Florida POA for Healthcare Surrogate Law


Power of Attorney and Health Care – General – Florida

Related Florida Legal Forms

A durable power of attorney is a written power of attorney by which a principal designates another as the principal’s attorney in fact. A durable power of attorney must be in writing, must be executed with the same formalities required for the conveyance of real property by Florida law, and must contain the words: “This durable power of attorney is not affected by subsequent incapacity of the principal except as provided in §709.08, Florida Statutes”; or similar words that show the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent incapacity.

A durable power of attorney is exercisable as of the date of execution.

An attorney in fact must be a natural person who is 18 years of age or older and is of sound mind, or a financial institution (as defined in chapter 655, with trust powers, having a place of business in this state and authorized to conduct trust business in this state).

A durable power of attorney is generally nondelegable.

An attorney in fact may exercise the authority granted under a durable power of attorney until the principal dies, revokes the power, or is adjudicated totally or partially incapacitated by a court of competent jurisdiction. In the event of a court determination of total or partial incapacity, the court may determine that certain authority granted by the durable power of attorney is to remain exercisable by the attorney in fact.

A third party may rely upon the authority granted in a durable power of attorney until the third party has received notice of the total or partial termination of the power of attorney. Until a third party has received notice of revocation, the third party may act in reliance upon the authority granted in the durable power of attorney.

A durable power of attorney may provide that the attorney in fact is not liable for any acts or decisions made by the attorney in fact in good faith and under the terms of the durable power of attorney.

Unless otherwise stated in the durable power of attorney, the durable power of attorney applies to any interest in property owned by the principal.

Except as otherwise limited by law or by a durable power of attorney, the attorney in fact has full authority to perform every act authorized and specifically enumerated in a durable power of attorney.

An attorney in fact may not:

Perform duties under a contract that requires the exercise of personal services of the principal;

Make any affidavit as to the personal knowledge of the principal;

Vote in any public election on behalf of the principal;

Execute or revoke any will or codicil for the principal;

Create, amend, modify, or revoke any document or other disposition effective at the principal’s death or transfer assets to an existing trust created by the principal unless expressly authorized by the power of attorney; or

Exercise powers and authority granted to the principal as trustee or as court appointed fiduciary.

If specifically granted in the durable power of attorney, the attorney in fact may make health care decisions on behalf of the principal, including, but not limited to, those set forth in chapter 765.

An attorney in fact is a fiduciary who must observe the standards of care applicable to trustees. An attorney in fact is not liable to third parties for any act pursuant to the durable power of attorney if the act was authorized at the time. If the exercise of the power is improper, the attorney in fact is liable to interested persons for damage or loss resulting from a breach of fiduciary duty by the attorney in fact to the same extent as the trustee of an express trust.

Unless the durable power of attorney provides otherwise:

If a durable power of attorney is vested jointly in two attorneys in fact by the same instrument, concurrence of both is required on all acts in the exercise of the power.

If a durable power of attorney is vested jointly in three or more attorneys in fact by the same instrument, concurrence of a majority is required in all acts in the exercise of the power.

An attorney in fact who has not concurred in the exercise of authority is not liable to the principal or any other person for the consequences of the exercise.

If the attorney in fact has accepted appointment either expressly in writing or by acting under the power, the attorney in fact is not excused from liability for failure either to participate in the administration of assets subject to the power or for failure to attempt to prevent a breach of fiduciary obligations thereunder.

Unless the durable power of attorney provides otherwise, all authority vested in multiple attorneys in fact may be exercised by the one or more that remain after the death, resignation, or incapacity of one or more of the multiple attorneys in fact.

DESIGNATION OF HEALTH CARE SURROGATE
(§§ 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.

LIVING WILL
(§§ 765.101, 765.104, and 765.301 through 765.309)

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 competent adult may, at any time, make a living will or written declaration and direct the providing, withholding, or withdrawal of life-prolonging procedures in the event that he or she has a terminal condition, has an end-stage condition, or is in a persistent vegetative state.

A living will must be signed by the principal in the presence of two subscribing witnesses, one of whom is neither a spouse nor a blood relative of the principal. If the principal is physically unable to sign the living will, one of the witnesses must subscribe the principal’s signature in the principal’s presence and at the principal’s direction.

It is the responsibility of the principal to provide for notification to her or his attending or treating physician that the living will has been made. An attending or treating physician or health care facility which is so notified must make the living will or a copy thereof a part of the principal’s medical records.

A properly executed living will establishes a rebuttable presumption of clear and convincing evidence of the principal’s wishes.

The statutory form is suggested but is not required.

If a person has made a living will expressing his or her desires concerning life-prolonging procedures but has not designated a surrogate to execute his or her wishes concerning life-prolonging procedures or appointed a health care surrogate, the attending physician should proceed as directed by the principal in the living will.

Before proceeding in accordance with the principal’s living will, it must be determined that:

The principal does not have a reasonable medical probability of recovering capacity so that the right could be exercised directly by the principal.

The principal has a terminal condition, has an end-stage condition, or is in a persistent vegetative state.

Any limitations or conditions expressed orally or in a written declaration have been carefully considered and satisfied.

In determining whether the patient has a terminal condition, has an end-stage condition, or is in a persistent vegetative state or may recover capacity, or whether a medical condition or limitation referred to in an advance directive exists, 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.

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.

ANATOMICAL GIFTS
(§§ 732.910 through 732.922)

Any person who may make a will may give all or part of his or her body for any statutorily allowed purpose. An anatomical gift to takes effect upon death.

An anatomical gift may be made by will. The gift becomes effective upon the death of the testator without waiting for probate. If the will is not probated or if it is declared invalid for testamentary purposes, the gift is nevertheless valid to the extent that it has been acted upon in good faith.

An anatomical gift may also be made by a document other than a will. The gift becomes effective upon the death of the donor. The document must be signed by the donor in the presence of two witnesses who shall sign the document in the donor’s presence. If the donor cannot sign, the document may be signed for him or her at the donor’s direction and in his or her presence and the presence of two witnesses who must sign the document in the donor’s presence.

Delivery of the document of gift during the donor’s lifetime is not necessary to make the gift valid.

The statutory “Uniform Donor Card” is sufficient to make an anatomical gift.

If an anatomical gift is made through the program established by the Agency for Health Care Administration and the Department of Highway Safety and Motor Vehicles, the completed donor registration card must be delivered to the Department of Highway Safety and Motor Vehicles.

If the donor withdraws the gift, the records of the Department of Highway Safety and Motor Vehicles must be updated to reflect such withdrawal.

If a gift is not made through the program established by the Agency for Health Care Administration and the Department of Highway Safety and Motor Vehicles and is made by the donor to a specified donee, the document, other than a will, may be delivered to the donee to expedite the appropriate procedures immediately after death, but delivery is not necessary to the validity of the gift.

A donor may amend or revoke an anatomical gift by:

The execution and delivery to the donee of a signed statement.

An oral statement that is:

Made to the donor’s spouse; or

Made in the presence of two persons and communicated to the donor’s family or attorney or to the donee.

A statement during a terminal illness or injury addressed to an attending physician, who must communicate the revocation of the gift to the procurement organization that is certified by the state.

A signed document found on the donor’s person or in the donor’s effects.

Any gift made by a will may also be amended or revoked in the manner provided for amendment or revocation of wills.

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