Advance Directive vs Living Will in Florida: What’s the Difference?

If you are weighing an advance directive vs living will in Florida, the comparison is a false choice: a living will is an advance directive — one of three types under Fla. Stat. § 765.101(1). It is not a competing document, and you do not pick one over the other.

Most people arrive at this question because they have been handed a stack of hospital forms and told to “do an advance directive,” and they cannot tell whether the Florida living will they signed in 2009 already covers it. This page answers that, and the questions that follow it, under Florida’s Health Care Advance Directives Act — Chapter 765, Florida Statutes. We at Lorenzo Law prepare these documents for clients across Florida and litigate the disputes when they are challenged, and many of those disputes trace back to something on this page.

Key takeaways

• A living will is one type of advance directive, not a competing document. § 765.101(1).
• Florida recognizes three kinds of advance directive: the living will, the designation of health care surrogate, and the anatomical gift.
• Neither a living will nor a surrogate designation has to be notarized in Florida. The words “notary” and “notarized” do not appear anywhere in Chapter 765.
• Both require two witnesses, and at least one must be neither your spouse nor a blood relative. § 765.302(1), § 765.202(2).
• The person you name as surrogate may never witness the designation. § 765.202(2). This is the most common fatal defect we see.
• A living will does not control the moment you are unconscious. It takes effect only after two physicians separately examine you and document specific findings. § 765.304(2), § 765.306.
• Your surrogate’s authority begins on a different rule — one physician, with a second only if that physician has a question. § 765.204(2).
• There are six decisions your surrogate can never make without express written authority, including voluntary psychiatric admission. § 765.113(1).
• Your family cannot simply overrule a valid directive — but they can ask a court to review it, on six enumerated grounds. § 765.105.
• Florida has no POLST program and no state advance directive registry.

Is a living will an advance directive?

Yes. This is the single most common misconception on this topic, and Florida’s statute answers it directly. Section 765.101(1) defines an advance directive as:

“a witnessed written document or oral statement in which instructions are given by a principal or in which the principal’s desires are expressed concerning any aspect of the principal’s health care or health information, and includes, but is not limited to, the designation of a health care surrogate, a living will, or an anatomical gift made pursuant to part V of this chapter.”

So the question “should I get an advance directive or a living will?” is built on a false premise. The real questions are which kinds of advance directive you need, and whether the ones you already signed still say what you want them to say.

Note two features of that definition that are almost never mentioned. It is expressly non-exhaustive — “includes, but is not limited to.” And it reaches witnessed oral statements, not only signed documents.

Advance directive vs living will: side-by-side comparison

	Living will	Health care surrogate	DNRO (yellow form)	Last will & testament
What it does	States which life-prolonging procedures you refuse	Names a person to make health care decisions for you	A medical order telling EMS not to resuscitate	Distributes your property after death
When it operates	Terminal condition, end-stage condition, or persistent vegetative state	On incapacity — or immediately, if you say so	Cardiac or respiratory arrest	Only after you die
Who decides	You, in advance; two physicians confirm the trigger	Your named surrogate	Your physician or PA, with you or your surrogate	Your personal representative
Witnesses	Two; one not spouse or blood relative	Two adults; one not spouse or blood relative; surrogate may not witness	None required	Two
Notary	Not required	Not required	Not required	Not required to be valid; needed for self-proof
How to revoke	Writing, destruction, oral statement, or a later directive	Same, plus divorce revokes a former spouse	Destroy or tell your provider	New will, or physical destruction
Governing law	§§ 765.302–.306	§§ 765.202–.205	§ 401.45(3); Fla. Admin. Code R. 64J-2.018	Ch. 732

An advance directive is not a row in this table. It is the category the first two columns belong to.

What are the three types of advance directives in Florida?

1. A living will. Your own written instructions about life-prolonging procedures if you reach a terminal condition, an end-stage condition, or a persistent vegetative state.
2. A designation of health care surrogate. Names a person to make health care decisions and receive your health information. Under § 765.202(6) you can make that authority effective immediately, without waiting for a finding of incapacity — a provision almost nobody uses and many people want once they hear about it.
3. An anatomical gift under Part V of Chapter 765 — organ and tissue donation.

Florida also recognizes a witnessed oral statement as a living will. § 765.101(13)(b). That is a fallback, not a plan: an oral declaration puts the burden of proof on whoever is trying to honor it.

Surrogate, proxy, or “healthcare proxy”? Florida’s vocabulary

Three words get used interchangeably everywhere else and mean three different things in Florida. Getting them straight prevents a great deal of confusion.

• A surrogate is someone you chose, in a signed designation under § 765.202. Section 765.101(21) defines a surrogate as “any competent adult expressly designated by a principal to make health care decisions and to receive health information.”
• A proxy is someone the statute chose because you never designated anyone. Section 765.101(19) defines a proxy as “a competent adult who has not been expressly designated to make health care decisions for a particular incapacitated individual, but who, nevertheless, is authorized” to do so — under the § 765.401 hierarchy below.
• A “healthcare proxy” or “health care agent” is what many other states call what Florida calls a surrogate. New York uses “health care proxy.” Other states use “health care representative” or “medical power of attorney.” Florida uses none of those terms.

So if you arrived here holding a New York health care proxy, you hold the out-of-state equivalent of a Florida surrogate designation — and under § 765.112 it is valid here. But if a Florida document calls someone your “proxy,” that is a different legal status with a stricter standard of proof, discussed below.

What is a living will in Florida?

Under § 765.302(1), any competent adult may direct the providing, withholding, or withdrawal of life-prolonging procedures in the event of a terminal condition, an end-stage condition, or a persistent vegetative state. The document must be:

• Signed by you, in the presence of two subscribing witnesses;
• At least one of whom is neither your spouse nor a blood relative.

If you are physically unable to sign, one of the witnesses must sign your name in your presence and at your direction.

Read the witness rule carefully, because it is the requirement most often misstated. The restriction applies to one witness, not both. And the statute says blood relative — an in-law, a step-relative, or an adoptive relative is not a blood relative and can serve as that witness. Over-restricting your witness pool is a common and unnecessary source of delay.

Section 765.303 supplies a suggested form, but it “may, BUT NEED NOT,” be used. Any writing that meets § 765.302 works.

One provision worth knowing, because it is the best argument for doing this properly: a living will executed under § 765.302 “establishes a rebuttable presumption of clear and convincing evidence of the principal’s wishes.” § 765.302(3). The Florida Supreme Court reached the same conclusion as a matter of constitutional law in In re Guardianship of Browning, 568 So. 2d 4, 16 (Fla. 1990). A properly signed document does not merely express a preference — it shifts the evidentiary burden onto anyone who wants to argue you meant something else.

The three triggering conditions are not synonyms

Condition	Statutory definition
Terminal condition § 765.101(22)	A condition caused by injury, disease, or illness from which there is no reasonable medical probability of recovery
End-stage condition § 765.101(4)	An irreversible condition for which treatment would be ineffective
Persistent vegetative state § 765.101(15)	A permanent and irreversible condition of unconsciousness, with absence of voluntary action and inability to communicate

What is a designation of health care surrogate?

