Many people in South Florida signed a living will years ago, often on a printed form, and filed it away believing the hard decisions were taken care of. A Florida living will is an important document. But it was designed for a narrow set of medical situations near the end of life. Dementia usually unfolds over years, and most of those years fall outside what a standard living will covers.

If you are worried about Alzheimer's disease or another form of dementia, whether because of family history, an early diagnosis, or simply because you are planning responsibly, it helps to understand where the standard form stops and what else Florida law lets you put in place.

What a Florida living will actually does

Under Florida law, a living will lets a competent adult give directions about life-prolonging procedures. It applies only when the person "…has a terminal condition, has an end-stage condition, or is in a persistent vegetative state." (Fla. Stat. § 765.302(1).)

Florida's definition of an end-stage condition requires "progressively severe and permanent deterioration, and which, to a reasonable degree of medical probability, treatment of the condition would be ineffective." (§ 765.101(4).) Before anyone acts on a living will, the primary physician and "at least one other consulting physician must separately examine the patient." (§ 765.306.)

Notice what is missing from that list: dementia itself. Advanced dementia may eventually be found to be an end-stage condition, but that is a medical judgment that typically comes late in the illness. Until then, the living will generally sits on the shelf.

The gap: losing capacity long before the end stage

Florida presumes that adults can make their own health care decisions. "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." (§ 765.204(1).) Incapacity means being "physically or mentally unable to communicate a willful and knowing health care decision." (§ 765.101(10).)

With dementia, that point often arrives years before any end-stage finding. During those middle years, decisions about doctors, hospital stays, medications, and where you live still have to be made, and a living will does not make them. The Florida Department of Elder Affairs puts it plainly: "Most living wills cannot adequately foresee all of the clinical circumstances that may arise."

That is why dementia planning is about more than a living will. It is about choosing the right decision-maker and giving that person clear guidance.

Six things a standard form leaves out

1. A health care surrogate you choose, plus an alternate

A designation of health care surrogate names the person who will speak for you when you cannot. Florida requires the designation to be signed in front of two adult witnesses. The surrogate cannot serve as a witness, and at least one witness must be someone other than your spouse or a blood relative. (§ 765.202(1)–(2).) You can also name an alternate surrogate in case your first choice is unavailable. (§ 765.202(3).)

Your surrogate is required to make "only health care decisions for the principal which he or she believes the principal would have made." (§ 765.205(1)(b).) The better you document your wishes, the easier that job becomes.

2. Instructions for each stage of dementia

Florida does not have a separate "dementia directive" statute. But the law gives you room to write one into your documents. The suggested statutory living will form "may, but need not," be used, and it includes a space for "Additional Instructions (optional)." (§ 765.303(1).) An advance directive can address "any aspect of the principal's health care or health information." (§ 765.101(1).) And before a living will is carried out, "[a]ny limitations or conditions expressed orally or in a written declaration have been carefully considered and satisfied." (§ 765.304(2)(c).)

In practice, that means you can tell your surrogate and your doctors what you would want at mild, moderate, and severe stages. For example, you might address whether you would want hospitalization for an infection, or how you feel about a feeding tube. Under Florida law, life-prolonging procedures include "artificially provided sustenance and hydration," while comfort care and pain relief are not life-prolonging procedures. (§ 765.101(12).) Because two physicians determine whether "a medical condition or limitation referred to in an advance directive exists" (§ 765.306), stage-based instructions work best when they are tied to findings your doctors can actually make.

3. Access to your medical information right away

Under a standard designation, your surrogate's decision-making authority usually begins only after you are found to lack capacity. With dementia, your partner or chosen decision-maker may need to talk with your doctors well before then. Florida lets you make the surrogate's authority "to receive health information or make health care decisions, or both," exercisable "immediately without the necessity for a determination of incapacity." (§ 765.202(6).) The suggested statutory form includes a box to initial for exactly this purpose. (§ 765.203.)

Florida's statute speaks in terms of "health information." Separately, the federal HIPAA Privacy Rule generally requires a health care provider to treat a person with legal authority to make health decisions for an adult as that patient's "personal representative." (45 C.F.R. § 164.502(g)(2).) Making information access immediate, even if decision-making waits, can spare your loved ones a great deal of frustration at the nurses' station.

