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- A health care surrogate designation is one kind of advance directive
- Florida has specific signing rules
- The document can separate information access from decision-making
- Capacity remains central even after the document is signed
- The surrogate follows the principal’s instructions
- Amendment and revocation do not require one exclusive method
- Without an available surrogate, Florida uses a proxy hierarchy
- Health care facilities have separate duties
- Sources
Key Facts
- Florida state level: Florida law allows a principal to designate a health care surrogate to make health care decisions, receive health information, or both.
- Florida state level: The designation must be signed in the presence of two adult witnesses; the surrogate cannot serve as a witness, and at least one witness must be neither the principal’s spouse nor blood relative.
- Florida state level: A designation may authorize the surrogate to receive health information, make health care decisions, or both.
- Florida state level: The principal’s wishes control while the principal has decision-making capacity.
- Florida state level: A competent principal may amend or revoke an advance directive through any method allowed by section 765.104.
“Medical power of attorney” is a common search term, but Florida’s statute uses a different name: designation of health care surrogate. The document names a person, called the surrogate, to receive health information, make health care decisions, or exercise both forms of authority for the principal who signed it.
A health care surrogate designation is one kind of advance directive
Florida Statutes section 765.101 treats a health care surrogate designation as an advance directive. The same statutory category also includes a living will and an anatomical gift. These documents are related, but they do not perform identical functions.
A living will records instructions about life-prolonging procedures under the circumstances covered by Florida law. A surrogate designation identifies a decision-maker and can define that person’s authority.
Florida has specific signing rules
Section 765.202 requires the designation to be in writing and signed by the principal in the presence of two subscribing adult witnesses. If the principal cannot sign, another person may sign the principal’s name at the principal’s direction and in the witnesses’ presence.
The designated surrogate cannot act as a witness. At least one witness must be neither the principal’s spouse nor a blood relative. The statute also requires an exact copy of the instrument to be provided to the surrogate.
An alternate surrogate may be named explicitly. The alternate can act if the original surrogate is unwilling, unable, or not reasonably available. Failing to name an alternate does not invalidate the original designation.
The document can separate information access from decision-making
Florida’s suggested form in section 765.203 separates authority to receive health information from authority to make health care decisions. A designation can grant either authority or both, and it can state specific instructions and restrictions.
The statute ordinarily connects decision-making authority with incapacity, but section 765.202 allows the document to make authority to receive information, make decisions, or both exercisable immediately. Florida’s suggested form provides separate initial boxes for those choices. Examples of advance-directive formats can therefore look different depending on the authority being granted; advance directive examples are not substitutes for checking Florida’s execution rules.
Capacity remains central even after the document is signed
Section 765.204 presumes that the principal can make health care decisions unless the principal is determined to be incapacitated. While the principal has decision-making capacity, the principal’s own wishes control.
The statute describes a capacity determination by the attending physician and provides additional procedures when the physician is uncertain or another physician disagrees. Any instruction or health care decision made by a capable principal supersedes a materially conflicting instruction or decision made by the surrogate.
The surrogate follows the principal’s instructions
Under section 765.205, the surrogate acts in accordance with the principal’s instructions unless the principal expressly limited the authority. During the principal’s incapacity, the surrogate consults health care providers and makes only decisions the surrogate believes the principal would have made in the circumstances.
If there is no indication of what the principal would have chosen, the surrogate may consider the patient’s best interest when deciding whether proposed treatment should be withheld or treatment already in effect should be withdrawn. The surrogate is also entitled to appropriate health information and may provide written consent when consent is required.
Amendment and revocation do not require one exclusive method
Section 765.104 allows a competent principal to amend or revoke an advance directive through a signed and dated writing, directed physical cancellation or destruction, an oral expression of intent, or a later directive that is materially different. The change becomes effective when communicated to the surrogate, health care provider, or health care facility.
Unless the directive or an order of dissolution or annulment provides otherwise, dissolution or annulment of the principal’s marriage revokes the designation of the former spouse as surrogate.
Without an available surrogate, Florida uses a proxy hierarchy
When an incapacitated or developmentally disabled patient has no advance directive, no designated surrogate, or no available designated or alternate surrogate, section 765.401 provides a priority order for a proxy. The order starts with an authorized court-appointed guardian, followed by the patient’s spouse, adult child or majority of reasonably available adult children, parent, adult sibling or majority of reasonably available adult siblings, a qualifying adult relative, and a close friend. A qualifying clinical social worker may serve in the circumstances stated by the statute.
A statutory proxy is not the same as a person expressly selected in a valid surrogate designation. The hierarchy determines who may decide only when its statutory conditions are met.
Health care facilities have separate duties
Section 765.110 requires covered facilities to provide written information about advance-directive rights and the facility’s implementation policies. The facility must document in the medical record whether the patient has executed an advance directive.
A provider or facility may not require a patient to execute or waive an advance directive as a condition of treatment or admission. The statute also provides that the patient’s advance directives travel with the patient as part of the medical record.
Sources
- Florida Statutes chapter 765 definitions and advance-directive framework
- Florida Statutes section 765.202: Designation of a health care surrogate
- Florida Statutes section 765.203: Suggested form of designation
- Florida Statutes section 765.204: Capacity of principal
- Florida Statutes section 765.205: Responsibility of the surrogate
- Florida Statutes section 765.104: Amendment or revocation
- Florida Statutes section 765.401: The proxy
- Florida Statutes section 765.110: Health care facilities and providers
