Living Wills

Jill Ginsberg and David Shulman discuss Living Wills in Florida.

David: Hello, everyone. I’m David Shulman of the law firm of Ginsburg Shulman. I’m here with my partner, Jill Ginsburg, and we’re in estate planning, probate, guardianship and trust administration and elder law firm. And this week we’re going to talk about living wills. Jill, what is a living will?

Jill: A Living Will is a document that lets people know basically how you want to end your life when the time comes.

I don’t mean in terms of euthanasia or any of those things. What I do mean is in terms of giving advice to those people who are treating you, and also allowing the people who are perhaps agents on your behalf to know really what you want.

David: So in Florida, there are three different circumstances in which you can decide or which you can express your wishes that you no longer want to be artificially prolonged by machines.

One is a terminal condition, then there is an end stage condition, [00:01:00] And the final one is the persistent vegetative state. And if you remember the Terri Schiavo case, Terri Schiavo was in a persistent vegetative state for over a decade. And there’s an argument on whether or not she would want to be disconnected between her husband and her parents.

And what a living will does, it lets your loved ones know what your wishes may be. Now, how is that different from a DNR?

Jill: So, David, a DNR is basically a document. First of all, we don’t do DNRs. They’re not executed by attorneys. They’re executed by either hospital people, hospital administrators, or by doctors.

And they’re executed for that particular situation. And that’s a basically a do not resuscitate order, which is a little bit different than the living will, which basically tells them you don’t want to be resuscitated. In that particular situation only. So the difference between that and a living will is the [00:02:00] DNR is specific only to that situation and not drafted by an attorney or somebody else.

And a living will is basically, I wouldn’t say a blanket, but basically covers your life and is executed by yourself. An attorney or somebody is of that nature.

David: I know that living wills are very popular among my clients, just our clients, just in my experience, I’d say over 99 percent of my clients pick at least persistent vegetative state and terminal condition or end stage condition saying that they no longer want to be prolonged.

There may be, there’s a very small percentage, that are specific religious beliefs that don’t, but it’s really something that everyone wants to express their wishes for. Now, what happens if someone doesn’t have a living will and they’re in that condition?

Jill: Well, that’s unfortunate, David. It really is. And it’s the Terri Schiavo case.

Where you just said where people fought for years [00:03:00] over this poor woman as she sat there and you have cases where people have to get guardianships, which we’ve discussed in other videos because there’s nobody to make that particular decision and they knew that that decision wanted to be made. Or there’s the really worst case scenario where you wanted a decision to be made and the complete opposite decision is going to be made.

Sometimes you’re going to be resuscitated because the doctors don’t know what you want and they want to avoid liability. So they’re going to do everything they can to keep you alive.

David: So the one important thing for people to know, it’s really if there’s no reasonable medical possibility of recovery. Sometimes people say, Oh, if I stubbed my toe, I don’t want my Children to pull the plug on me to get all the money.

Jill: Basically, one you’re incapacitated, obviously, if you can make your own decisions, you’re going to be making your own decisions and under 7 65 303-

David: Of those statutes.

Jill: Florida statutes, he [00:04:00] didn’t let me get there. Of the Florida statutes, these statutes basically give you guidelines. They don’t tell you exactly what’s going on, but they give you guidelines. So the guidelines are, you’re incapacitated, and basically there’s no reasonable medical probability of your recovery from such condition. You’re not going to recover. It’s basically the three day rule.

If you’re going to die within three days, then you’re not going to recover and there’s no reason for you to be resuscitated.

David: And another one, one final thing, is another option on the living will, is whether or not the person wants to withhold nutrition and hydration. It’s food and water, because sometimes they’re the only thing that’s keeping you alive.

It’s not medicine that’s keeping you alive. It’s a machine that’s feeding you. And people say, look, if I’m in a persistent vegetative state, if there’s no brain activity, then maybe disconnect the nutrition and hydration.

Jill: That’s also one of the options on a health care surrogate, which is something else [00:05:00] that we’ve discussed.

So definitely you want to do both of those things because you don’t want to have, you know, not be resuscitated, yet they’re going to give you food. So, yes, you clearly want to make sure that your treatments are in cohesion with each other.

David: So the healthcare surrogate and the living will work together because the healthcare surrogate, you appoint someone to make these decisions for you and the living will, you express what your wishes are to this person, to your healthcare surrogate, who’s going to make these decisions and to the doctors.

That’s it for this week. Thank you very much and we’ll see you next time.