How Do I Plan For Potential Incapacity In a Living Will?

By Osborne & Francis
October 25, 2023
Mapping out your end-of-life plans in a legal document may feel uncomfortable. However, it is one of the most important acts you can do for your family and loved ones.

Having your pre-determined wishes and decisions established with a living will can provide a sense of peace to your family during what may be an uncertain time.

Creating a living will is one of the kindest measures you can take to make sure that your wishes are carried out in the event that you are unable to communicate your needs. Accidents can happen without warning. If you have never had those difficult conversations before, your family members may have no idea what your desires are. If your family members disagree with your choices, your living will can effectively communicate what you want to happen to you.

Contact our Florida offices online or by (561) 293-2600. Continue reading to learn more about living wills and how the lawyers at Osborne & Francis can assist you with your estate planning needs.

What Is a Living Will?

A will is probably the most well-known estate planning instrument. A will is a legal document that allows people to decide, posthumously, how their property should be managed and distributed.

A living will is slightly different. A living will outlines your preferences and concerns for future healthcare treatment, in case you are unable to communicate your wishes to your doctors and family. A living will can be constructed with an estate planning and probate lawyer.

Before completing a living will, it is important to consult with your doctors and healthcare professionals. Having a living will does not mean that doctors will deny you pain medications or other treatments. Living wills do not apply to routine medical care or non-life-threatening medical conditions. A living will takes effect when you are genuinely incapacitated and unable to communicate with others.

Under What Conditions Will a Living Will be Effective?

A living will, a type of advance directive, functions to communicate to your family and your healthcare providers what you want to happen to you if you become incapacitated.

Incapacitated means that there is a lack of cognitive or mental ability to handle your own personal care, manage your finances, or make decisions for yourself.

Some incidents that may lead to the utilization of a living will may include:

  • If you are injured or ill and are unable to communicate for yourself
  • If your doctors determine that you cannot make medical decisions for yourself
  • If you suffer from memory loss illnesses such as dementia

Without a living will, your doctors have no way of knowing what your desires may be. An estate planning attorney can not only help you draft a living but they can make sure your medical team is aware of its existence and ensure that they act on it.

How Is a Living Will Created?

A living will is a very personal document that is best constructed after you have consulted with your doctor or healthcare provider and have decided what options are best for you. Then, it is important to meet with an estate planning attorney who is familiar with the state laws that will govern your estate planning.

A knowledgeable estate planning attorney, like those at Osborne & Francis, will be familiar with Florida estate planning law and will be able to help you construct a living will that will stand up in Florida courts. An estate planning attorney will be able to make sure that your living will is executed according to your needs and wishes.

There are many complicated factors that go into planning your estate and building your living will. Your estate planning lawyer can assist you in your living will preparation by securing important medical documentation from doctors and ensuring that your doctors are aware of your living will. Your lawyer can review your finances and insurance coverage to dictate how your care will be paid for. Additionally, an estate planning lawyer can coordinate your end-of-life care and help you name an executor who will make decisions on your behalf.

Contact the lawyers at Osborne & Francis online or by calling (561) 293-2600 to find out how creating a living will may be right for you.

What Situations Will a Living Will Cover?

If you are injured in an accident and are unconscious, a living will can communicate for you. A living will can let your doctors know whether or not you want to receive certain medical treatments such as blood transfusions, medical procedures, or other medical treatments.

A living will can also dictate your decisions on whether or not you want to receive:

  • Breathing tubes or ventilators
  • Feeding tubes
  • Comfort care and types of pain medications
  • Organ and tissue donation
  • DNR (Do Not Resuscitate orders)

Deciding what kind of care or medical treatments you want to receive is not easy. Sometimes, there may be no obvious decision. An estate planning lawyer can help you make informed decisions and draft a will that clearly outlines the level of care you would like to receive.

If you would like to discuss living wills, advance directives, or other estate planning tools and how they can benefit you, contact the knowledgeable lawyers at Osborne & Francis online or by calling (561) 293-2600.

Can a Family Override a Living Will?

If you have created a living will, you have outlined the type of medical care that you wish to receive in the event of your incapacitation. A living will speaks for you if you are unable to speak for yourself.

