schiavo, Florida courts have repeatedly confronted the fundamental question underlying advance care planning: Who decides what medical treatment a person receives when the person can no longer speak for himself or herself?

The answer under Florida law begins with the patient.

II. Florida’s Strong Protection of Patient Autonomy

Florida’s law of health care decision-making did not begin with Chapter 765.

In Satz v. Perlmutter, 379 So. 2d 359 (Fla. 1980), the Florida Supreme Court recognized the constitutional right of a competent terminally ill adult to refuse extraordinary medical treatment. The patient suffered from amyotrophic lateral sclerosis and depended on a mechanical respirator. The Court concluded that, under the circumstances presented, his constitutional rights permitted him to require withdrawal of the respirator.

A decade later, the Florida Supreme Court went significantly further in In re Guardianship of Browning, 568 So. 2d 4 (Fla. 1990). The Court held that a competent person possesses a constitutional right to choose or refuse medical treatment and that incapacity does not extinguish that right. When the individual can no longer exercise the right personally, it may be exercised through an appropriate surrogate applying the patient’s wishes.

This principle is now reflected directly in Chapter 765.

Section 765.204 provides that a principal is presumed capable of making his or her own health care decisions unless determined to be incapacitated. More importantly, while the principal has decision-making capacity, the principal’s own wishes control.

That rule is fundamental.

Executing a Designation of Health Care Surrogate does not ordinarily surrender control over one’s medical care. The surrogate is not automatically entitled to substitute his or her judgment for that of a competent principal.

Florida has even permitted a principal to give a surrogate authority that is exercisable immediately, without waiting for incapacity. But immediate authority does not mean that the surrogate outranks a competent principal. The patient’s wishes remain controlling while the patient retains decision-making capacity.

This distinction is sometimes lost in hospitals, assisted-living facilities, nursing homes, and even families.

III. Florida’s Three Documents Are Not Interchangeable

A. Designation of Health Care Surrogate

Florida permits a competent adult to designate another competent adult to make health care decisions and receive health information.

Under section 765.202, the written designation must generally be signed by the principal in the presence of two subscribing adult witnesses. The designated surrogate may not serve as a witness, and at least one witness must be neither the principal’s spouse nor a blood relative. Fla. Stat. § 765.202.

A well-drafted designation can authorize considerably more than consent to surgery.

Florida’s definition of “health care decision” includes decisions concerning consent to, refusal of, and withdrawal of health care; life-prolonging procedures; mental health treatment unless restricted by the directive; access to health information; applications for governmental benefits to pay for health care; and anatomical gifts. Fla. Stat. § 765.101(6).

The surrogate’s role, however, is not to decide what the surrogate wants.

Section 765.205 requires the surrogate to consult with health care providers and make the decisions the surrogate believes the principal would have made under the circumstances. Only when there is no indication of what the principal would have chosen may the surrogate resort to a best-interest analysis.

That is the difference between substituted judgment and substituting one’s own judgment.

The distinction becomes crucial when adult children disagree about a parent’s care or when a spouse’s personal, religious, emotional, or financial preferences differ from the patient’s expressed wishes.

B. Living Will

A Florida living will serves a different purpose.

Section 765.302 permits a competent adult to direct the providing, withholding, or withdrawal of life-prolonging procedures when the individual is incapacitated and has:

1. a terminal condition;
2. an end-stage condition; or
3. a persistent vegetative state.

A Florida living will must generally be signed in the presence of two subscribing witnesses, at least one of whom is neither the principal’s spouse nor a blood relative. Fla. Stat. § 765.302.

Florida even provides a suggested statutory form in section 765.303, but the statute expressly states that a living will need not use that precise form.

This presents an important drafting opportunity.

A statutory form may establish the basic legal instruction, but thoughtful planning should also help the surrogate and medical providers understand the client’s values. The question is rarely as simple as “Do you want to be kept alive?”

