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The Importance of Health Care Advance Directives in Florida for Incapacitated Individuals

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Tampa Probate Lawyer / Blog / Legal / The Importance of Health Care Advance Directives in Florida for Incapacitated Individuals

The Importance of Health Care Advance Directives in Florida for Incapacitated Individuals


Making informed decisions about our health is crucial. It’s challenging enough when we’re in a position to voice our wishes. But what happens if we’re incapacitated and cannot communicate our healthcare preferences? Worse still, what if a distant relative or an estranged spouse tries to make those decisions for us?

Understanding Advance Directives in Florida

Florida recognizes the importance of advance directives, legal tools that empower individuals to designate trusted surrogates to make medical decisions on their behalf. The two main components of advance directives are:

1. Living Will: This document outlines an individual’s specific preferences regarding life-prolonging treatments under critical health situations. Not only does it ensure adherence to the individual’s wishes, but it also aids in preventing potential family disputes.

2. Health Care Surrogate Designation: This permits the individual (the principal) to officially nominate someone to make medical decisions on their behalf when they’re incapacitated.

The Significance of Having an Advance Directive

With an advance directive in place, individuals can control their medical preferences and end of life decisions, as well as who makes those decisions should they be unable to do so.

The Implications of Lacking Advance Directives

If an individual becomes incapacitated without an advance directive in place, healthcare providers in Florida turn to the Florida Statute Section 765.401 to determine a proxy decision-maker. Section 765.401 creates a prioritized list of potential decision-makers for the individual. The search continues down the list until a suitable individual is identified.

There are inherent risks to this statutorily-driven approach:

  • The individual with priority might not be the person the incapacitated individual would have selected.
  • In urgent medical situations, the time taken to determine who has the authority to be the proxy could delay essential care to the incapacitated individual.
  • The lack of a designated surrogate and Living Will may put your loved ones in compromising positions having to make critical decisions regarding your intentions without clearly knowing them. 


Advance directives act as a beacon, guiding healthcare providers and your loved ones to deliver care aligned with an individual’s wishes. Preparing these documents early on is pivotal, as it upholds our autonomy even in incapacitation. Florida law requires your Living Will and Health Care Surrogate Designation to be prepared with certain formalities to be valid. Contact the Messina Law Group today and let us help ensure your end of life wishes are honored.

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