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What happens if a person does not have a living will

Hollywood, FL |

My 51 year old husband was just diagnosed with advanced lung cancer that has spread to his brain. He does not have a living will. Am I able to act and made medical desions for him such as declining life support if and when the time comes. He is not coherant and this happened very quickly.

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Attorney answers 5


If he dies intestate (without a will), then the intestate laws of Florida would apply and his assets probably won't get distributed the way he would have wanted it. If your husband is unable to make decisions or care for himself, you may want to look into filing a motion with the probate court to have yourself declared as his guardian.

THESE COMMENTS ARE NOT LEGAL ADVICE. They are provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction. Answering this question does not create an attorney-client relationship or otherwise require further consultation.


I presume the cancer has not affected his ability to enter into business and personal affairs. If this is the case, you just need to have a Living Will and a Health Care Surrogate Designation prepared. However, he would need to have the mental capacity to sign and designate who would be responsible to make those medical decisions for him. If his medical situation has now put him in a situation where he does not have the mental capacity, a guardianship should be established.


I'm sorry about your husband's illness. As his wife, you will be able to make medical decisions for him. Consult with local hospice, and/or with your local hospital where his care is being given. It should not be necessary to go to court to obtain these basic powers, unless you think the hospital would for some reason be reluctant to acknowledge your position, or if you anticipate objections from other parties (for example, your husband's living parent(s)).


Sorry for your circumstances. Good answers above-in summary-quickly get a power of attorney, health care surrogate, will, and living will signed by your husband.
if you wait too late-an expensive guardianship proceeding will be necessary.


Because you state that your husband is incoherent, it is unlikely that he may now sign a living will and designation of health care surrogate. For such a situation, Florida law provides for a person to serve as a health care proxy in Section 765.401, Florida Statutes.

If there is not a court appointed guardian, you as the spouse would be that proxy and can act and make medical decisions for him. His adult children would be next in line if you were unable to act for him. That law states in pertinent part:

765.401 The proxy.--
(1) If the patient has not executed an advance directive, or designated a surrogate to execute an advance directive, or the designated or alternate surrogate is no longer available to make health care decisions, health care decisions may be made for the patient by any of the following individuals, in the following order of priority, if no individual in a prior class is reasonably available, willing, or competent to act:
(a) The judicially appointed guardian of the patient, who has been authorized to consent to medical treatment, if such guardian has previously been appointed; however, this paragraph shall not be construed to require such appointment before a treatment decision can be made under this subsection;
(b) The patient's spouse;
(c) An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation;
(2) Any health care decision made under this part must be based on the proxy's informed consent and on the decision the proxy reasonably believes the patient would have made under the circumstances.
(3) Before exercising the incapacitated patient's rights to select or decline health care, the proxy must comply with the pertinent provisions applicable to surrogates under this chapter, except that a proxy's decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent.

The pertinent provisions applicable to surrogates under this chapter and procedures to follow are set forth in Section 765.305 Procedure in absence of a living will.--
(1) In the absence of a living will executed pursuant to s. 765.303, the decision to withhold or withdraw life-prolonging procedures from a patient may be made by a health care surrogate designated by the patient pursuant to part II unless the designation limits the surrogate's authority to consent to the withholding or withdrawal of life-prolonging procedures.
(2) Before exercising the incompetent patient's right to forego treatment, the surrogate must be satisfied that:
(a) The patient does not have a reasonable probability of recovering competency so that the right could be exercised by the patient.
(b) The patient's physical condition is terminal.

I am sorry about your husband's illness and that you find yourself in such a terrible position. Your husbands unexpected illness illustrates why it is so important for all of us to have living wills and designations of health care surrogates and, just as important, to have durable powers of attorney.

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