Both a living will and a healthcare surrogate deal with medical decisions. Both fall under Florida’s advance directive laws in Chapter 765 of the Florida Statutes. And both are frequently confused with each other, even by people who already have one or both documents in their files. But a living will and a healthcare surrogate serve fundamentally different purposes.
What Is a Living Will in Florida?
A living will is a written document that states your wishes about life-prolonging procedures in specific, narrowly defined medical situations. It is governed by Part III of Chapter 765, sometimes called the “Life-Prolonging Procedure Act of Florida.”
A Florida living will only applies when you are in one of three conditions:
- Terminal condition: An illness or injury with no reasonable medical probability of recovery that, without treatment, can be expected to cause death
- End-stage condition: An irreversible condition that is treated but not cured, resulting in severe and permanent deterioration with no reasonable expectation of improvement
- Persistent vegetative state: A permanent and irreversible condition of unconsciousness with no voluntary actions or cognitive behaviors of any kind
In your living will, you instruct your physicians to either provide or withhold life-prolonging procedures in these situations.
Under Florida law, life-prolonging procedures include mechanical ventilation, dialysis, and other medical interventions that sustain biological life without curing the underlying condition.
- A living will must be signed by the principal in the presence of two adult witnesses.
- At least one witness cannot be a spouse or blood relative.
- Notarization is not required under Florida law, though it is commonly recommended.
Important: a living will is not the same as a last will and testament. A last will deals with property distribution after death. A living will deals with medical treatment decisions while you are still alive but unable to communicate.
What Is a Healthcare Surrogate in Florida?
A healthcare surrogate designation names a specific trusted person to make medical decisions on your behalf when you cannot make them yourself. It is governed by Part II of Chapter 765.
Unlike a living will, a healthcare surrogate’s authority is broad and covers far more than end-of-life situations:
- The surrogate can consent to or refuse any medical treatment, not just life-prolonging procedures
- The surrogate can choose among treatment options, select or change healthcare providers, and access your complete medical records
- Authority typically activates when your primary physician determines incapacity
- You can grant immediate authority, allowing the surrogate to act even before incapacity occurs
- The surrogate must make decisions based on what they believe you would have chosen, guided by your known wishes and values
- You can name an alternate surrogate who steps in if your first choice is unavailable
Execution requirements mirror the living will:
- It must be signed by the principal in the presence of two adult witnesses.
- At least one witness cannot be a spouse or blood relative.
- The person named as a surrogate cannot serve as a witness.
- Notarization is recommended but not legally required.
Living Will vs. Healthcare Surrogate: Key Differences
| Factor | Living Will | Healthcare Surrogate |
| Purpose | Provides written instructions about end-of-life treatments | Names a decision-maker for all medical situations during incapacity |
| Scope | Applies only in three specific conditions: terminal, end-stage, or persistent vegetative state | Covers every medical decision during any period of incapacity |
| Who Acts | Speaks for you through documented instructions | A person who exercises real-time judgment on your behalf |
| Flexibility | Fixed once signed | Can adapt to situations you could not have predicted, making decisions based on evolving medical circumstances |
| Witness
Restrictions |
Two adult witnesses required, with at least one who is not a spouse or blood relative | Same requirements, plus the designated surrogate cannot serve as a witness |
| Notarization | Not required under Florida law, though routinely notarized as best practice | Not required under Florida law, though routinely notarized as best practice |
Do You Need Both a Living Will and Healthcare Surrogate in Florida?
Yes. These documents complement each other rather than replacing one another.
A living will provides clear, documented guidance for the most difficult end-of-life decisions. This clarity takes enormous pressure off your healthcare surrogate during an already devastating time. Your surrogate does not have to guess about your wishes for life support, artificial nutrition, or other life-prolonging measures. The living will speaks for you.
Your healthcare surrogate handles everything beyond end-of-life situations: consenting to surgery, choosing between treatment options after a stroke, deciding on rehabilitation programs, managing medication changes, and responding to medical emergencies. These daily and unexpected medical decisions are not covered by a living will.
Florida Statute 765.305 provides that if you have a healthcare surrogate but no living will, your surrogate can still make decisions about life-prolonging procedures.
But having both documents gives clearer direction, reduces family disagreements, and provides a stronger legal foundation for the decisions being made.
What Happens If You Have Neither a Living Will Nor Healthcare Surrogate?
If you become incapacitated without either document, Florida Statute 765.401 provides a default hierarchy of people who may make medical decisions for you:
- A judicially appointed guardian with healthcare authority
- Your spouse
- An adult child (or majority of adult children reasonably available)
- A parent
- An adult sibling (or majority of adult siblings reasonably available)
- An adult relative who has maintained regular contact and is familiar with your preferences
- A close friend who has maintained regular contact
- A licensed clinical social worker from a licensed hospice chosen by the attending physician
While this default list exists, relying on it introduces unnecessary risk. Family members may disagree about treatment. The person highest on the list may not be who you would choose.
Medical providers may hesitate to proceed with major treatment decisions based solely on a statutory proxy relationship rather than a signed designation.
How a Living Will and Healthcare Surrogate Fit Into Your Complete Estate Plan
A comprehensive Florida estate plan typically includes four foundational documents: a living will, a healthcare surrogate designation, a durable power of attorney (Chapter 709), and either a last will and testament or a revocable living trust (or both).
Together, these ensure that:
- Your medical wishes are clearly documented and honored
- A trusted person can make healthcare decisions when you cannot
- Your financial affairs are managed without court involvement
- Your assets are distributed according to your plan, not the state’s default rules
Without all of these pieces in place, gaps exist that may require expensive guardianship proceedings under Chapter 744 to fill.
Get Help with Your Florida Living Will and Healthcare Surrogate Designation
At Berg Bryant Elder Law Group, our Florida Board Certified Elder Law Attorneys help individuals and families across Northeast Florida put these critical documents in place. We ensure your living will and healthcare surrogate designation are properly drafted, correctly executed under current Florida law, and fully coordinated with your durable power of attorney and overall estate plan.
Contact our office today to schedule a consultation and take the first step toward protecting your wishes, your health, and your family.
Author Bio
Kellen Bryant, Esq.
Founder
Florida Bar Board Certified Elder Law Attorney, Kellen Bryant focuses his law practice on advising and helping caregivers with a particular focus on asset protection and preservation from long-term care costs, creditors, and predators. Kellen Bryant is AV Preeminent® Rated, meaning his attorney peers rated him at the highest level of professional excellence. Kellen Bryant was nominated and selected as a Super Lawyer, Rising Star: 2022.
