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Living Will in Florida: Requirements, the Health Care Surrogate, and Witness Rules
Florida uses two documents: a living will for end-of-life treatment wishes, and a designation of health care surrogate to name who decides.
By naveen · Updated · How we research our guides
What to know
- A Florida living will must be signed in front of two subscribing witnesses, at least one of whom is neither your parent's spouse nor a blood relative (Florida Statutes §765.302).
- A designation of health care surrogate needs two adult witnesses, and the surrogate can't be one of them.
- Both chapter 765 sections call for witnesses; neither mentions a notary.
- If there's no surrogate or living will, Florida law sets a priority list of who may decide, starting with a guardian, then a spouse, then adult children.
- Retirement Checklist puts these documents in order with everything else your family needs to settle.
A living will in Florida is valid when your parent signs it in front of two subscribing witnesses, at least one of whom is neither their spouse nor a blood relative. That's the rule in Florida Statutes §765.302. Florida also has a designation of health care surrogate, a separate document with its own witness rules.
What is a living will in Florida?
It's a written declaration in which your parent directs whether life-prolonging procedures are provided, withheld or withdrawn if they have a terminal condition, have an end-stage condition, or are in a persistent vegetative state. Any competent adult may make one (§765.302).
That scope matters. A Florida living will speaks to those three situations; it isn't a general set of instructions for every medical decision. Florida law gives it weight within that scope: a living will made under §765.302 "establishes a rebuttable presumption of clear and convincing evidence of the principal's wishes."
Florida's definitions also recognize an oral version. Under §765.101, a living will can be a witnessed written document or "a witnessed oral statement" of your parent's instructions about life-prolonging procedures. For how living wills relate to other advance directives, see our guide to advance directives, living wills and medical power of attorney.
What is a designation of health care surrogate?
It's the document in which your parent names someone, the surrogate, "to make health care decisions for a principal or receive health information on behalf of a principal, or both" (§765.202). It covers far more ground than a living will: any health care decision, not only end-of-life choices.
Three details are worth knowing:
- Your parent can name an alternate surrogate, who steps in if the first is unwilling, unable or not reasonably available.
- Your parent can make the surrogate's authority, including access to health information, "exercisable immediately without the necessity for a determination of incapacity."
- Unless it states an end date, the designation lasts until your parent revokes it.
How do you sign them in Florida?
Your parent signs each one in front of two subscribing witnesses, and at least one witness must be neither your parent's spouse nor a blood relative.
| Living will | Designation of health care surrogate | |
|---|---|---|
| What it does | Life-prolonging procedure wishes in three situations | Names who makes health care decisions |
| Witnesses | Two subscribing witnesses (§765.302) | Two subscribing adult witnesses (§765.202) |
| Witness restriction | At least one is neither a spouse nor a blood relative | Surrogate can't witness; at least one is neither a spouse nor a blood relative |
| If your parent can't sign | One witness signs your parent's name in their presence, at their direction | Another person signs, at your parent's direction, in front of the witnesses |
| After signing | Your parent arranges to notify their primary physician | The surrogate gets an exact copy |
Neither section mentions a notary. The witnesses are the formality, which is why choosing them carefully matters.
Who can't be a witness in Florida?
For both documents, at least one of the two witnesses must be neither your parent's spouse nor a blood relative. For the surrogate designation, the person named as surrogate "shall not act as witness," and both witnesses must be adults.
Under those rules, a blood relative can fill one witness spot, but not both. If the surrogate is your parent's eldest child, a different relative plus an unrelated adult would meet the rules; two relatives wouldn't.
Is there an official Florida form?
Yes, suggested ones: Florida prints a form for each document in the statute and makes both optional. A living will "may, BUT NEED NOT, be in the following form" (§765.303), and a surrogate designation "may, but need not be, in the following form" (§765.203).
The suggested living will form asks your parent to initial which situations it covers: a terminal condition, an end-stage condition, or a persistent vegetative state. Its directions then apply only if your parent's primary physician and another consulting physician have determined there is no reasonable medical probability of recovery. The suggested surrogate form includes separate initials for receiving health information and for making health care decisions. Whatever form your parent uses, the witness rules still apply.
When does the surrogate start making decisions?
When a physician determines your parent can't decide, unless your parent chose immediate authority. Florida starts from the opposite assumption: your parent "is presumed to be capable of making health care decisions," and "While a principal has decisionmaking capacity, the principal's wishes are controlling" (§765.204).