A living will speaks only to life-prolonging procedures in three defined conditions. It names no decision-maker for anything else. That is what the designation of health care surrogate is for, and it is why most Florida estate plans include both.

Execution under § 765.202: signed before two subscribing adult witnesses, at least one of whom is neither your spouse nor a blood relative, and the surrogate may not serve as a witness. No notary. Like the living will, a valid designation carries a rebuttable presumption of clear and convincing evidence. § 765.202(8).

Under § 765.205, your health care surrogate must consult with your providers, review your medical record, and make the decision you would have made — not the decision the surrogate would prefer, and not what the surrogate thinks is best. That standard is substituted judgment, adopted by the Florida Supreme Court in John F. Kennedy Memorial Hospital, Inc. v. Bludworth, 452 So. 2d 921 (Fla. 1984). The surrogate is also your personal representative under HIPAA, which is how they get access to your records.

You may name an alternate, but the designation must be explicit. The alternate steps in if the original surrogate is not willing, able, or reasonably available. And unless the document states a termination date, a designation remains in effect until revoked. § 765.202(7).

Is there a medical power of attorney in Florida?

Not under that name. If you are looking for a medical power of attorney in Florida, the document that does the job is the Designation of Health Care Surrogate under Chapter 765. Florida has no statutory instrument called a medical power of attorney, a health care power of attorney, or a healthcare proxy.

Florida hospitals will usually understand what you mean, so this is not merely pedantic — but it has two practical consequences that catch people out.

First, out-of-state forms carry out-of-state execution rules. A national “medical POA” template drafted for a state that requires notarization, or that permits the agent to witness, or that uses different witness restrictions, may not satisfy § 765.202. The document is not automatically invalid — § 765.112 saves a directive validly executed under the law of the state where it was signed — but a form downloaded in Florida, for use in Florida, that follows another state’s rules is in a much weaker position.

Second, the phrase leads people to the wrong chapter. “Power of attorney” in Florida means Chapter 709, which governs money and property and has completely different execution requirements. That confusion is common enough to deserve its own section.

Health care surrogate vs. durable power of attorney

These two documents are constantly confused, and the confusion is expensive. A health care surrogate has no authority over your money or property. A durable power of attorney does not, on its own, let your agent consent to surgery.

	Health care surrogate	Durable power of attorney
Chapter	Ch. 765	Ch. 709
Covers	Health care decisions, health information, benefit applications, facility transfers	Banking, real estate, investments, taxes, contracts
The agent is called	Surrogate	Agent / attorney-in-fact
Execution	Two adult witnesses. No notary.	Two subscribing witnesses and a notary — § 709.2105
Can sell your house?	No	Yes, if the instrument grants it
Can consent to surgery?	Yes	Only if health care authority is specifically granted — § 709.2201(2)(c)
Can bind you to arbitration?	Generally no	Depends on the instrument’s terms

The execution row is the source of most of the confusion. A Florida durable power of attorney does require a notary. People who have signed a financial POA reasonably assume the medical paperwork works the same way. It does not.

If the two documents conflict, § 709.2109(3)(b) provides that the health care advance directive controls, unless the power of attorney was executed later and expressly says otherwise.

Most Florida estate plans need both instruments. Neither substitutes for the other.

Does a Florida advance directive need to be notarized?

No. Neither a living will nor a designation of health care surrogate has to be notarized to be valid in Florida. The words “notary,” “notarized” and “acknowledged” appear nowhere in Chapter 765 — not in Part I, not in the living will provisions, not in the surrogate provisions. The statutory form at § 765.303 has two witness blocks and no notarial certificate.

What Florida actually requires:

• In writing
• Signed by you (or by a witness at your direction if you cannot sign)
• Two witnesses
• At least one witness who is neither your spouse nor a blood relative

So why do lawyers still notarize them? Two honest reasons. First, portability: if you are treated in a state whose law does require a notary, a notarized Florida document travels better. Second, practical acceptance — hospital and facility staff who are not lawyers often treat a notarized document as more authoritative, and a seal can prevent an argument at the worst possible moment.

But no Florida provider is entitled to reject a properly witnessed directive for lack of a seal.

Can you sign a Florida advance directive online or remotely?

Yes — but through a different chapter, and with limits that are widely overlooked.

Chapter 765 itself says nothing about electronic execution. But § 117.285(5) expressly lists a health care advance directive among the instruments that may be witnessed through audio-video communication technology supervised by an online notary public. Remote online notarization does reach these documents — by way of Chapter 117, not Chapter 765.

The safeguards are strict, because these documents are a known target for elder exploitation:

• Where fewer than two witnesses are physically present with you, the RON provider must first ask you screening questions about impairment, physical or mental condition, and whether you need assistance with daily care.
• If any of those questions is answered affirmatively, your signature may only be validly witnessed by witnesses physically present with you.
• A vulnerable adult as defined in § 415.102 cannot have a health care advance directive validly witnessed by remote witnesses at all.
• The online notary must ask additional questions during the session about your current circumstances.

Notice the irony those rules create. The people most likely to reach for remote signing — someone frail, hospitalized, or receiving daily care — are frequently the people the statute bars from using it. If your health is the reason for signing today, remote witnessing is usually the wrong route.

One related point: § 732.522, the electronic wills statute, does not apply to Chapter 765 documents. It reaches instruments under the Florida Probate Code, and an advance directive is not one.

How each document must be signed and witnessed

Requirement	Surrogate designation § 765.202	Living will § 765.302
Signed by the principal	Yes, before the witnesses — § 765.202(1)	Yes, before the witnesses — § 765.302(1)
Witnesses	Two subscribing adult witnesses	Two subscribing witnesses
Witness restriction	At least one neither spouse nor blood relative — § 765.202(2)	One neither spouse nor blood relative — § 765.302(1)
Surrogate as witness	Prohibited — § 765.202(2)	N/A
If you cannot sign	Another may sign at your direction, in your presence	A witness subscribes your signature in your presence and at your direction
Notarization	Not required	Not required
Copies	An exact copy must go to the surrogate	You must notify your primary physician; a notified physician or facility must promptly make it part of your medical record — § 765.302(2)
Presumption if valid	Clear and convincing evidence of the designation — § 765.202(8)	Clear and convincing evidence of your wishes — § 765.302(3)

The surrogate cannot witness — the most common execution defect

Section 765.202(2) is absolute: “The person designated as surrogate shall not act as witness to the execution of the document.”

Picture the room and you will see why this happens constantly. A spouse is named as surrogate. The document is signed at the kitchen table. The spouse signs as one of the two witnesses because they are standing right there. The designation is now defective, and nobody discovers it until a hospital is asked to honor it.

No Florida appellate court has yet decided whether a designation witnessed by the surrogate is void or merely voidable — that question is genuinely open. What is not open is the practical consequence: a defectively executed document loses the § 765.202(8) presumption, invites a challenge, and may push your decisions onto the statutory proxy ladder — to whoever the statute picks, not whoever you picked.