Clients usually care about much more nuanced considerations:

• Is there a meaningful possibility of recovery?
• Can the person communicate?
• Can the person recognize family members?
• Is the condition temporary or permanent?
• What level of cognitive impairment would the person consider intolerable?
• How does the client feel about artificial nutrition and hydration?
• Would the answer change if treatment were temporary rather than permanent?
• Does the client prioritize longevity, independence, consciousness, comfort, or some combination?
• What role should pain management and palliative care play?

A directive that answers only a medical procedure question can fail when the client’s real concern is quality of life.

C. Florida’s DNRO

Perhaps the most dangerous practical misunderstanding is the assumption that a living will and a DNRO mean the same thing.

They do not.

Florida’s Do Not Resuscitate Order is governed separately under section 401.45, Florida Statutes, and administrative rules applicable to emergency medical services. Florida uses Department of Health Form 1896. The current form specifically directs that cardiopulmonary resuscitation—including interventions such as artificial ventilation, cardiac compression, endotracheal intubation, and defibrillation—be withheld or withdrawn when the patient experiences cardiopulmonary arrest.

A DNRO does not, merely by existing, mean:

• do not hospitalize;
• do not give antibiotics;
• do not give oxygen;
• do not treat pain;
• do not treat an infection;
• do not provide food or fluids;
• provide only hospice care; or
• discontinue all medical treatment.

It addresses resuscitation.

Likewise, a living will does not automatically function as an out-of-hospital DNRO.

For elderly and chronically ill clients, lawyers should explain this distinction explicitly rather than assuming the physician or facility will do so.

IV. The Most Important Rule: A Competent Patient Still Decides

One of the recurring misuses of advance directives occurs before the directive should be controlling at all.

Florida law presumes that the principal has capacity. Section 765.204 states expressly that while the principal possesses decision-making capacity, the principal’s wishes are controlling.

Accordingly, advanced age does not equal incapacity.

A diagnosis of dementia does not automatically equal incapacity.

Residence in assisted living does not equal incapacity.

Placement in a nursing facility does not equal incapacity.

A guardianship petition does not itself equal incapacity.

Even involuntary hospitalization for mental illness or the existence of an intellectual disability does not permit incapacity simply to be inferred. Fla. Stat. § 765.204.

Capacity is functional and decision-specific.

An 88-year-old patient may have difficulty managing investments yet still understand that a physician recommends surgery, appreciate the principal risks and alternatives, and communicate a knowing treatment choice.

When that patient can make the health care decision, the surrogate is not entitled to overrule it merely because the surrogate thinks another decision is wiser.

This principle should be stated directly in well-drafted documents and explained to both the client and the designated surrogate.

V. What Happens When There Is No Advance Directive?

Florida law provides a default system, but relying on it is poor planning.

Under section 765.401, if an incapacitated patient has no effective advance directive or available designated surrogate, Florida authorizes a “proxy” to make health care decisions.

The statute establishes the following priority:

1. a judicially appointed guardian or qualifying guardian advocate;
2. the patient’s spouse;
3. an adult child, or a majority of reasonably available adult children;
4. a parent;
5. an adult sibling, or a majority of reasonably available adult siblings;
6. an adult relative who has demonstrated special care and concern and is familiar with the patient’s health, activities, and beliefs;
7. a close friend; and
8. in specified circumstances, a qualifying clinical social worker or graduate of a court-approved guardianship program.

Fla. Stat. § 765.401.

At first glance, this hierarchy may make an advance directive seem unnecessary.

It is not.

Consider a widowed parent with four children. Without a designated surrogate, the statute may require a majority of the reasonably available adult children. If two children favor aggressive treatment and two favor comfort care, the problem has become substantially more difficult.

Consider a separated but still legally married patient who has lived apart from a spouse for years and whose adult child has actually provided care. Unless another legal principle intervenes, the estranged spouse occupies a higher statutory proxy priority than the child.