Even your most loving and supportive family members may have different beliefs and fundamental disagreements. Your family members may even want to contest your living will. However, as long as your living will was created while you were of sound mind, your family may not take away your authority to make medical decisions for yourself.

To make sure that your living will is legal and binding it is important to consult an estate planning attorney. Each state will have specific rules and nuances that must be followed in order for a living will to be legal and valid. The attorneys at Osborne & Francis are well-versed in Florida law and will be able to make sure your will is complete and that your desires will be carried out.

Can I Change My Living Will?

In short, of course. You, as the creator of the will, have the power to change your preferences. Some instances where you may wish to update or change your living will may include:

  • To change or set limits on your ability to pay
  • In response to changes in medical technology
  • In response to a change in healthcare laws
  • In response to changes in your health, diagnosis, or the possibility of surgery or hospitalization
  • In response to a change in your beliefs

It is your right to make significant changes to your living will. You can even revoke your living will if you wish. The estate planning lawyers at Osborne & Francis can help you navigate the complicated process of drafting and managing a living will.

Contact an Experienced Estate Planning Lawyer

Don’t wait until it is too late to construct a living will. To be effective, your living will needs to be in place before you are unable to communicate for yourself. An unforeseen illness or accident can incapacitate you at any time.

The estate planning lawyers at Osborne & Francis are here to make sure that your affairs are in order. Don’t wait to create and put these vital documents in place.

Contact the experienced estate planning lawyers at Osborne & Francis online or by calling (561) 293-2600. We are ready to translate your wishes into legally binding language and directives that ensure your personal dignity is respected until the end.

Erica F.

5 star icon

"Best personal injury attorney around, I could not be happier! I was seriously injured in a car accident and Osborne and Francis helped me through the entire process. I was blown away by how knowledgeable the staff and attorneys are at this incredible law firm. I would not hesitate to recommend this law firm to friends and family!"

C. Smith

5 star icon

“I am so thankful for EVERYONE, the entire staff at Osborne & Francis Law, for mentoring me through the mediation process with my hip replacement failures. I didn't realize how MUCH pressure they relieved me of by helping me deal with the reality of this traumatic time in my life, as it was OVER so quickly with a positive result. My family is grateful to have their mom HAPPY & FOCUSED on the future, rather than worrying over what happened in the past! FAST FORWARD, we are LIVING LIFE to the fullest once again!”


5 star icon

Quick and fair resolution to a unique case. On advice of my own attorney, I engaged Joseph Osborne of Osborne & Francis of Boca Raton, FL. Mr. Osborne had considerable experience in cases such as mine and the results showed that. Mr. Osborne and his staff were very helpful, kept me up to date, and listened to my input. The settlement was very fair as far as I am concerned.

E. Holland

5 star icon

Dennis and the other Osborne & Francis staff were amazing! Our case was HUGE and required tender loving care. Everyone on our case did their part by putting all the puzzle pieces together. We were given step by step updates and put at ease when our nerves got the best of us. For every inquiry we made we received a timely response...You are appreciated!

J. Davis

5 star icon

“I couldn’t have asked for a better lawyer/ firm — everything was done professionally exactly how I wanted. Due to COVID my personal attorney Mr. Garcia was still able to make things work in a timely manner and he never made me feel like he wasn’t working. Overall I’m happy with how my case turned out and I would recommend him and this law firm to anyone. 100% satisfied.”

T. Andrews

5 star icon

“Attorneys Greg Francis and Ryan Fletcher at Osborne & Francis Law Firm represented me in my personal injury case.The defendant drew a line in the sand and was adamant on a settlement amount I was almost willing to accept. After the dust settled and the smoke cleared, we settled for 3 times that amount!!! When they say ‘Real Tough Lawyers,’ they mean it.”

Ready For Your Free Consultation?

Please Fill Out Our Form Below For Your Free Consultation

Hiring a lawyer is the first step towards recovering a better quality of life. At Osborne & Francis, we devote our undivided attention to each client, and all communications are held in the strictest privacy. Contact us by filling out the form or calling us directly at (561) 293-2600.

Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.