Health Care Surrogate

A Designation of Health Care Surrogate is an advance directive by you, effective during your lifetime unless revoked, by which you express your instructions or desires concerning any aspect of your health care or health information. Effective October 1, 2015 and thereafter, the person selected by you to serve as your Health Care Surrogate may be authorized to act immediately by assisting in making health care decisions for you, and by accessing your health care information. As long as you are capable of making your own health care decisions, your own health care decisions take precedence over decisions made by the surrogate that present a material conflict. Alternatively, you may limit your surrogate to act only in the event that you are incapacitated or incompetent to make your own health care decisions and to direct your own health care treatment (i.e., your inability to communicate a health care decision or to provide informed consent), as determined by your physician.

Signature and witness requirements: This planning document must be signed by you, or on your behalf, in the presence of two subscribing witnesses. If you have the mental capacity but not the physical ability to sign, you may direct another person to sign the Designation of Health Care Surrogate for you. The designated surrogate you name may not act as a witness, and at least one witness may not be either your spouse or blood relative.

Are Alternate Health Care Surrogate(s) permitted? You may wish to designate one or more alternate surrogates, who would be authorized to act if your named surrogate is not able, is not willing, or is not reasonably available to act.

What if I do not have a Designation of Health Care Surrogate? If you do not designate a Health Care Surrogate, and you can no longer make health care decisions for yourself, a health care proxy decision maker will be assigned that task by your health care provider’s bioethics committee. That person is selected in order of statutory priority giving your Guardian, then your spouse, first priority, and then other family members under Florida’s laws.

What is the difference between a Living Will and a Designation of Health Care Surrogate? While your Designation of Health Care Surrogate can cover any health care decision or release of your health information, your Living Will is the recognized advance directive which authorizes and evidences your consent to the withholding or withdrawal of life-prolonging procedures.

What is the role of my Elder Law Attorney in helping designate my Health Care Surrogate? With your Living Will, the Designation of Health Care Surrogate is an advance directive that has huge implications on who will make health care decisions for you, and how the end of your life occurs. A qualified Elder Law Attorney can help you to be sure those advance directives are consistent with your wishes, and thereby help reduce the risk that any court determination of your incapacity and appointment of a legal guardian for your person is required.

Authority: Chapter 765, Parts I – IV, ss. 765.101 – 765.404, Florida Statutes (2015).

Authored by Grady Williams
Reviewed by Ailish O’Connor