Or consider an unmarried individual whose closest relationship is with a longtime partner or friend but who has living parents or siblings.

The statutory hierarchy is a safety net.

It is not a substitute for choosing the person you trust.

VI. Florida Requires the Surrogate or Proxy to Follow the Patient—not the Family

A family meeting can create the impression that medical decisions should be made democratically. Florida law is more precise.

A designated surrogate must follow the principal’s instructions and make the decisions the surrogate believes the principal would have made. Fla. Stat. § 765.205.

A statutory proxy operates under substantially the same substituted-judgment concept. Section 765.401 provides that the decision must be based on what the proxy reasonably believes the patient would have chosen. When the patient’s choice cannot be determined, the proxy may consider the patient’s best interest. For withholding or withdrawing life-prolonging procedures, the statute imposes additional evidentiary requirements.

Thus:

The loudest family member does not control.

The family member paying the bills does not automatically control.

The person who visits most often does not automatically control.

And even the legally authorized surrogate does not have unrestricted discretion.

The object of the inquiry remains the patient’s wishes.

Florida law also provides a remedy when that principle breaks down. Under section 765.105, family members, the health care facility, the primary physician, and other directly affected interested persons may seek expedited judicial review when, among other things, a surrogate’s decision conflicts with the patient’s known desires, the directive is ambiguous, the surrogate has abused the surrogate’s authority, or the patient actually possesses sufficient capacity to make the decision personally.

VII. Florida’s Living Will Requires More Than Simply Producing the Document

Another misconception is that presenting a living will automatically requires a physician to stop treatment.

Florida law is more structured.

Before proceeding under the living will, the applicable requirements of Chapter 765 must be satisfied. Section 765.304 requires consideration of whether the principal lacks a reasonable medical probability of recovering capacity and whether the principal has a terminal condition, end-stage condition, or persistent vegetative state. Any limitations or conditions stated in the directive must also be considered and satisfied.

This is why a living will should not be casually described as a “pull the plug” document.

Its operation depends upon medical findings and the language chosen by the principal.

The statutory living-will form also preserves comfort care. Florida’s suggested language expressly contemplates allowing natural death while continuing medication and medical procedures needed to provide comfort or alleviate pain.

Florida separately protects access to pain management and palliative care. Section 765.1103 requires information concerning pain management and palliative care to be provided in specified circumstances and directs regulated providers and facilities to comply, as appropriate, with requests for such care.

A decision not to artificially prolong dying therefore should not be confused with a decision not to care for the patient.

VIII. Florida’s Experience With Terri Schiavo Demonstrates the Cost of Uncertainty

No discussion of Florida advance directives is complete without mentioning Theresa “Terri” Schiavo.

Schiavo suffered catastrophic brain injury in 1990 and remained in a persistent vegetative state. She had not left a written advance directive. Years of litigation followed concerning whether artificial nutrition and hydration should be withdrawn and, critically, what she would have wanted.

The litigation eventually reached the Florida Supreme Court after the Legislature enacted special legislation allowing the Governor to intervene following a final judicial determination directing withdrawal of life-prolonging procedures. The Florida Supreme Court ultimately struck down the legislation on separation-of-powers grounds.

The legal history is complex, but the planning lesson is remarkably simple:

When patients do not document and discuss their wishes, the people they love may be forced to prove those wishes later.

No document can eliminate every dispute. A clear living will, however, can transform the issue from “What do we think Mom would have wanted?” into “How do we implement what Mom told us she wanted?”

Florida even gives the living will substantial evidentiary significance: a properly executed living will establishes a rebuttable presumption of clear and convincing evidence of the principal’s wishes. Fla. Stat. § 765.302(3).

That is a powerful reason to put important wishes in writing.

