Review of Designation of Health Care Surrogate
An important part of every estate plan is a designation of health care surrogate under Chapter 765 of the Florida Statutes (“Chapter 765”), which allows a principal to appoint a health care surrogate (“Surrogate”) to make health care decisions for the principal if the principal cannot make these decisions. Prior to October 1, 2015, a Surrogate could not act on behalf of the principal unless a written determination of the principal’s incapacity was made by a doctor or a court. This was very problematic for families, doctors and practitioners as a principal may regain capacity or, in many situations, may have fluctuating capacity and incapacity, which would require determinations of incapacity each time the health care surrogate is required to act on the principal’s behalf. This process was a hindrance on the timely assistance of the elderly and sick patients.
Effective October 1, 2015, the Florida legislature amended Chapter 765 to give the principal several options to alleviate this problem. Now a principal has three choices regarding when and to what extent a Surrogate can act. First, the designation can require the Surrogate to obtain a written determination of the principal’s incapacity to act (the same as under prior law). Second, the designation can allow the Surrogate to access the principal’s protected medical records without a determination of the principal’s incapacity. Third, the designation can allow the Surrogate to act for the principal without a written determination of the principal’s incapacity. Regardless of when a Surrogate’s authority exists under the designation, the patient’s wishes are controlling while the patient is still competent.
Under Florida law, a minor does not have the legal right to consent to medical care or treatment, but a parent or legal guardian can give such medical consent for the minor. Under prior law, there was no authority for a parent or legal guardian to appoint a health care surrogate for a minor. If a parent or legal guardian went on vacation and left their minor children with a caregiver, there was no legal authority for the caregiver to act as a surrogate on behalf of the parent or legal guardian to consent to the medical care or treatment of the minor children.
Chapter 765 now creates statutory authority for a parent or legal guardian to designate a health care surrogate to act on their behalf to consent to medical care or treatment for a minor. The designation must be in writing and signed by two witnesses (the designated surrogate may not be a witness). The appointment of a health care surrogate for a minor remains in place until the termination date provided in the designation (if any), the minor reaches the age of majority, or the designation is revoked.
It is important for clients to review their designation of health care surrogate to ensure that such documents reflect their wishes.