When does your health care surrogate’s authority begin?

You choose — and this is one of the most useful and least-used provisions in Chapter 765.

The default is that surrogate authority begins when a physician determines you lack capacity. But under § 765.202(6), you may stipulate in the document that the surrogate’s authority is exercisable immediately, without the necessity for a determination of incapacity. Section 765.204(3) confirms that authority commences either on a determination of incapacity or on that stipulation.

	Incapacity-triggered (default)	Immediately exercisable
Starts	Only after a physician determines you lack capacity	On execution
Advantage	Nobody acts for you while you can act for yourself	No delay; your surrogate can speak to doctors and obtain records now
Trade-off	Gaps and delay in an acute situation while capacity is assessed	Requires real trust in the person you name

The safeguard people worry about is already in the statute: under § 765.204(3), while you retain capacity your own health care decisions always control over a conflicting decision by your surrogate. Immediate authority does not hand your choices away. It removes the administrative delay of proving incapacity before anyone will talk to your surrogate.

One downstream consequence worth knowing: § 765.105(2) provides that the expedited judicial review process does not apply to a patient who is not incapacitated and who has designated a surrogate with immediate authority — because a capacitated patient can simply speak for themselves.

Who decides that you lack capacity?

A physician does — and the rule is narrower than nearly every other page on this topic states.

Section 765.101(10) defines incapacity as being “physically or mentally unable to communicate a willful and knowing health care decision.” It is about the ability to communicate a decision — not a diagnosis, not your age, not a general impression of confusion.

Section 765.204(1) starts from a presumption: “A principal is presumed to be capable of making health care decisions for herself or himself unless she or he is determined to be incapacitated.”

The procedure is in § 765.204(2), and this is the part that is usually reported incorrectly:

1. If your capacity is in question, the primary or attending physician evaluates you.
2. If that physician concludes you lack capacity, the evaluation goes in your medical record.
3. Only if the evaluating physician has a question as to whether you lack capacity does a second physician also evaluate you.
4. If the second physician agrees, both evaluations go in the record.

Read step three again. Almost every competing page describes Florida as requiring two physicians in every case. It does not. The second evaluation is conditional. If the primary or attending physician is unambiguously satisfied that you lack capacity, your surrogate’s authority commences without a second opinion.

Do not confuse this with the living will rule. Section 765.204 governs when your surrogate can start acting. A separate and stricter rule — § 765.306, discussed below — governs when life-prolonging procedures may actually be withheld under your living will, and that one always requires two physicians and separate examinations. Different documents, different thresholds.

Is a finding of incapacity the same as being declared incompetent?

No. Section 765.204(5) is a short subsection that prevents a great deal of harm:

“A determination made pursuant to this section that a principal lacks capacity to make health care decisions shall not be construed as a finding that a principal lacks capacity for any other purpose.“

A physician’s determination that you cannot presently communicate a willful and knowing health care decision does not make you legally incompetent. It does not remove your right to vote, to contract, to make a will, to manage your money, or to marry. It does not adjudicate you incapacitated — only a court can do that, under Chapter 744, after a formal proceeding with an examining committee and appointed counsel.

Families are told the opposite with some regularity, occasionally by people who stand to benefit from it. It is not the law.

When does a living will actually take effect?

This is the question most pages get wrong, and the answer matters enormously to anyone worried about signing away a recoverable situation.

A living will is valid the moment you sign it correctly. It does not govern your treatment until § 765.304(2) is satisfied. Before anything may be withheld or withdrawn, it must be determined that:

1. You do not have a reasonable medical probability of recovering capacity so that you could make the decision yourself;
2. You have a terminal condition, an end-stage condition, or are in a persistent vegetative state; and
3. Any limitations or conditions you expressed — orally or in the document — “have been carefully considered and satisfied.”

And § 765.306 governs who makes those determinations:

“the patient’s primary physician and at least one other consulting physician must separately examine the patient. The findings of each such examination must be documented in the patient’s medical record and signed by each examining physician before life-prolonging procedures may be withheld or withdrawn.”

Two physicians. Separate examinations. Each one documenting and signing. That is a real procedural safeguard, and it is not optional.

Does my living will control if I am temporarily unconscious, or under anesthesia?

No. Unconsciousness alone is not the trigger. Neither is “incapacity” by itself. The threshold is no reasonable medical probability of recovering capacity, combined with one of the three qualifying conditions, confirmed by two physicians. A person under anesthesia, in a recoverable coma, or in a stroke with an expected recovery does not meet that standard, and a living will does not authorize anything in those situations.

What counts as a life-prolonging procedure?

Section 765.101(12) defines it as any medical procedure, treatment, or intervention “including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function.” It then excludes “the administration of medication or performance of medical procedure, when such medication or procedure is deemed necessary to provide comfort care or to alleviate pain.”

Two consequences people rarely realize until it matters:

Feeding tubes and IV fluids are in. Artificial nutrition and hydration are inside the definition by default. If you sign a living will directing that life-prolonging procedures be withheld, you have addressed tube feeding whether or not you thought about it. If you want nutrition and hydration continued even when other measures stop, you must say so affirmatively — a common and completely legitimate instruction, and exactly what the “Additional Instructions” line on the statutory form is for.

Pain relief is out. Comfort care and pain medication are expressly excluded. Declining life support does not mean declining pain management, and it never means being left to suffer.

What can a health care surrogate never decide?

Section 765.113 places certain decisions outside a surrogate’s or proxy’s reach entirely. Unless you have expressly delegated that authority in writing, or the surrogate has sought and received court approval under Florida Probate Rule 5.900, a surrogate or proxy may not consent to:

1. Abortion
2. Sterilization
3. Electroshock therapy
4. Psychosurgery
5. Experimental treatments not approved by a federally approved institutional review board under 45 C.F.R. part 46 or 21 C.F.R. part 56
6. Voluntary admission to a mental health facility

These are the six categories the Legislature treated as grave enough, irreversible enough, or ethically sensitive enough to require either your own advance written authorization or independent judicial oversight.

The drafting point follows directly, and it is one of the most consequential decisions on this page. A general grant of “all health care decisions” does not reach any of these. If you want your surrogate to be able to consent to a voluntary psychiatric admission — the item that most often matters to families managing a relative’s serious mental illness — the designation must say so expressly and in writing. Families discover this in the middle of a crisis, when the alternative is an involuntary examination under the Baker Act.

Section 765.202(5) separately allows you to name a different surrogate for mental health treatment than for other health care. Where a family member is willing to handle medical decisions but not psychiatric ones — or vice versa — that provision is available and almost never used.

Advance directives and pregnancy in Florida

Florida places a restriction here that almost no other page on this topic mentions. Under § 765.113(2), unless you expressly delegate the authority in writing, or the surrogate or proxy has sought and received court approval under Rule 5.900, a surrogate or proxy may not consent to withholding or withdrawing life-prolonging procedures from a pregnant patient prior to viability, as viability is defined in § 390.0111(4).