IX. The Directive Nobody Can Find May Be Nearly as Bad as No Directive

Florida places responsibility on the principal to notify the primary physician of the existence of a living will. Once notified, the physician or health care facility must promptly make the living will or a copy part of the medical record. Fla. Stat. § 765.302(2).

Yet clients routinely execute documents, place the originals in a binder or safe, and assume the planning is complete.

A better practice is to create a distribution strategy.

At a minimum, clients should consider providing appropriate documents to:

• the primary health care surrogate;
• the alternate surrogate;
• the primary-care physician;
• relevant specialists;
• the assisted-living or nursing facility, if applicable;
• the hospital system through its electronic record portal, when available;
• close family members who are likely to become involved in an emergency.

The client should also be able to retrieve the documents electronically.

A beautifully drafted directive locked in a safe-deposit box at 2:00 a.m. on Sunday does little good to an emergency-room physician.

X. Divorce, Old Documents, and Forgotten Surrogates

Advance directives should not be treated as permanent documents.

Florida permits a competent principal to amend or revoke an advance directive in several ways, including a signed and dated writing, physical cancellation or destruction, an oral expression of intent, or execution of a materially different later directive. Fla. Stat. § 765.104.

Florida also generally provides that dissolution or annulment of the principal’s marriage revokes the designation of the former spouse as health care surrogate unless the directive or dissolution order provides otherwise.

But divorce is only one reason for review.

Clients should reconsider their documents when:

• the surrogate dies or becomes incapacitated;
• the relationship with the surrogate changes;
• the client marries or divorces;
• an adult child becomes the more appropriate decision-maker;
• the client’s health materially changes;
• the client receives a significant diagnosis;
• the client’s views concerning artificial nutrition, ventilation, dialysis, or other treatment change;
• the client moves to another state; or
• the documents are old enough that medical providers may question whether they still reflect current wishes.

Florida law recognizes an advance directive executed in another state if it was executed in compliance with the law of that state or Florida law. Fla. Stat. § 765.112.

Legal validity, however, does not guarantee clinical familiarity. A Florida hospital may technically be required to recognize a valid New York or California directive while nevertheless taking additional time to determine what an unfamiliar document means.

For Florida residents, Florida-specific documents generally reduce avoidable friction.

XI. What If the Doctor or Facility Refuses to Follow the Directive?

The existence of an advance directive does not make disagreement impossible.

Florida nevertheless provides significant protections for properly implemented health care decisions. Section 765.109 generally immunizes health care facilities, providers, surrogates, and proxies from criminal and civil liability when they act in accordance with Chapter 765, subject to the statute’s good-faith standard.

Florida also addresses facilities or providers that decline to follow a patient’s directive or an authorized surrogate’s or proxy’s treatment decision for moral or ethical reasons.

Section 765.1105 generally requires reasonable efforts to transfer the patient to a provider or facility willing to comply. When refusal is based on qualifying moral or ethical beliefs, the statute generally requires the provider or facility, within seven days, either to accomplish the transfer or, if the patient has not been transferred, carry out the patient’s or authorized decision-maker’s wishes unless judicial review under section 765.105 applies.

The practical lesson is important.

A provider’s statement that “our policy does not allow that” may not end the legal inquiry.

XII. Drafting Problems: Too Little Direction and Too Much Direction

Florida lawyers face the same fundamental drafting problem that exists nationally: directives can fail because they say too little or because they attempt to say too much.

Too Little

Statements such as:

“I don’t want extraordinary measures.”

sound understandable to a client but may provide little clinical guidance.

What is extraordinary?

A ventilator for thirty minutes during routine surgery?

Dialysis for three days following a reversible kidney injury?

A feeding tube for three weeks during recovery from a stroke?

Intravenous antibiotics?

Surgery?

Blood transfusion?

A directive should provide enough context that the surrogate can translate the client’s values into an actual medical decision.

Too Much

The opposite problem occurs when a document attempts to predict every conceivable medical scenario.

