Living Will in Florida and the Health Care Surrogate

A Florida living will is a written declaration in which a competent adult directs the providing, withholding or withdrawal of life-prolonging procedures if that person has a terminal condition, has an end-stage condition or is in a persistent vegetative state (s. 765.302(1), Fla. Stat., as of October 2026). It must be signed in the presence of two subscribing witnesses, one of whom is neither a spouse nor a blood relative of the signer. Families commonly sign it together with a designation of health care surrogate, which names the person who makes health care decisions when the patient cannot.

On this page

• What a living will covers in Florida
• When a Florida living will takes effect
• Signing requirements in Florida
• How the health care surrogate works with the living will
• If no one was named: Florida’s proxy order
• Common situations in Florida
• Limits and how it fits with the other documents
• Frequently asked questions
• Planning Florida health care documents with Plan Ahead
• Related reading

What a living will covers in Florida

Chapter 765 defines a living will as a witnessed written document executed under s. 765.302, or a witnessed oral statement of the principal’s instructions about life-prolonging procedures (s. 765.101(13), Fla. Stat., as of October 2026). The “principal” is the adult who makes it. Its instructions apply to three defined conditions:

• Terminal condition: a condition caused by injury, disease or illness from which there is no reasonable medical probability of recovery and which, without treatment, can be expected to cause death (s. 765.101(22)).
• End-stage condition: an irreversible condition caused by injury, disease or illness, with progressively severe and permanent deterioration, for which treatment would be ineffective to a reasonable degree of medical probability (s. 765.101(4)).
• Persistent vegetative state: permanent and irreversible unconsciousness, with no voluntary action or cognitive behavior and no ability to communicate or interact purposefully (s. 765.101(15)).

A “life-prolonging procedure” includes artificially provided sustenance and hydration, but not medication or procedures needed for comfort care or to alleviate pain (s. 765.101(12)).

A living will is not a last will: a will “disposes of the person’s property on or after his or her death” (s. 731.201(40)), while a living will addresses life-prolonging procedures during life.

When a Florida living will takes effect

While the principal has decisionmaking capacity, “the principal’s wishes are controlling” (s. 765.204(1), Fla. Stat., as of October 2026). Before anyone proceeds under a living will, it must be determined that the principal has no reasonable medical probability of recovering capacity, has one of the three conditions, and that any limitations or conditions the principal expressed have been carefully considered and satisfied (s. 765.304(2)). The primary physician and at least one other consulting physician must separately examine the patient, and each must sign the findings in the medical record before life-prolonging procedures may be withheld or withdrawn (s. 765.306).

If no surrogate was designated, the primary physician “may proceed as directed by the principal in the living will” (s. 765.304(1)). If the decision to withhold or withdraw is disputed, the physician must wait while review under s. 765.105 is pending, but may proceed if no review is sought within 7 days after the decision (s. 765.304(1)).

Signing requirements in Florida

Living will. The principal signs in the presence of two subscribing witnesses, one of whom is neither a spouse nor a blood relative of the principal (s. 765.302(1), Fla. Stat., as of October 2026). If the principal is physically unable to sign, one of the witnesses signs the principal’s name in the principal’s presence and at the principal’s direction (s. 765.302(1)).

Health care surrogate. The principal signs in the presence of two subscribing adult witnesses, the surrogate may not act as a witness, and at least one witness must be neither the principal’s spouse nor a blood relative (s. 765.202(1) and (2)). An exact copy goes to the surrogate (s. 765.202(1)).

Neither section calls for a notary. The statutory forms in s. 765.303 and s. 765.203 are optional: a living will “may, BUT NEED NOT,” follow the form. A health care provider or facility may not require a patient to sign an advance directive, or to sign a new one on its own forms (s. 765.110(2)).

The principal is responsible for notifying the primary physician that the living will has been made (s. 765.302(2)). A living will signed under s. 765.302 “establishes a rebuttable presumption of clear and convincing evidence of the principal’s wishes” (s. 765.302(3)).

How the health care surrogate works with the living will

A surrogate is a competent adult “expressly designated by a principal to make health care decisions and to receive health information” (s. 765.101(21), Fla. Stat., as of October 2026). The surrogate’s authority reaches “all health care decisions for the principal during the principal’s incapacity” (s. 765.205(1)(a)), and the surrogate must make only the decisions the surrogate believes the principal would have made (s. 765.205(1)(b)).