For any woman of childbearing age signing a Florida advance directive, this is a live drafting decision, not a footnote. If you want your directive to control during pregnancy, the express written delegation has to be in the document. If you do not address it, the statutory restriction applies.

(A 2026 bill, SB 1308, would have repealed § 765.113 entirely. It died in the Senate Health Policy Committee on March 13, 2026. The restriction remains in force.)

Can my family override my advance directive?

Not by disagreeing with it. But Florida gives them a specific, narrow route to a judge, and understanding it is the difference between a family argument and a court case.

Under § 765.105, your family, the facility, your primary physician, or any other interested person who may reasonably be expected to be directly affected may seek expedited judicial intervention under Florida Probate Rule 5.900 if they believe:

	Ground under § 765.105(1)
(a)	The surrogate’s or proxy’s decision is not in accord with your known desires or with Chapter 765
(b)	The advance directive is ambiguous, or you changed your mind after signing it
(c)	The surrogate or proxy was improperly designated, or the designation is no longer effective or has been revoked
(d)	The surrogate or proxy has failed to discharge duties, or is incapable of discharging them
(e)	The surrogate or proxy has abused their powers
(f)	You have sufficient capacity to make your own decisions

Rule 5.900 moves fast: a preliminary hearing within 72 hours of filing, and if the court orders an evidentiary hearing, that must happen within 4 days after the preliminary hearing.

Notice what is not on that list. “I would have chosen differently” is not a ground. Neither is “I am the oldest child.” The grounds are about the validity of the document and the conduct of the decision-maker — not about substituting someone else’s judgment for yours.

Two Florida cases show how this plays out. In Jeda v. Gerasci, 330 So. 3d 549 (Fla. 4th DCA 2021), a hospital’s risk management director used this exact mechanism to petition to remove a patient from life support over the objection of the patient’s mother, who was the designated surrogate. The trial court granted the petition; the patient died two days after the appeal was briefed, and the Fourth District dismissed it as moot. And in Graham v. Florida Department of Children & Families, 970 So. 2d 438, 442–43 (Fla. 4th DCA 2007), a trial court appointed a plenary guardian whose authority would exist “irrespective of any valid advance health care directive” — the Fourth District reversed, because that effectively revoked the directive without any of the § 765.105 grounds and without evidence.

Does a court-appointed guardian outrank my health care surrogate?

No, not automatically. Under § 765.205(3), if a court appoints a guardian after you designated a surrogate, the surrogate continues to make health care decisions unless the court modifies or revokes that authority under § 744.3115. And § 744.3115 requires the court, in every guardianship, to determine whether you executed a valid advance directive and to specify in its order and letters exactly what authority the guardian and the surrogate each hold. Revoking a surrogate’s authority takes § 765.105 grounds, notice, a hearing, and specific written findings of fact.

Professional guardians face an additional hurdle

Section 744.4431, created in 2023, requires a professional guardian to petition the court before consenting to withhold or withdraw life-prolonging procedures or executing a DNR order, and to show by clear and convincing evidence that the action is what the ward would have chosen — or, absent any indication of the ward’s wishes, that it is in the ward’s best interest. Limited exceptions apply, including where the guardian has been delegated authority under § 744.3115 to carry out the ward’s own advance directive and no objection is known.

This is a meaningful protection for anyone whose care may end up in the hands of a professional guardian rather than a family member.

What if a doctor or hospital will not honor it?

Chapter 765 has an answer, and almost nobody publishes it.

Under § 765.1105, a provider or facility that refuses to comply with your advance directive must make reasonable efforts to transfer you to one that will. A provider unwilling to carry out your wishes because of moral or ethical beliefs must, within 7 days, either transfer you — and pay the transport costs — or carry out your wishes. The conscience exemption applies only if you are not in an emergency condition and received written information on admission about the provider’s policies.

Providers acting in compliance with Chapter 765 have immunity under § 765.109, and that immunity is lost if it is shown by a preponderance of the evidence that they did not act in good faith.

Florida also prohibits a facility from making an advance directive a condition of care. Under § 765.110(2)–(3), a provider may not require you to execute an advance directive, or to re-execute one on the facility’s own forms, and doing so as a condition of treatment or admission carries professional discipline and a fine of up to $1,000 per incident. Your directives “shall travel with the patient as part of the patient’s medical record.”

Litigation in this area is thin but real. In Scheible v. Joseph L. Morse Geriatric Center, 988 So. 2d 1130 (Fla. 4th DCA 2008), a nursing home resuscitated a patient contrary to her living will. The Fourth District held that depriving her of the right to refuse care could not be a legal cause of death under § 400.023, and the trial court had ruled — unchallenged on appeal — that Chapter 765 creates no private cause of action. The family nonetheless recovered a $150,000 jury verdict on a breach of contract theory. It is a narrow precedent, and it is the clearest available answer to “does any of this actually have teeth.”

One unsettled point worth flagging honestly: in 2023 Florida enacted § 381.00321, the Right of Medical Conscience statute, which gives providers a broad conscience-based objection right. Whether it expands a provider’s ability to decline an advance directive beyond the “moral or ethical beliefs” framework of § 765.1105 has not been decided by any Florida court.

What is the main disadvantage of a living will?

A straight answer, because the honest version is more useful than the sales version.

• It cannot anticipate everything. A document signed in 2011 was not written with 2026 treatment options in mind, and no drafter can foresee every clinical scenario.
• It names nobody. A living will standing alone gives instructions but appoints no one to interpret them. That is the gap a surrogate designation fills.
• Paramedics cannot act on it. In an out-of-hospital emergency, EMS follows a DNRO on the state form — not a living will, however clearly written.
• It only operates in three defined conditions. Dementia, for example, does not automatically meet the terminal / end-stage / persistent vegetative state threshold, which surprises many families.
• It has to be findable. Florida has no registry. A perfect living will in a safe deposit box does nothing at 2 a.m.

None of this is an argument against having one. It is an argument for having a living will and a surrogate and, where appropriate, a DNRO — and for telling the people involved where the documents are.

Is a DNR an advance directive?

No. A Do Not Resuscitate Order is not an advance directive. It is a physician’s order, governed by § 401.45(3)(a) rather than Chapter 765. An advance directive is your instruction or your appointment; a DNRO is a medical order signed by a clinician.

Florida Administrative Code Rule 64J-2.018(3) says so directly: the DNRO is not a substitute for an advance directive, living will, or declaration as defined in § 765.101.

Element	Florida requirement
Form	DH Form 1896, adopted under Fla. Admin. Code R. 64J-2.018
Paper	Printed on yellow paper. A smaller portable DNRO identification device is also available; its use is voluntary
Clinician signature	Your physician or physician assistant (the PA option was added by 2021 legislation)
Patient signature	You — or if you are incapacitated, your surrogate, proxy, guardian, or attorney in fact
Scope	Resuscitation only. Not a general instruction about other treatment
Revocation	Destroy it, tell your provider — or simply fail to present it

The practical point: paramedics responding to your home will look for the yellow form. They will not read a living will, and they are not required to. A DNRO that is not physically present cannot be followed — which is exactly why the form is yellow.