Medical technology changes. Diagnoses overlap. Treatments that are burdensome in one circumstance may be temporary and restorative in another.

A directive drafted as a rigid checklist can become obsolete or produce an outcome the client never intended.

The better approach is often a combination of:

1. legally operative instructions;
2. carefully defined triggering conditions;
3. authority granted to a trusted surrogate;
4. statements concerning the client’s goals and values; and
5. sufficient flexibility for the surrogate and physicians to address circumstances the document could not reasonably anticipate.

The best health care directive is not necessarily the longest.

It is the document most likely to produce the decision the client would have made.

XIII. Five Practical Recommendations for Florida Clients

1. Execute Both a Health Care Surrogate Designation and a Living Will

They perform different functions.

The surrogate answers who decides.

The living will helps answer what the patient wants when the statutory circumstances arise.

2. Discuss the Documents With the Surrogate

A surrogate should not first learn about the client’s philosophy of medical care while standing in an intensive-care unit.

Ask the client:

“If your surrogate had to make this decision tonight, would he or she know what you would want?”

If the answer is no, the planning is incomplete.

3. Understand Whether a DNRO Is Appropriate

A DNRO ordinarily becomes relevant because of a person’s present medical circumstances, not merely because the person is elderly.

Clients should discuss the issue with their physician when medically appropriate.

4. Make the Documents Available

Paper documents should be distributed appropriately, and electronic copies should be accessible.

Clients entering assisted living, memory care, or skilled nursing should confirm that the facility has incorporated the current documents into the medical record.

5. Review the Plan After Major Life or Health Changes

Advance care planning is a process, not a single signing ceremony.

A client’s wishes at age 45 may differ from those at 85 after experiencing serious illness firsthand.

XIV. The Attorney’s Role Should Extend Beyond Witnessing a Signature

Florida estate-planning attorneys are uniquely positioned to bridge the gap between legal validity and clinical usefulness.

Preparing a document that technically complies with section 765.202 or section 765.302 is relatively straightforward.

Preparing a plan that actually works is more demanding.

The attorney should help the client distinguish among:

• incapacity and physical disability;
• a surrogate and a proxy;
• a living will and a DNRO;
• withholding treatment and withholding comfort;
• substituted judgment and best-interest decision-making;
• temporary treatment and permanent life support;
• artificial nutrition and ordinary feeding;
• the authority of a surrogate and the continuing rights of a competent principal.

The attorney should also encourage the client to involve physicians when medical consequences need explanation.

Lawyers should explain legal choices. Physicians should explain medical consequences. Clients should then determine what those consequences mean in light of their own values.

That collaboration produces better directives than either profession can produce in isolation.

XV. Conclusion

Florida has one of the country’s most developed histories concerning the right to refuse medical treatment. Its courts recognized the right of competent patients to refuse treatment, extended that protection to incapacitated persons through substituted decision-making, and its Legislature created an extensive statutory framework governing advance directives, surrogates, proxies, living wills, and provider responsibilities.

Yet statutes and forms cannot eliminate the central problem.

Advance directives succeed only when the person preparing them has meaningfully considered the decisions involved, chosen the right decision-maker, communicated those wishes, and made the documents available when a crisis occurs.

The goal therefore should not be simply to ask:

“Do you have a living will?”

A better set of questions is:

Does your family understand what you want?

Does the person you selected understand the responsibility?

Would your doctors know where to find the document?

Does the document distinguish a living will from a DNRO?

Does it provide meaningful guidance without attempting to predict every possible medical circumstance?

And perhaps most importantly:

If you could no longer speak tomorrow, would the people caring for you know how you would want to live—and when you would want to be allowed to die naturally?

That is the real purpose of advance care planning in Florida.

This article is intended for educational purposes and provides a general discussion of Florida law. It is not a substitute for legal advice concerning an individual’s particular circumstances. Statutes, regulations, forms, and case law should be reviewed for changes before reliance or publication.