The Florida Living Will: Alive and Well
![handle is hein.journals/stet19 and id is 187 raw text is: COMMENTS
THE FLORIDA LIVING WILL: ALIVE AND
WELL?
Nearly a decade after the enactment of the first living will stat-
ute in the United States,' the Florida legislature adopted the Life-
Prolonging Procedure Act in 1984.2 This Act provides an individual
the right to make an advance declaration3 governing the with-
drawal or withholding of life-sustaining treatment. Although origi-
nally enacted to clarify patient rights and to establish guidelines for
making and upholding a living will, the Act has had a limited effect.4
Many provisions within the Act restrict its application. For ex-
ample, ambiguous statutory terminology has raised more questions
than it has answered. Undoubtedly, conflicting viewpoints concerning
the scope of the patient's right to die have led to some of the Act's
limitations. This Comment provides a detailed analysis of Florida's
Life-Prolonging Procedure Act and its limitations. The Comment
1. California Natural Death Act, CAL. HEALTH & SAFETY CODE §§ 7185-7195 (West Supp.
1976).
2. FLA. STAT. §§ 765.01-.15 (1987). Florida was the twentieth state to adopt a living will
statute. Thirty-eight states had enacted such legislation prior to 1988. Nineteen of those states
adopted their statutes in 1984 and 1985. See Gelfand, Living Will Statutes: The First Decade,
1987 Wis. L. REv. 737, 739-40 [hereinafter Gelfand] (sets forth the statutes enacted through
November 1987 in chronological order).
3. FLA. STAT. § 765.02 (1987). See infra note 95 for the suggested form declaration. No-
where in the statute is the phrase living will mentioned. Considering its purpose, the term
living will is actually a misnomer. See Martyn & Jacobs, Legislating Advance Directives for
the Terminally Ill: The Living Will and Durable Power of Attorney, 63 NEB. L. REv. 779, 787
(1984) (The term 'Living Will' was first used in 1967 by Dr. Louis Kutner to describe a docu-
ment drafted by a competent adult as an advance directive . . . provid[ing] that no extraordi-
nary artificial life-support systems may be used to prolong the drafter's life).
4. Only one court has directly construed the statute since its enactment. See In re
Guardianship of Browning, 543 So. 2d 258, 261 (Fla. 2d DCA 1989) (although a guardian of an
incompetent patient does not have the right to make a decision to remove nutrition and hydra-
tion tubes under chapter 765 of the Florida Statutes, such a right does exist under article I,
section 23, of the Florida Constitution). See also Corbett v. D'Allessandro, 487 So. 2d 368, 370-
71 (Fla. 2d DCA 1986) (court mentioned the Act, but, in ignoring a statutory prohibition re-
garding the removal of nutrition and hydration tubes, avoided interpreting it). See infra note 7
for further discussion of D'Allessandro.](ViewImageLocal?handle=hein.journals/stet19&div=11&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
The Florida Living Will: Alive and Well
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most