Does Florida have a POLST?

No. Florida has no POLST (Physician Orders for Life-Sustaining Treatment) or MOLST program. If you have moved here from a state that uses one, that document has no Florida equivalent, and the instrument you need is the DNRO described above.

This nearly changed. Senate Bill 312 in the 2026 session would have created a “patient-directed medical order” framework at a new § 765.3041 — a POLST equivalent — and required the Agency for Health Care Administration to build a voluntary electronic registry for them. It passed the Senate Health Policy Committee 7–0 and then died in the Appropriations Committee on Health and Human Services on March 13, 2026. It is not law. Chapter 765 was not amended in 2024, 2025 or 2026.

Is a POLST an advance directive?

In the states that have one, a POLST is a portable medical order — closer in character to Florida’s DNRO than to a living will. It is signed by a clinician, it addresses treatment across care settings, and it is not a document the patient executes alone. So even where POLST exists, it is generally not classified as an advance directive.

In Florida the question is simpler: there is no POLST at all, so nothing here is one.

Is there a Florida advance directive registry?

No. There is no state registry and no court filing for a living will or a surrogate designation — you do not record these anywhere. The only registry in Chapter 765 is the Joshua Abbott Organ and Tissue Registry at § 765.5155, which concerns organ donation only. People who have heard “Florida has a registry” have usually heard about that one.

This is precisely why where you keep the documents, and who has copies, is a real part of the planning rather than an afterthought. Practical distribution:

• Give the original or a copy to your surrogate and alternate — § 765.202 requires it for the surrogate.
• Deliver a copy to your primary physician and ask that it be scanned into the chart.
• Deliver a copy to every facility where you receive regular care, and again at each admission.
• Keep the DNRO where emergency responders will find it — physically present, on the yellow form.
• Keep a list of everyone holding a copy, because revocation is only effective when communicated.
• Do not keep the only copy in a safe deposit box.

What happens if you have no advance directive?

Florida decides for you. Section 765.401(1) sets a proxy hierarchy, and decisions pass to the first person in the list who is reasonably available, willing and competent to act:

Order	Who decides
(a)	A judicially appointed guardian, if one has already been appointed
(b)	Your spouse
(c)	An adult child — or, if more than one, a majority of the adult children reasonably available for consultation
(d)	A parent
(e)	An adult sibling, or a majority of them
(f)	An adult relative who has exhibited special care and concern and maintained regular contact
(g)	A close friend
(h)	A licensed clinical social worker selected by the provider’s bioethics committee

Two observations that resolve a great many family disputes. Your spouse outranks your adult children — which is why the “can my father’s wife override us?” question so often has an uncomfortable answer. And where there are several adult children, it takes a majority, not unanimity, and not the eldest.

Look at the list again and notice who is missing. An unmarried partner of thirty years appears nowhere by right; they must qualify as a “close friend” at class (g), below every sibling and parent. A stepchild is not an adult child. And class (h) means that if you have no family at all, a stranger selected by a bioethics committee decides whether you are resuscitated.

A proxy also operates under a stricter standard than a surrogate you chose: under § 765.401(3), a proxy’s decision to withhold or withdraw life-prolonging procedures “must be supported by clear and convincing evidence” that it is the decision you would have made. With no directive and nothing in writing, that is a hard standard to meet, and it is the reason these cases end up in court.

The Legislature said plainly why it built this system: the procedure is meant to be “less expensive and less restrictive than guardianship.” § 765.102(2). Signing two documents is the cheapest guardianship-avoidance measure available in Florida.

Can you name a health care surrogate for a minor child?

Yes, and this is one of the most useful and least-known documents in Chapter 765. Under § 765.2035, a natural guardian under § 744.301(1), a legal custodian, or a legal guardian of the person of a minor may designate a competent adult to make health care decisions for the child.

Execution tracks the adult version: a written document signed by the minor’s principal before two subscribing adult witnesses, with an exact copy provided to the surrogate. If the principal cannot sign, another may sign at the principal’s direction in the presence of the witnesses. And as with an adult designation, the person named as surrogate may not witness it.

Four features deserve attention:

Mental health treatment is presumed included. A parent or guardian may designate a separate surrogate for the child’s mental health treatment — but unless the document expressly says otherwise, the court will assume the health care surrogate is also the choice for mental health decisions.

An alternate must be explicit. If neither the surrogate nor an alternate is willing, able, or reasonably available, § 743.0645(2) applies as if no surrogate had been designated.

It lasts until revoked unless the document states a termination date, and it carries the same rebuttable presumption of clear and convincing evidence.

It can be signed before the child is born. Section 765.2035(6) states that an otherwise valid designation “shall not be invalid solely because it was made before the birth of the minor.”

The practical uses are broader than most parents realize: a grandparent caring for children over a summer, a nanny or family friend supervising while parents travel, a coach or relative on an out-of-state trip. Section 765.2038 supplies a suggested form.

How do you change or revoke an advance directive?

Section 765.104(1) gives a competent principal four methods, at any time:

1. A signed, dated writing
2. Physical cancellation or destruction — by you, or by someone else in your presence and at your direction
3. An oral expression of intent to amend or revoke
4. A later advance directive that is materially different from the earlier one

An oral revocation requires no witnesses. What matters is communication: under § 765.104(3), any amendment or revocation “will be effective when it is communicated to the surrogate, health care provider, or health care facility,” and nobody is liable for failing to act on a revocation they had no actual knowledge of.

The practical translation: tearing up your only copy in a drawer, and telling nobody, may accomplish nothing.

Method four is the quiet trap in most people’s paperwork. A materially different later directive revokes the earlier one — which means the “new” advance directive a hospital handed you at admission last year, and which you signed without much thought, may have superseded the carefully drafted one in your attorney’s file. Keep an inventory of every directive you have ever signed, and affirmatively revoke the ones you do not want.

Does divorce revoke my health care surrogate?

Yes, by default — and this catches people. Under § 765.104(2), unless the directive or a dissolution order says otherwise, the dissolution or annulment of your marriage revokes the designation of your former spouse as surrogate. If you divorced and never revisited your documents, you may have no surrogate at all rather than the one you think you have, which drops you into the § 765.401 proxy ladder.

Note what the statute does not do. It revokes the ex-spouse’s designation as surrogate. It does not revoke your living will, and it does not revoke a Chapter 709 durable power of attorney. Those need separate attention. And if you want a former spouse to keep the role — not rare where the divorce was amicable and the ex-spouse knows your wishes best — you must say so expressly.

I signed an advance directive in another state — is it valid in Florida?

Yes. Section 765.112 is one sentence and it is unconditional:

“An advance directive executed in another state in compliance with the law of that state or of this state is validly executed for the purposes of this chapter.”

For the many people who retire to Florida with a New York health care proxy or an Illinois directive in a folder, that document is legally valid here. Three practical caveats remain.