That authority begins when the primary or attending physician finds that the principal lacks capacity, with a second physician’s evaluation if the first has a question (s. 765.204(2) and (3)), unless the principal made it exercisable immediately (s. 765.202(6)). Even then, while the principal has capacity, the principal’s decisions take precedence over a surrogate’s decisions that present a material conflict (s. 765.204(3)).

• An alternate surrogate may be named if the designation is explicit (s. 765.202(3)).
• Unless the document or the court order provides otherwise, a divorce or annulment revokes the designation of the former spouse as surrogate (s. 765.104(2)).

If no one was named: Florida’s proxy order

When an incapacitated patient has no advance directive, or the named surrogate and alternate are no longer available, a proxy may decide, in this order: a court-appointed guardian authorized to consent to medical treatment; the spouse; an adult child, or a majority of the adult children reasonably available; a parent; an adult sibling, or a majority of the adult siblings reasonably available; a qualifying adult relative; a close friend; and a licensed clinical social worker or court-approved guardianship program graduate selected by the provider’s bioethics committee (s. 765.401(1), Fla. Stat., as of October 2026). A proxy’s decision to withhold or withdraw life-prolonging procedures “must be supported by clear and convincing evidence” that it is the decision the patient would have chosen or, if there is no indication of what the patient would have chosen, that it is in the patient’s best interest (s. 765.401(3)).

Common situations in Florida

• Seasonal residents. An advance directive executed in another state is validly executed for the purposes of chapter 765 if it complied with the law of that state or of Florida (s. 765.112, Fla. Stat., as of October 2026).
• Hospital admission. A health care facility must give each patient written information about advance directive rights and record whether the patient has one (s. 765.110(1)).
• A change of mind. A competent principal may amend or revoke at any time by a signed, dated writing, by physically cancelling or destroying the document, by an oral expression of intent, or by signing a materially different directive (s. 765.104(1)). The change is effective when communicated to the surrogate, provider or facility (s. 765.104(3)).
• A paramedic call at home. A living will is not a do-not-resuscitate order. Emergency medical technicians and paramedics may withhold resuscitation when shown an order not to resuscitate on the Department of Health form, signed by the patient’s physician or physician assistant and by the patient or, if incapacitated, an authorized decision-maker such as the surrogate (s. 401.45(3)(a)).

Limits and how it fits with the other documents

A living will speaks to life-prolonging procedures in the three defined conditions; other health care decisions during incapacity fall to the surrogate (s. 765.205(1)(a), Fla. Stat., as of October 2026). Family, the facility, the primary physician or another interested person may seek expedited judicial review if, among other grounds, “the advance directive is ambiguous” (s. 765.105(1)(b)), a reason to keep the two documents consistent.

Neither document handles property. A durable power of attorney under chapter 709 is a separate document, though chapter 765 recognizes health care authority delegated to an attorney in fact under one (s. 765.204(2)). A Declaration of Preneed Guardian names the person a competent adult wants as guardian in the event of incapacity and creates a rebuttable presumption that this person is entitled to serve (s. 744.3045(1) and (4)).

Frequently asked questions

What is required for a living will in Florida?

A competent adult, a written declaration, and signing in the presence of two subscribing witnesses, one of whom is neither a spouse nor a blood relative of the principal (s. 765.302(1), Fla. Stat., as of October 2026). The form in s. 765.303 is optional.

How much does it cost for a living will in Florida?

Plan Ahead uses flat-fee pricing, and the fee is explained in a complimentary Peace of Mind Planning Session.

Do I need a lawyer to write a will in Florida?

For a living will, nothing in chapter 765 requires a lawyer; the requirements are the signing and witnessing rules in s. 765.302 (Fla. Stat., as of October 2026), and the form in s. 765.303 is optional. A last will has its own rules: the testator signs at the end in the presence of at least two attesting witnesses, who sign in the presence of the testator and of each other (s. 732.502(1)).

Planning Florida health care documents with Plan Ahead

Plan Ahead is the estate-planning practice of attorney Erik Newton, admitted in Florida. Its services include a Living Will and an Advance Health Care Directive, which includes the designation of a health care surrogate. Planning meetings are held by Zoom; signings take place in person, at the client’s home or at our Lake Worth Beach office, with two witnesses and a notary provided by the firm. More on Florida planning: Florida page.

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Related reading

• Declaration of Preneed Guardian in Florida
• Durable Power of Attorney in Florida

This article is for informational purposes only and is not legal advice. No attorney-client relationship is formed by reading it.