Healthcare Surrogate Designation and Living Wills in Florida

One of the most important decisions you can make as part of your estate plan is designating who will make medical decisions on your behalf if you become unable to do so yourself. In Florida, the Health Care Surrogate Act, codified in Florida Statutes Chapter 765, governs how individuals can appoint a healthcare surrogate and express their wishes regarding medical treatment through advance directives, including living wills. At the Law Offices of Albert Goodwin, PA, we help clients throughout Miami-Dade, Broward, and Palm Beach counties prepare healthcare surrogate designations, living wills, and HIPAA authorizations that protect their rights and give their families clear guidance during difficult moments. Call us at 786-522-1411 or email us at [email protected] to schedule a consultation.

What Is a Healthcare Surrogate Designation?

A healthcare surrogate designation is a legal document in which a competent adult names another person to make healthcare decisions on their behalf in the event they lose the capacity to make those decisions themselves. Under Florida Statutes § 765.202, any competent adult may designate a surrogate by executing a written document that is signed in the presence of two subscribing witnesses, at least one of whom is not the spouse or a blood relative of the principal. The designation does not require notarization, although notarizing the document is recommended for practical purposes.

The healthcare surrogate is sometimes referred to as a healthcare proxy or healthcare agent. This person steps into your shoes and communicates with your physicians and medical providers when you cannot speak for yourself. Choosing the right surrogate is critical because this individual will potentially make life-and-death decisions on your behalf. Unlike a durable power of attorney, which covers financial matters, the healthcare surrogate designation is limited to medical decisions.

Who Can Serve as a Healthcare Surrogate in Florida

Under Florida law, any competent adult may serve as a healthcare surrogate, with certain restrictions. The following individuals are generally prohibited from serving as a surrogate unless they are related to the principal by blood, marriage, or adoption:

• The principal's treating healthcare provider
• An employee of the principal's treating healthcare provider
• An operator or employee of a healthcare facility where the principal is receiving care

You may also designate an alternate surrogate who will serve if the primary surrogate is unwilling or unable to perform the duties. Naming an alternate is strongly recommended because there is no guarantee that your first choice will be available when the need arises.

When Healthcare Surrogate Authority Begins

Under Florida Statutes § 765.204, the authority of a healthcare surrogate begins when the principal's attending physician determines that the principal lacks the capacity to make their own healthcare decisions. Capacity in this context means the ability to understand the nature and consequences of a proposed medical treatment or procedure and to make an informed decision regarding it. The surrogate's authority continues for as long as the principal remains incapacitated.

It is important to understand that the surrogate does not have any authority while the principal retains capacity. Even after the surrogate's authority has been activated, if the principal regains capacity, the surrogate's authority is suspended and the principal resumes the right to make their own healthcare decisions.

Living Wills and Advance Directives in Florida

A living will, also known as an advance directive, is a separate legal document that allows you to express your wishes regarding end-of-life medical treatment in advance. Under Florida Statutes § 765.302, a competent adult may execute a living will directing the withholding or withdrawal of life-prolonging procedures in the event they are diagnosed with a terminal condition, have an end-stage condition, or are in a persistent vegetative state.

A living will must be signed by the principal in the presence of two witnesses, at least one of whom is not a spouse or blood relative of the principal. The living will provides written instructions to your physicians about the types of medical treatment you do or do not want when you are no longer able to communicate your wishes. Common directives include whether you want mechanical ventilation, artificial nutrition and hydration, dialysis, or other life-sustaining treatments.

While a healthcare surrogate designation and a living will serve different functions, they work together as part of a comprehensive incapacity plan. The healthcare surrogate makes decisions in real time based on your known wishes and the medical circumstances. The living will provides the surrogate and your medical team with documented evidence of your intentions, particularly regarding end-of-life care.

Do Not Resuscitate Orders

A Do Not Resuscitate (DNR) order is a medical order issued by a physician directing that cardiopulmonary resuscitation not be administered to a patient in the event of cardiac or respiratory arrest. In Florida, a DNR order is governed by Florida Statutes § 765.101(4) and related provisions. A DNR order is distinct from a living will. While a living will expresses your general wishes about life-prolonging procedures, a DNR order is a specific physician order that applies in emergency situations.

A DNR order can be executed by the patient or, if the patient lacks capacity, by the patient's healthcare surrogate or court-appointed guardian. Emergency medical personnel are required to follow a valid DNR order. If you wish to have a DNR order in place, this should be discussed with your physician and documented as part of your overall advance directive planning.