Florida clinicians read Florida forms fluently and out-of-state forms less so — a friction problem rather than a legal one, but friction at 3 a.m. is not nothing. Other states’ vocabulary does not map onto Chapter 765, which uses surrogate and reserves proxy for the statutory default. And your out-of-state DNR does not carry over — only the Florida DH 1896 yellow form binds Florida EMS, and an out-of-state POLST has no Florida counterpart at all.

For snowbirds the usual answer is to execute a Florida set alongside the home-state documents, drafted so the two are consistent — because a materially different later directive can revoke the earlier one under § 765.104(1)(d). Signing a Florida directive without addressing the northern one is how people accidentally revoke the document they meant to keep.

Is withdrawing life support the same as euthanasia or suicide?

Under Florida law, no. Section 765.309 addresses this directly:

“(1) Nothing in this chapter shall be construed to condone, authorize, or approve mercy killing or euthanasia, or to permit any affirmative or deliberate act or omission to end life other than to permit the natural process of dying.
(2) The withholding or withdrawal of life-prolonging procedures from a patient in accordance with any provision of this chapter does not, for any purpose, constitute a suicide.”

Florida courts reached the same conclusion before the statute existed. In Satz v. Perlmutter, 362 So. 2d 160, 162–63 (Fla. 4th DCA 1978), approved, 379 So. 2d 359 (Fla. 1980), the court held that disconnecting a respirator from a competent patient with terminal ALS was not suicide: his affliction, not any self-induced act, was the cause of death. This is a genuine concern for many people on religious grounds, and the law gives it a clear answer.

Why Florida’s law reads the way it does

Chapter 765 did not appear from nowhere. Its architecture comes from Florida cases.

In re Guardianship of Browning, 568 So. 2d 4 (Fla. 1990), established that every competent adult has a right under Article I, Section 23 of the Florida Constitution to refuse medical treatment; that an incompetent person retains that right; that a surrogate must support the decision with clear and convincing evidence, with a written declaration creating a rebuttable presumption that satisfies it; and that where you have specifically expressed your wishes, no prior court approval is needed to carry them out. Id. at 11–17.

The Legislature codified that framework when it enacted Chapter 765 in 1992. It is worth being precise about the chronology, because it is commonly muddled: the clear-and-convincing-evidence standard comes from Browning and predates the Terri Schiavo litigation by more than a decade. The Schiavo courts applied a standard Florida already had. What that litigation added was Bush v. Schiavo, 885 So. 2d 321 (Fla. 2004), striking down “Terri’s Law” as a separation-of-powers violation — authority for the proposition that the Legislature and the Governor cannot override a final judicial determination of a patient’s wishes.

The practical lesson of those years is unglamorous and worth stating plainly: the dispute happened because the patient’s wishes were never written down.

What should you put in the “Additional Instructions” blank?

The statutory form at § 765.303 provides an optional “Additional Instructions” line, and it is the most underused space in Florida estate planning. The form’s three qualifying conditions are separately initialed, so you are not forced into an all-or-nothing choice — and the blank lets you say things the checkboxes cannot.

Points worth considering with your attorney:

• Whether you want artificial nutrition and hydration continued even if other measures are withdrawn — remember these are included by default
• Whether your directive should control during pregnancy (the § 765.113(2) express written delegation)
• Whether your surrogate may consent to any of the six § 765.113(1) decisions — voluntary psychiatric admission above all
• What you want if you have advanced dementia but do not meet the terminal / end-stage / PVS threshold
• Your position on a time-limited trial of aggressive treatment before withdrawal
• Whether you want a separate surrogate for mental health treatment — permitted by § 765.202(5)
• Religious or cultural requirements you want honored
• Whether your surrogate’s authority should be effective immediately under § 765.202(6)

How to make a Florida advance directive — and what actually goes wrong

Mechanically, this is a short list: put it in writing, sign it in front of two witnesses, make sure at least one is neither your spouse nor a blood relative, make sure your surrogate is not one of them, and get copies to the people who will need them. No notary, no filing, no registry.

The reason people still end up in trouble is that nothing about the process catches the errors that actually void these documents. There is no clerk to reject a defective form, no error message, no confirmation screen. Every failure below is discovered in a hospital corridor, by people under the worst pressure of their lives, at the one moment when nothing can be fixed.

The failures that recur:

• The surrogate signed as a witness. The most common defect, and § 765.202(2) is absolute. Nothing at the kitchen table warns you.
• Both witnesses were blood relatives. The document does not police who signs it.
• A living will with no surrogate. Instructions with nobody empowered to enforce them against a reluctant facility.
• A surrogate designation with no living will. A decision-maker with no written evidence of what you wanted — and under Browning, no written declaration means no rebuttable presumption of clear and convincing evidence.
• No express delegation of the § 765.113(1) powers. Families discover only in a psychiatric crisis that the surrogate cannot consent to a voluntary admission.
• No alternate surrogate, or one named so vaguely that it is not the “explicit” designation the statute requires.
• Pregnancy never addressed in a directive signed by a woman of childbearing age.
• An out-of-state form a Florida facility must stop and vet.
• An old directive nobody revoked, materially different from the new one, now competing with it under § 765.104(1)(d).
• A directive nobody can find, because there is no registry and no copies were distributed.

None of these is a formatting problem. Every one is a drafting or execution problem — which is why the choice is not really between a free form and a paid form, but between a document that was thought through and one that was not.

How much does an advance directive cost in Florida?

Less than almost anything else in an estate plan, and often nothing at all.

The Agency for Health Care Administration publishes forms approved by the Supreme Court of Florida at no charge, and the § 765.303 living will form is printed in the statute itself. If cost is the obstacle, use the free form — a correctly executed document beats a perfect one you never signed.

We at Lorenzo Law prepare a standard Florida advance directive for a flat fee of $575 per person, per document. That figure covers everything needed to get that document fully executed, not merely drafted. Where a client needs more than one document, or a spouse is signing their own, the additional documents are discounted. This fee is current as of the date of this page, applies to the standard engagement described here, and is confirmed in writing before any work begins.

We normally recommend handling these alongside the rest of a plan — a will or trust, and a durable power of attorney — because drafting them in isolation from everything else is how the conflicts described above get created. The marginal cost of adding them to a broader engagement is small.

What is not cheap is the alternative. A contested guardianship, or a § 765.105 proceeding, or a family fight over what you would have wanted, costs multiples of any planning fee. The Legislature said as much in § 765.102(2) when it described this framework as “less expensive and less restrictive than guardianship.”

Do you need a lawyer for an advance directive in Florida?

Legally, no. Florida does not require an attorney to execute a living will or a health care surrogate designation. Anyone telling you these documents are unobtainable without counsel is not being straight with you.

Where a lawyer earns the fee is narrower and more specific:

• Blended families, where the § 765.401 hierarchy would produce a result you do not want — a spouse outranking children from a first marriage, or a stepchild with no standing at all
• Unmarried partners, who have no place in the statutory hierarchy
• The pregnancy delegation under § 765.113(2)
• The § 765.113(1) delegations, particularly mental health admission
• A dementia diagnosis that will not fit the statutory triggers
• Coordinating the directive with a durable power of attorney so the two do not conflict under § 709.2109(3)(b)
• Snowbirds holding directives from two states
• Situations where you expect the document to be challenged

If none of those apply, the free form signed correctly in front of the right two witnesses is a genuinely good outcome.

