Florida Designation of Health Care Surrogate Law

Power of Attorney and Health Care – General – Florida


(§§ 765.101, 765.104, 765.306, and 765-201 through 765-205)

An “advance directive” is a witnessed written document or oral statement in which instructions are given by a principal or in which the principal’s desires are expressed concerning any aspect of the principal’s health care, and includes, but is not limited to, the designation of a health care surrogate, a living will, or an anatomical gift.

An “end-stage condition” is a condition that is caused by injury, disease, or illness which has resulted in severe and permanent deterioration, indicated by incapacity and complete physical dependency, and for which, to a reasonable degree of medical certainty, treatment of the irreversible condition would be medically ineffective.

A “health care decision” is:

Informed consent, refusal of consent, or withdrawal of consent to any and all health care, including life-prolonging procedures.

The decision to apply for private, public, government, or veterans’ benefits to defray the cost of health care.

The right of access to all records of the principal reasonably necessary for a health care surrogate to make decisions involving health care and to apply for benefits.

The decision to make an anatomical gift.

“Incapacity” or “incompetent” is when the patient is physically or mentally unable to communicate a willful and knowing health care decision.

“Informed consent” is consent voluntarily given by a person after a sufficient explanation and disclosure of the subject matter involved to enable that person to have a general understanding of the treatment or procedure and the medically acceptable alternatives, including the substantial risks and hazards inherent in the proposed treatment or procedures, and to make a knowing health care decision without coercion or undue influence.

A “life-prolonging procedure” is any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function. The term does not include the administration of medication or performance of medical procedure, when such medication or procedure is deemed necessary to provide comfort care or to alleviate pain.

A “Living will” or “declaration” is:

A witnessed document in writing, voluntarily executed by the principal in accordance with §765.302; or

A witnessed oral statement made by the principal expressing the principal’s instructions concerning life-prolonging procedures.

A “persistent vegetative state” is a permanent and irreversible condition of unconsciousness in which there is:

The absence of voluntary action or cognitive behavior of any kind.

An inability to communicate or interact purposefully with the environment.

A “principal” is a competent adult executing an advance directive and on whose behalf health care decisions are to be made.

A “proxy” is a competent adult who has not been expressly designated to make health care decisions for a particular incapacitated individual, but who is authorized pursuant to §765.401 to make health care decisions for an individual.

A “surrogate” is any competent adult expressly designated by a principal to make health care decisions on behalf of the principal upon the principal’s incapacity.

A “terminal condition” means a condition caused by injury, disease, or illness from which there is no reasonable medical probability of recovery and which, without treatment, can be expected to cause death.

A written document designating a surrogate to make health care decisions for a principal must be signed by the principal in the presence of two subscribing adult witnesses. A principal unable to sign the instrument may, in the presence of witnesses, direct that another person sign the principal’s name as required herein. An exact copy of the instrument must be provided to the surrogate.

The person designated as surrogate cannot act as witness to the execution of the document designating the health care surrogate. At least one person who acts as a witness must be neither the principal’s spouse nor blood relative.

A document designating a health care surrogate may designate an alternate surrogate provided the designation is explicit. The alternate surrogate assumes his or her duties as surrogate for the principal if the original surrogate is unwilling or unable to perform his or her duties. The principal’s failure to designate an alternate surrogate does not invalidate the designation.

If neither the designated surrogate nor the designated alternate surrogate is able or willing to make health care decisions on behalf of the principal and in accordance with the principal’s instructions, the health care facility may seek the appointment of a proxy.

A principal may designate a separate surrogate to consent to mental health treatment in the event that the principal is determined by a court to be incompetent to consent to mental  health treatment and a guardian advocate is appointed as provided under §394.4598.  Unless the document designating the health care surrogate expressly states otherwise, a court shall assume that the health care surrogate authorized to make health care decisions under this chapter is also the principal’s choice to make decisions regarding mental health treatment.

Unless the document states a time of termination, the designation remains in effect until revoked by the principal.

A written and properly executed designation of a health care surrogate establishes a rebuttable presumption of clear and convincing evidence of the principal’s designation of the surrogate.

A written designation of a health care surrogate is not required to be in the statutory form.

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.

If a principal’s capacity to make health care decisions for herself or himself or provide informed consent is in question, the attending physician shall evaluate the principal’s capacity and, if the physician concludes that the principal lacks capacity, enter that evaluation in the principal’s medical record. If the attending physician has a question as to whether the principal lacks capacity, another physician shall also evaluate the principal’s capacity, and if the second physician agrees that the principal lacks the capacity to make health care decisions or provide informed consent, the health care facility shall enter both physician’s evaluations in the principal’s medical record.

If the principal has designated a health care surrogate or has delegated authority to make health care decisions to an attorney in fact under a durable power of attorney, the facility shall notify such surrogate or attorney in fact in writing that her or his authority under the instrument has commenced.

Upon commencement of the surrogate’s authority, a surrogate who is not the principal’s spouse must notify the principal’s spouse or adult children of the principal’s designation of the surrogate. In the event the attending physician determines that the principal has regained capacity, the authority of the surrogate ceases, but recommences if the principal subsequently loses capacity.

(4)  A determination made pursuant to this section that a principal lacks capacity to make health care decisions shall not be construed as a finding that a principal lacks capacity for any other purpose.

In the event the surrogate is required to consent to withholding or withdrawing life-prolonging procedures, the patient’s attending or treating physician and at least one other consulting physician must separately examine the patient. The findings of each that examination must be documented in the patient’s medical record and signed by each examining physician before life-prolonging procedures may be withheld or withdrawn.

The surrogate, in accordance with the principal’s instructions and unless limited by those instructions:

Has authority to act for the principal and to make all health care decisions for the principal during the principal’s incapacity.

Must consult expeditiously with appropriate health care providers to provide informed consent, and may make only health care decisions for the principal which he or she believes the principal would have made under the circumstances if the principal were capable of making such decisions.

May provide written consent using an appropriate form whenever consent is required, including a physician’s order not to resuscitate.

Must be provided access to the appropriate medical records of the principal.

May apply for public benefits, such as Medicare and Medicaid, for the principal and have access to information regarding the principal’s income and assets and banking and financial records to the extent required to make application.

If, after the appointment of a surrogate, a court appoints a guardian, the surrogate continues to make health care decisions for the principal unless the court has modified or revoked the authority of the surrogate.

An advance directive or designation of a surrogate may be amended or revoked at any time by a competent principal:

By means of a signed, dated writing;

By means of the physical cancellation or destruction of the advance directive by the principal or by another in the principal’s presence and at the principal’s direction;

By means of an oral expression of intent to amend or revoke; or

By means of a subsequently executed advance directive that is materially different from a previously executed advance directive.

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