If capacity is in question, the primary or attending physician evaluates it and records the conclusion. If that physician has doubts, another physician must also evaluate. When the surrogate's authority begins, the facility notifies the surrogate in writing.
If you need to speak with your parent's doctors before any of that, see our guide to HIPAA authorization, or consider whether your parent wants the surrogate's authority to be immediate.
What happens if your parent has neither document?
A proxy decides, taken from a priority list in Florida law. Under §765.401, if your parent hasn't signed an advance directive or named a surrogate, or the surrogate isn't available, decisions may be made by the first available person in this order:
- a court-appointed guardian authorized to consent to medical treatment;
- your parent's spouse;
- an adult child, or a majority of the reasonably available adult children;
- a parent of your parent;
- an adult sibling, or a majority of the reasonably available adult siblings;
- an adult relative who has shown special care and concern and kept regular contact;
- a close friend;
- a licensed clinical social worker selected by the provider's bioethics committee.
Where several siblings share a place on that list, Florida asks for a majority of those reasonably available. A surrogate designation lets your parent choose instead; our guide to siblings and caring for a parent covers dividing the work when several of you are involved.
How do you change or revoke them?
Your parent can amend or revoke an advance directive at any time while competent, in any of four ways (§765.104):
- a signed, dated writing;
- physically cancelling or destroying it, or having someone do so in their presence and at their direction;
- an oral statement of intent to amend or revoke;
- a later advance directive that is materially different.
A change takes effect when it's communicated to the surrogate or the health care provider. Divorce or annulment revokes a former spouse's designation as surrogate, unless the document or court order says otherwise.
Who needs a copy?
The surrogate does, by law: "An exact copy of the instrument shall be provided to the surrogate" (§765.202). For the living will, "It is the responsibility of the principal to provide for notification to her or his primary physician that the living will has been made" (§765.302). If your parent is incapacitated when admitted to a facility, anyone may notify the physician or facility, which must then make the living will part of the medical record.
What questions are worth asking before your parent signs?
- Who should be the surrogate, and who is the alternate?
- Should the surrogate's authority be immediate or wait for incapacity?
- Which of the three living will situations does your parent want to cover?
- Who are the two witnesses, and is one of them unrelated?
- Who tells the primary physician, and who keeps copies?
Frequently asked questions
Does a living will need to be notarized in Florida?
The living will statute, Florida Statutes §765.302, calls for your parent's signature in front of two subscribing witnesses, at least one of whom is neither a spouse nor a blood relative. It doesn't mention a notary. The surrogate designation statute, §765.202, likewise calls for two adult witnesses and doesn't mention a notary.
Who can witness a living will in Florida?
Any two adults, as long as at least one is neither your parent's spouse nor a blood relative. For the separate designation of health care surrogate, the named surrogate can't be a witness. If your parent can't physically sign a living will, one of the witnesses signs your parent's name at their direction.
What is the difference between a living will and a health care surrogate in Florida?
A living will records your parent's wishes about life-prolonging procedures in three situations: a terminal condition, an end-stage condition, or a persistent vegetative state. A designation of health care surrogate names a person to make health care decisions generally, and to receive health information, on your parent's behalf.
Is there a Florida living will form?
Yes, a suggested one. Florida Statutes §765.303 says a living will may, but need not, be in the form it sets out, and §765.203 does the same for the designation of health care surrogate. Using a different form is allowed if it meets the witness rules.
Who makes medical decisions in Florida if there is no surrogate?
A proxy, chosen in the order set by §765.401: a court-appointed guardian, then the spouse, then an adult child or a majority of the reasonably available adult children, then a parent, then adult siblings, then a caring adult relative, then a close friend, then a clinical social worker.
Can my parent change their living will later?
Yes, at any time while competent: by a signed and dated writing, by destroying it or having it destroyed at their direction, by saying so, or by signing a materially different directive. The change takes effect once it's communicated to the surrogate or the health care provider.
Getting started
These documents are time-sensitive, because they need your parent's signature while they can still give it. The plan this site builds asks four questions, including which state your parents live in, and puts the steps that matter most for your family in order, including a Florida power of attorney for finances. It's free and takes about 90 seconds.
Related guides
Sources
- Florida Statutes §765.302, Procedure for making a living will: witnesses, scope, notifying the physician.
- Florida Statutes §765.202, Designation of a health care surrogate: witnesses, alternates, immediate authority.
- Florida Statutes chapter 765, full text: definitions, revocation, suggested forms, capacity, and the proxy list.
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