Talk to a Florida advance directive attorney

We at Lorenzo Law prepare Florida advance directives — living wills, designations of health care surrogate, surrogate designations for minor children, and the durable powers of attorney that belong alongside them — as part of estate plans throughout the state. We also handle the disputes when these documents are challenged: § 765.105 petitions for expedited judicial intervention, contested guardianships under Chapter 744, and probate litigation where a directive’s validity or a surrogate’s authority is at issue.

Our only offices are in Coral Gables and Fort Lauderdale, and we serve the entire state of Florida — Miami-Dade, Broward and Palm Beach counties; the Treasure Coast, including Port St. Lucie, Stuart, Vero Beach and Indian River County; Orlando and Central Florida; the Gulf Coast, including Sarasota and Fort Myers; and North Florida, including Jacksonville and Gainesville. Matters outside South Florida are handled remotely, with travel or court appearances where a case requires it. We work with Spanish-speaking clients and their families.

Call (305) 224-6811 or contact us to talk about your advance directives.

Frequently asked questions

Is an advance directive the same as a living will?

No — a living will is one type of advance directive. Florida’s definition at § 765.101(1) also covers a designation of health care surrogate and an anatomical gift.

What is the difference between an advance directive and a living will?

In Florida the useful comparison is between the two documents inside the category. A living will states your instructions about life-prolonging procedures in a terminal condition, end-stage condition, or persistent vegetative state. A designation of health care surrogate appoints a person to make health care decisions across the full range of care. Both are advance directives.

What is better than a living will?

Not better — additional. A living will plus a designation of health care surrogate covers far more ground than either alone, because the living will gives instructions and the surrogate supplies a decision-maker for everything the instructions do not reach.

What is the purpose of an advance directive?

To carry your own health care decisions forward into a period when you cannot communicate them. Section 765.102 records the Legislature’s finding that every competent adult has the fundamental right to choose or refuse medical treatment; Chapter 765 exists to preserve that right when you can no longer exercise it directly.

Does an advance directive need to be notarized in Florida?

No. The words “notary” and “notarized” do not appear anywhere in Chapter 765. A living will requires two witnesses under § 765.302; a surrogate designation requires two adult witnesses under § 765.202. Notarization is permitted but never required for validity.

Can I notarize my own living will?

You cannot notarize your own signature on any document. But it does not matter here: Florida does not require notarization of a living will at all. What you need is two witnesses, one of whom is neither your spouse nor a blood relative.

Who can witness a living will in Florida?

Any competent adult. At least one of the two must be neither your spouse nor a blood relative. For a surrogate designation, § 765.202(2) adds that the person you name as surrogate may not act as a witness.

Can my spouse witness my advance directive?

Your spouse may be one of the two witnesses, but not the one satisfying the restriction — at least one witness must be neither your spouse nor a blood relative. And if your spouse is also your named surrogate, your spouse cannot witness the designation at all.

Can an in-law or stepchild witness my advance directive?

Yes. The statute disqualifies your spouse and a blood relative. A son-in-law, daughter-in-law, stepchild or sibling-in-law is a relative but not a blood relative, and can serve as the qualifying witness.

Can I sign a Florida advance directive online?

Remote online witnessing is available under § 117.285(5), with limits. If fewer than two witnesses are physically present, screening questions must be asked, and an affirmative answer about impairment or need for daily care means witnesses must be physically present. A vulnerable adult under § 415.102 cannot use remote witnesses at all. Section 732.522, the electronic wills statute, does not apply to Chapter 765 documents.

Is there a medical power of attorney in Florida?

Not by that name. The Florida document that performs the function is the Designation of Health Care Surrogate under Chapter 765. “Power of attorney” in Florida refers to Chapter 709, which governs money and property and requires two witnesses and a notary.

Is an advance directive the same as a power of attorney?

No. An advance directive addresses health care under Chapter 765. A durable power of attorney addresses money and property under Chapter 709. Most complete estate plans include both.

Does a power of attorney override an advance directive?

No. Under § 709.2109(3)(b), where the two conflict the health care advance directive controls, unless the power of attorney was executed later and expressly says otherwise. And under § 709.2201(2)(c), a Chapter 709 agent may make health care decisions only if that authority is specifically granted — a general grant does not do it.

Who decides that I lack capacity in Florida?

Your primary or attending physician, under § 765.204(2). A second physician evaluates only if the first physician has a question about capacity — it is not automatic. Both evaluations then go in your medical record.

Does a finding of incapacity make me legally incompetent?

No. Section 765.204(5) provides that a determination that you lack capacity to make health care decisions is not a finding that you lack capacity for any other purpose. Legal incompetency requires a court proceeding under Chapter 744.

When does my health care surrogate’s authority start?

By default, when a physician determines you lack capacity. But under § 765.202(6) you may stipulate that the authority is exercisable immediately, without a determination of incapacity. While you retain capacity, your own decisions still control under § 765.204(3).

Does a living will apply if I am unconscious but not dying?

No. It operates only in a terminal condition, an end-stage condition, or a persistent vegetative state, and only after two physicians separately examine you under § 765.306. Temporary unconsciousness, anesthesia, or a recoverable coma does not trigger it — that is what your surrogate is for.

Does a living will cover feeding tubes in Florida?

Yes. Section 765.101(12) defines “life-prolonging procedure” to include artificially provided sustenance and hydration. If you want nutrition and hydration continued even when other measures stop, say so affirmatively in the Additional Instructions.

What can a health care surrogate not decide?

Without express written delegation or court approval under Rule 5.900, a surrogate may not consent to abortion, sterilization, electroshock therapy, psychosurgery, non-IRB-approved experimental treatments, or voluntary admission to a mental health facility — § 765.113(1). A surrogate also may not withhold or withdraw life-prolonging procedures from a pregnant patient prior to viability — § 765.113(2).

Can my surrogate consent to a psychiatric admission?

Only if you expressly delegated that authority in writing, or the surrogate obtains court approval under Rule 5.900. A general grant of “all health care decisions” does not reach voluntary admission to a mental health facility. Section 765.202(5) also lets you name a separate surrogate for mental health treatment.

Can a health care surrogate handle my money?

No. A surrogate’s authority is health care. The one financial exception in § 765.205(1)(e) is applying for public benefits such as Medicare and Medicaid, with access to the income and asset information needed to make the application. Financial authority comes from a Florida durable power of attorney under Chapter 709.

Can my health care surrogate sign a nursing home arbitration agreement for me?

Generally no. Florida courts have repeatedly held that agreeing to arbitration is not a “health care decision” under Chapter 765. Blankfeld v. Richmond Health Care, Inc., 902 So. 2d 296 (Fla. 4th DCA 2005) (en banc); Moen v. Bradenton Council on Aging, LLC, 210 So. 3d 213 (Fla. 2d DCA 2017); Manor Oaks, Inc. v. Campbell, 276 So. 3d 830 (Fla. 4th DCA 2019).