HIPAA Authorization

The Health Insurance Portability and Accountability Act (HIPAA) restricts the disclosure of your protected health information. Even if you have designated a healthcare surrogate, medical providers may be reluctant to share your medical records or discuss your condition with your surrogate without a signed HIPAA authorization. A HIPAA release form authorizes your healthcare providers to share your medical information with your designated surrogate and other individuals you specify, such as family members or your attorney.

A HIPAA authorization should be executed at the same time as your healthcare surrogate designation and living will. Without it, your surrogate may face unnecessary delays and obstacles when trying to obtain the information needed to make informed medical decisions on your behalf.

Default Surrogate Hierarchy Under Florida Law

If you have not designated a healthcare surrogate and you become incapacitated, Florida Statutes § 765.401 establishes a default hierarchy of individuals who may make healthcare decisions on your behalf. The following individuals may serve as surrogate, in order of priority:

1. A court-appointed guardian who has been authorized to consent to medical treatment
2. The patient's spouse
3. An adult child of the patient, or if more than one adult child, a majority of the adult children who are reasonably available for consultation
4. A parent of the patient
5. An adult sibling of the patient, or if more than one, a majority of the adult siblings who are reasonably available for consultation
6. An adult relative of the patient who has maintained regular contact with the patient and who is familiar with the patient's activities, health, and religious or moral beliefs
7. A close friend of the patient
8. A clinical social worker licensed under Chapter 491 or a person selected by the bioethics committee of the facility where the patient is located

Relying on the default hierarchy is risky. Family disagreements about medical care are common, and the statutory list may not reflect your actual preferences. A spouse you are separated from but not yet divorced from would take priority over an adult child who has been your primary caregiver. Executing a healthcare surrogate designation eliminates this uncertainty and ensures that the person you trust most is the one making decisions.

Surrogate's Authority and Limitations

Once the surrogate's authority has been activated, the surrogate has the power to make all healthcare decisions that the principal could have made, subject to certain limitations. The surrogate must make decisions consistent with the principal's known wishes, as expressed in the living will or through prior oral statements. If the principal's wishes are not known, the surrogate must act in the principal's best interest.

Under Florida Statutes § 765.205, the surrogate is authorized to:

• Consent to or refuse medical treatment, surgical procedures, and diagnostic tests
• Apply for public benefits to defray the cost of healthcare
• Access the principal's medical records
• Authorize the release of medical information
• Make decisions regarding the provision, withholding, or withdrawal of life-prolonging procedures if the principal has a terminal condition, end-stage condition, or is in a persistent vegetative state

However, the surrogate may not authorize the withholding or withdrawal of life-prolonging procedures unless the attending physician and a second consulting physician have confirmed the diagnosis of a qualifying condition. The surrogate must also consider whether the benefits of treatment outweigh the burdens and act consistently with the principal's best interest as reasonably known.

Revoking a Healthcare Surrogate Designation or Living Will

Under Florida Statutes § 765.104, a principal may revoke a healthcare surrogate designation or living will at any time by any of the following methods:

• Signing a written revocation
• Physically destroying the document
• Orally expressing an intent to revoke in the presence of two witnesses
• Executing a new designation or living will that is materially different from the prior one

The revocation is effective immediately upon communication to the surrogate or healthcare provider. If you change your mind about your surrogate or your end-of-life wishes, it is important to update your documents promptly and ensure that your healthcare providers, surrogate, and family members receive copies of the updated documents.

Interaction with Guardianship

A properly executed healthcare surrogate designation can help your family avoid the need for a court-appointed guardianship over your person for medical decisions. Guardianship proceedings under Florida Statutes Chapter 744 are expensive, time-consuming, and involve significant court oversight. If you already have a healthcare surrogate in place, there is generally no need for a guardian to be appointed solely for medical decision-making purposes.

However, if no healthcare surrogate has been designated and family members disagree about the appropriate course of treatment, a guardianship proceeding may become necessary. In such cases, the court will appoint a guardian of the person who is then authorized to make medical decisions for the ward. This outcome can be avoided entirely by executing a healthcare surrogate designation and living will while you are still competent to do so.

Contact a Florida Healthcare Surrogate Attorney

Planning for incapacity is just as important as planning for the distribution of your assets after death. A healthcare surrogate designation, living will, and HIPAA authorization are essential components of any comprehensive estate plan. These documents ensure that your medical wishes are respected, that the person you trust most is empowered to act on your behalf, and that your family is spared the burden of uncertainty during a medical crisis.

At the Law Offices of Albert Goodwin, PA, we prepare healthcare surrogate designations, living wills, HIPAA authorizations, durable powers of attorney, and other incapacity planning documents for clients throughout South Florida. Call us at 786-522-1411 or email us at [email protected] to schedule a consultation at our office located at 121 Alhambra Plz #1000, Coral Gables, FL 33134.