Skip to Content
We are fully operational and available for both in-person and remote meetings. Please click here to see a Letter from Solkoff Legal, P.A. regarding the Coronavirus pandemic.
Updates from Solkoff Legal

10 Tips & Treasures on Creating a Living Will


A lawyer helping you create a living will

Your goal is to set to paper your health care directions in advance of needing them. You want your wishes to be honored and most want their surrogates and family to have as safe and easy a time of it as possible. Scott Solkoff has identified some easy and very important “drafting opportunities” to consider when people do Advance Health Care Directives. Advance Health Care Directives are health care decisions we make in advance of needing them and include such documents as Living Wills, Health Care Surrogate Designations and Health Care Power of Attorneys:

1) Personalize Your Living Will

You are unique in your personhood. Examine your own wishes. Do not think you need to fit your own wishes into a form created by someone else. Some Elder Law Attorneys can help you ask yourself the important questions when creating a living will and then put it to paper in a manner most likely to be honored. . If you must sign a “form,” know that there are many forms out there and you should examine many to find the one that best approximates your own wishes.

2) Be Specific About Pain Medication

Pain medications are sometimes deemed “artificial procedures” and are therefore sometimes withheld when a document mandates that no artificial procedures be used. Most people want to die in as painless a fashion as possible. Be specific to indicate that you want pain medications to be used if they will lessen your suffering even if those pain medications may dull your consciousness or indirectly shorten your life.

3) Consider a Liability Shield for Doctors and Facilities

Some doctors and health care facilities are afraid of being sued when dealing with living wills and health care surrogates. One reason why these advance health care directives are not honored is because of fear of a law suit. Consider including language in your documents that “indemnifies” the health care providers, facilities and your surrogates from any liability incurred as a result of their obedience to your directions. Do not underestimate the importance of this provision. People and institutions will be much more likely to honor your wishes if they believe themselves to be protected from liability for doing so.

4) Be Specific With the Number of Signatures Needed on Your Living Will

Depending on your circumstances, it is usually best not to require all surrogates to sign off on directions. When health care decisions need to be made, those decisions often cannot wait to get all of the surrogates in the same place at the same time. Your document should be crystal-clear on how many signatures are necessary. Scott Solkoff usually recommends that people allow only one signature to accomplish a health care decision even if other surrogates are available to act. There are pros and cons. Discuss this issue with the Elder Law Attorney.

5) Make Sure Your Surrogate has all Necessary Credentials

The health care advance directive law is found in Chapter 765 of the Florida Statutes but there are other state and federal laws that affect your surrogate’s ability to act for you. For example, your documents should take into consideration Chapter 470 of Florida Statutes which allows for a “legally authorized person” to be designated to make funeral arrangements. Without this, your funeral arrangements might be made by a person not of your choosing.

When creating a living will, you should also take into account new federal privacy laws. Many lawyers have reported that hospitals and nursing homes have refused to allow a Health Care Surrogate to access clinical records unless the documents explicitly point to HIPAA and related privacy laws.

6) Make Your Stance Firm on Experimental Medical Procedures

Experimental medical procedures are sometimes desired and your documents should specifically authorize your surrogate to consent or withhold consent to experimental medical procedures if that be your wish.

7) Remove Liability from Surrogates for Expenses

If hospitals or other health care providers do not get full payment for your care, they might go after your Surrogate who authorized the care. Your documents should explicitly state that “My Surrogates shall not be liable or responsible for any costs or expenses of my medical treatment or care and a Surrogate’s signature on admissions papers shall not make that Surrogate liable for any costs and expenses incurred for my care, it being understood that the Surrogate acts for me and in my stead and I alone would be liable or responsible for such costs and expenses.” This one provision can save great grief and a considerable amount of money.

8) Make Your Last Will & Testaments “Self-Proving”

Make the Advance Health Care Directives “self-proving.” In Florida, all Last Wills & Testaments can be made self-proving. This means that the witnesses do not actually need to come to court to prove that the person actually signed the Will. A Last Will & Testament is made self-proving with the addition of an affidavit (a sworn statement) attached to the Will. It is not the custom to use these affidavits for advance health care directives but it is a smart idea. The inclusion of the “self-proving affidavit” makes the document look more official because the witnesses are making a statement that the rules of signing have been followed. If ever the document requires to be proved in court, this affidavit may prove helpful. There is no disadvantage other than that it takes the attorney a little more time.

9) Consider Organ Donations When Creating a Living Will

When creating a living will, consider organ donations and your wishes regarding an autopsy. Including your wishes regarding organ donations and autopsy in your advance health care directives will better ensure that your wishes are made known. Most people are unaware that a Surrogate can donate your body or make organ donations even if you never consented to same during your lifetime. If you do not want this to be a possibility, you want to make that clear. If you do want to donate part or all of your body, then you also need to make your wishes known.

10) Make Sure People Know About Your Advance Health Care Directives

Your Elder Law Attorney can create the best, most customized document in the world but if nobody knows about it, it does not help you. Immediately upon signing the documents, you should deliver one copy to each of your surrogates and one copy to your primary care doctor and whatever other specialists you are seeing. If you are not giving your Surrogate the original document, tell the Surrogate where you keep the original and make sure it is accessible. Talk to your Elder Law Attorney about other ways to keep your document available. If you update your document, make sure you send the new one to at least all of the people to whom the prior copy had been provided. Make sure you tell them that this new version replaces the older one.

    Solkoff ResourcesWELCOME

    Because each person’s case is different, because laws and rules change rapidly, because different states can have different laws and because this article was not written as legal advice, you should not rely upon this article or any other resources on as legal advice. You may link to the articles and pages on If you wish to post, copy or distribute the articles or any portion thereof, we invite and require you to first obtain written consent from Solkoff Legal, P.A. All articles are Copyright :copyright: Solkoff Legal, P.A. unless otherwise stated.

    Solkoff Legal is Board Certified by The Florida Bar.

    Board certification recognizes attorneys’ special knowledge, skills, and proficiency in various areas of law, professionalism, and ethics. Solkoff lawyers are Florida Bar Board Certified Specialists in Elder Law.

    Solkoff Legal is a member of the National Academy of Elder Law Attorneys, Inc.

    NAELA is a non-profit organization that assists lawyers, bar organizations, and others. Their mission is to educate, inspire, serve, and provide community to attorneys with practices in special needs and elder law.

    The logo for The American College of Trust and Estate Counsel.

    ACTEG fellowship is awarded based on exceptional skill & reputation. Lawyers must have more than 10 years experience in the practice of probate & trust law or estate planning–knowledge crucial in practicing elder law.

    Solkoff Legal is a member of the Elder Care Matters Alliance.

    Resource for elder and senior care experts with information & answers about a wide range of eldercare-related matters. Their primary areas of focus are elder law attorneys, home care providers, and senior living.

    The logo for Super Lawyers.

    Super Lawyers is a rating service of outstanding lawyers who have attained a high degree of peer recognition & professional achievement. Solkoff Legal has been recognized as experts in elder law, estate planning & probate.