Can family override an advance directive in Florida?

Not unilaterally. A family member who disagrees must seek expedited judicial intervention under § 765.105 and Florida Probate Rule 5.900, and must establish one of six statutory grounds. Disagreeing with the surrogate’s judgment is not one of them.

Does a court-appointed guardian outrank my health care surrogate?

Not automatically. Under § 765.205(3) the surrogate continues to act unless the court modifies or revokes that authority under § 744.3115, and § 744.3115 requires the court to determine whether a valid directive exists and to specify what authority each person holds. A professional guardian faces the additional requirements of § 744.4431.

What happens if I never named a health care surrogate?

Section 765.401 supplies a proxy through eight classes: guardian, spouse, adult child or a majority of them, parent, adult sibling or a majority, an engaged adult relative, a close friend, and finally a licensed clinical social worker chosen by a bioethics committee.

Does my unmarried partner have any authority under Florida law?

Not by right. An unmarried partner does not appear in the § 765.401 hierarchy as a category and would have to qualify as a “close friend” at class (g) — behind every spouse, adult child, parent, sibling and engaged adult relative. A signed designation is the only reliable fix.

What if my adult children disagree about my care?

Under § 765.401, where there is more than one adult child the decision goes to a majority of those reasonably available for consultation — not unanimity, and not the eldest. A dissenting child’s recourse is a § 765.105 petition.

Can I revoke a Florida advance directive?

Yes, at any time while competent — by signed dated writing, by physically destroying it, by an oral expression of intent, or by executing a materially different later directive. Revocation is effective when communicated to the surrogate, provider, or facility.

Can an advance directive be revoked verbally in Florida?

Yes. Section 765.104(1)(c) expressly permits revocation by an oral expression of intent, with no witnesses required. But it takes effect only when communicated, and no one is liable for failing to act on a revocation without actual knowledge of it.

Does divorce revoke my health care surrogate?

Yes as to a former spouse. Under § 765.104(2), dissolution or annulment of marriage revokes the designation of the former spouse as surrogate, unless the directive or the dissolution order provides otherwise. It does not revoke your living will or your Chapter 709 durable power of attorney.

Does a living will expire?

No. It remains effective until you revoke it. A surrogate designation likewise remains in effect until revoked unless the document states a termination date. § 765.202(7). That said, documents should be reviewed after a marriage, a divorce, a death, a move to Florida, or a serious diagnosis.

Can a living will be contested?

Its validity or application can be challenged through the § 765.105 expedited judicial intervention process, on the six grounds listed above. A properly executed living will carries a rebuttable presumption of clear and convincing evidence of your wishes, which puts the burden on the challenger.

What if a doctor or hospital refuses to follow my advance directive?

Under § 765.1105 the facility must make reasonable efforts to transfer you, and within 7 days must either transfer you — paying the transport costs itself — or carry out your wishes. The conscience exemption applies only if you are not in an emergency condition and received written notice of the facility’s policies on admission. Under § 765.110 a facility also may not require you to sign a directive, or re-sign one on its own forms, on pain of discipline and a fine of up to $1,000 per incident.

Is a DNR an advance directive?

No. A Florida DNRO is a physician’s order on DH Form 1896, signed by both a clinician and the patient or an authorized decision-maker. Rule 64J-2.018(3) states expressly that it is not a substitute for an advance directive, living will, or declaration.

Does Florida have a POLST form?

No. Florida has no POLST or MOLST program. Senate Bill 312 in 2026 would have created a “patient-directed medical order” equivalent at a new § 765.3041; it died in the Appropriations Committee on Health and Human Services on March 13, 2026. Florida’s instruments remain the Chapter 765 advance directives plus the DNRO.

Is there a Florida advance directive registry?

No. There is no state agency, court, or clerk with which a living will or surrogate designation is filed or registered. Florida’s only Chapter 765 registry is the Joshua Abbott Organ and Tissue Registry under § 765.5155, which covers organ and tissue donation only.

Does a living will need to be filed with a court?

No. There is no filing requirement and no state registry. Give copies to your surrogate, your primary physician, and the facility if you are admitted — under § 765.302(2), a physician or facility notified of a living will must promptly make it part of your medical record.

Is my out-of-state advance directive valid in Florida?

Yes. Under § 765.112, a directive executed in compliance with the law of the state where it was executed, or with Florida law, is validly executed for Chapter 765 purposes. Your out-of-state DNR does not carry over, though — only the Florida DH 1896 yellow form binds Florida EMS.

Can I name a health care surrogate for my child?

Yes. Under § 765.2035, a natural guardian, legal custodian, or legal guardian may designate a competent adult as a minor’s surrogate, signed before two adult witnesses, and the surrogate may not witness it. Unless the document says otherwise, that surrogate is presumed to cover mental health treatment decisions as well. A designation is not invalid solely because it was made before the child’s birth.

Is a “Five Wishes” document valid in Florida?

Yes, if it is executed correctly. Five Wishes was created by Aging with Dignity, a nonprofit based in Tallahassee, and designed to satisfy Florida law. Because neither § 765.303 nor § 765.203 makes its suggested form mandatory, a properly witnessed Five Wishes can function as both a living will and a surrogate designation. Note two things: the surrogate you name may not witness it, and it is not a DNRO — only the yellow DH 1896 binds EMS.

Can an advance directive be oral in Florida?

Yes — § 765.101(1) includes a witnessed oral statement, and § 765.101(13)(b) recognizes an oral living will. But under In re Guardianship of Browning, a written declaration establishes a rebuttable presumption of clear and convincing evidence of your wishes, while an oral one does not. Oral directives are recognized; they are much harder to enforce.

Does an advance directive avoid probate?

No. An advance directive operates while you are alive and has no effect after death. Probate concerns your property and is governed by Chapter 733.

How much does an advance directive cost in Florida?

The Agency for Health Care Administration’s forms are free, and the § 765.303 living will form is printed in the statute itself. Lorenzo Law prepares a standard Florida advance directive for a flat fee of $575 per person, per document, covering everything needed to have that document fully executed, with additional documents discounted. The fee is current as of the date of this page and is confirmed in writing before any work begins. If cost is the obstacle, use the free form — an executed document beats a perfect one you never signed.

How often should I review my advance directives?

After any marriage, divorce, death of a named surrogate, serious diagnosis, or move to or from Florida. Be careful about signing new directives at hospital admissions, since a materially different later directive can revoke the one you meant to keep under § 765.104(1)(d).

This page is general information about Florida law and is not legal advice. Reading it does not create an attorney-client relationship. Chapter 765 and the rules discussed here change, and how they apply depends on your particular circumstances — please consult a Florida attorney about your own situation.

About the author. Jose M. Lorenzo, Jr., Esquire is a Florida attorney (Florida Bar No. 107002) practicing probate, estate planning, guardianship and probate litigation statewide from offices in Coral Gables and Fort Lauderdale.