4. Where you want to live as care needs grow

Your surrogate can make placement decisions for you. Florida law provides that a surrogate "may authorize the admission, discharge, or transfer… licensed under chapter 400 or chapter 429." (§ 765.205(2).) A surrogate can also apply for Medicare and Medicaid on your behalf. (§ 765.205(1)(e).)

"Memory care" is a marketing term, not a separate Florida license. An assisted living facility that "advertises that it provides special care for persons with Alzheimer's disease or other related disorders must meet the following standards" set out in Florida law, including "activities specifically designed for persons who are cognitively impaired." (Fla. Stat. § 429.178.)

Your documents can say what matters to you: staying at home as long as it is safe, preferring a community where LGBTQ residents are welcomed and respected, and making sure your partner and chosen family can visit. A standard form says none of this.

5. A do-not-resuscitate order, which a living will is not

Many people are surprised to learn that paramedics cannot honor a living will as a DNR order. In Florida, "[a]n order not to resuscitate, to be valid, must be on the form adopted by rule of the department." (§ 401.45(3)(a).) That form is Department of Health Form DH 1896, incorporated in Fla. Admin. Code R. 64J-2.018. If the patient is incapacitated, the form may be signed by "the patient's health care surrogate or proxy as provided in chapter 765." (§ 401.45(3)(a).) If a DNR order is clinically appropriate, it is a conversation to have with your physician.

You may also have heard of POLST forms (physician orders for life-sustaining treatment). Florida has not enacted a POLST statute. A 2026 bill on patient-directed medical orders (SB 312, with companion HB 369) died in committee on March 13, 2026.

6. A backstop if guardianship is ever needed

Good planning usually avoids guardianship, but it is wise to plan for the possibility. "A competent adult may name a preneed guardian by making a written declaration that names such guardian to serve in the event of the declarant's incapacity." (§ 744.3045(1).) Producing that declaration creates "a rebuttable presumption that the preneed guardian is entitled to serve as guardian." (§ 744.3045(4).) The court "shall appoint" a qualified preneed guardian unless doing so is "contrary to the best interests of the ward." (§ 744.312(1).) Without one, Florida's preferences favor a person who "[i]s related by blood or marriage to the ward." (§ 744.312(2)(a).)

Why this matters for unmarried partners and chosen family

If you have not named a surrogate and you lose capacity, Florida law supplies a decision-maker from a statutory list, called a proxy. The list runs in order: a guardian, "[t]he patient's spouse," adult children, parents, adult siblings, other adult relatives, and only then "[a] close friend of the patient." (§ 765.401(1).) Each class acts only "if no individual in a prior class is reasonably available, willing, or competent to act." (§ 765.401(1).)

For an unmarried partner, that is a real problem. A partner of decades typically qualifies only as a "close friend," and only after presenting "an affidavit" showing "special care and concern" and regular contact. (§ 765.101(3).) A parent or sibling you have not spoken to in years would rank ahead. And 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." (§ 765.401(3).)

Married spouses rank near the top of the list. Even so, every couple benefits from naming an alternate and writing down their wishes. A signed living will "establishes a rebuttable presumption of clear and convincing evidence of the principal's wishes" (§ 765.302(3)), and a written surrogate designation puts the person you chose first, rather than leaving it to a statutory list.

A short planning checklist

1. Name a health care surrogate and at least one alternate, signed with the proper witnesses.
2. Decide whether your surrogate's access to health information should begin immediately.
3. Add written, stage-based guidance about the care you would and would not want as dementia progresses.
4. Record your wishes about living at home, assisted living, and who may visit.
5. Talk with your physician about whether a DNR order (Form DH 1896) is appropriate now or later.
6. Consider a preneed guardian declaration as a backstop.
7. Give copies to your surrogate, alternates, and doctors, and review the documents after a diagnosis, a move, or a change in relationships.

We can help you plan

These conversations are easier while you can still lead them. The Law Office of Shawn C. Newman, P.A. helps individuals and couples throughout Broward, Palm Beach, and Miami-Dade counties put thoughtful health care and incapacity plans in place. Initial consultations are free and can be held at our office at 710 NE 26th St, Wilton Manors, FL 33305, or by Zoom.

Call us at (954) 563-9160 to schedule a time to talk. You can also learn more at www.shawnnewman.com.

Give us a call. We can help.

Disclaimer: This article is for general educational purposes only and is not legal advice. Reading it does not create an attorney-client relationship with the Law Office of Shawn C. Newman, P.A. Laws change, and every situation is different. Please consult an attorney about your specific circumstances before acting on any information here.