Living Wills
Portia B. Scott, J.D., L.L.M. • August 1, 2022

Living Wills: One of Florida’s Available Advance Directives

Florida Statutes specifically authorizes a person to execute a Living Will.  Interestingly, the Living Will Statute is under the general sections of law regarding Civil Rights. This implies very, very strongly that the right to have a Living Will is a Civil Right held by Florida resident. But, before we get to that, What Is A Living Will anyway?

 

Briefly, a Living Will is a declaration by a person (reasonably, though not particularly imaginatively called “the declarant”) indicating ahead of time what his or her wishes would be under certain specifically stated situations in the event he or she is not able to express those wishes when the time comes. The Living Will creates a rebuttable presumption to the clear and convincing legal standard of the declarant’s wishes and direction. (Okay, maybe that wasn’t so brief.)

 

What conditions? Well, end of life conditions are generally the ones we are talking about here. So, if the patient has a terminal condition, an end-stage condition, is in a “persistent vegetative state” or if recovery is unlikely, these are conditions which must be determined by the patient’s primary doctor and another doctor. 

 

Let’s use the example of a terminal condition. The patient is non-communicative and dying of cancer, all treatment options have been exhausted. The death is soon, possibly in the next few days or even hours. Those doctors each examine the patient and come to the same conclusion: death is near. This is a medical determination of one of the conditions which can trigger the use of the Living Will.

 

Now, on top of the poor patient being at death’s door, he develops appendicitis and they need to come out, immediately.

 

Knowing there is a Living Will, before the surgery commences which will not save the patient’s life from the cancer killing him, the doctors look to the Living Will. In it, the doctor sees a clear, unambiguous statement contemplating this scenario. The declarant thought about it and opted to skip the appendectomy and just asked for pain relief. 

 

Likewise, other unpleasant circumstances can arise and be dealt with as well. Further, the patient, through the Living Will, may opt to have a feeding tube removed and other changes from on-going care, once the determination has been made.

 
Unlike a Medical Power of Attorney, which authorizes someone else to make decisions for the declarant, a Living Will is the declarant’s own decision, just pre-made. (Also, a Medical “POA” usually empowers another person not only end of life decisions but also other areas of medical care.)

 

The beauty of a Living Will is that the patient/declarant has the opportunity to consider his or her wishes before the emergency is at hand and, additionally, provides the patient’s loved ones with a roadmap as to what the patient would want, if he or she could speak. The Living Will represents the cool-headed decisions of the declarant.

 

Importantly, assuming the patient is in his or her right mind and capable of making decisions otherwise (that is, not in a coma), the patient can change her mind and opt for “heroic” measures to be taken to save her life. She can change her mind, if she wants.

 

Living Wills are a very useful tool and one of the regular documents created for those of us contemplating our own path. They are especially helpful if the declarant has not appointed a Health Care Surrogate or Proxy - but that is another article.

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The time for using unregulated Lady Bird Deeds might be ending.

By By Portia B. Scott, J.D., L.L.M. • September 24, 2026
The time for using unregulated Lady Bird Deeds might be ending.

MY MOTHER, THE GRAMMAR TEACHER, WOULD BE SO PROUD: We Have Our Own "Comma" Case

By Portia B. Scott, J.D., L.L.M. • July 22, 2026
One of the most absurd things for law students to grasp in that all-important first year, is the idea of what can be considered "ambiguous." (Ambiguity is "an uncertainty of meaning or intention, as in a contractual term or statutory provision.") If language is deemed "ambiguous," what happens next depends on where this ambiguity is found. The ambiguity can be subject to interpretation of a Court - if it is in a statute. If the Court has to use interpretation, there are several tools they can use to derive meaning and intent from the writers of the statute. This search for "Legislative intent" is sometimes easy if there is a part of the statute stating specifically what the Legislature was trying to do. Without that, however, judges will look at what the plain and simple language would mean. If that does not help, then they can look at the surrounding language, the other terms, what might be excluded, what would make the language harmonious with the other laws on the topic... All kinds of factors are examined to determine what the law is trying to say. However, if the ambiguity is found in a contract, the options are different and depend on whether the ambiguity is an obvious mistake ("Art is the Buyer" and then, later "The Buyer, Bert" is written in the same contract) or whether it is a more sneaky ambiguity. Here is where the comma comes into play. The Tariff of 1872 misplaced a comma, resulting in fruits not being subject to the tax. The tariff was trying to say that fruits and fruit plants would be subject to the tariff, but, by placing a comma where it did not belong, fruits become tax free and only fruit-bearing plants were subject to the Tariff. Another is a case where there would be no overtime payments for work done for "...drying, marketing, storing, packing for shipment or distribution" of foods. Because there was no comma between "shipment" and "distribution," the Court found it questionable if "shipment and distribution" were one joint act or two separate ones. The result? Workers got their overtime payments. Now, we have a case, decided July 22, 2026 by our appellate court, that a comma found between "construed according to the laws of the State of Florida" and "with venue in Collier County," created an ambiguity allowing venue to be set in another County (Martin). The comma controlled and there is an ambiguity, allowing the action to be filed in Martin County, rather than Collier. The benefits of filing in one county verses another, well, that would be an entirely different article.  Just remember: Watch those punctuation marks folks! Ambiguities may be found everywhere!