Written by Nataline Garcia, Esq.
A health care surrogate is a person who is appointed by you, to make health care
decisions, in the event you become mentally or physically unable to make the decision yourself.
Florida Statute §765.202 outlines the proper method of drafting and executing a designation of
health care surrogate to establish a rebuttable presumption of clear and convincing evidence of
your designation of the surrogate. It is essential you ensure your designation of health care
surrogate complies with Florida Statute to ensure it is valid and enforceable.
For starters, the designation of a health care surrogate must be in writing. The written
document must expressly state that the principal (you), designate a surrogate to make or receive
medical decisions/information in the event the principal is unable to do so. Florida Statute also
permits the appointment of an alternate health care surrogate, in the event the initial health care
surrogate is unwilling, unable or unavailable to carry out their role. The principal may also
designate a separate surrogate to consent to mental health treatment, however, unless the
designation of health care surrogate expressly states there is a separate designation for purposes
of mental health treatment, it will likely be assumed that the health care surrogate authorized to
make health care decisions is also authorized to make mental health treatment decisions. Make
sure your wishes are expressed in a clear fashion to avoid any possibility of confusion or
inaccuracy.
Next, the written document must be witnessed by two adults. There are certain rules as to
who may or may not serve as a witness to this document. For example, the person designated as
the health care surrogate may not serve as a witness to the execution of this document.
Additionally, one of the two witnesses may not be a spouse of the principal nor a blood relative
of the principal. Failure to execute the designation of health care surrogate may cause it to be
invalid or even unenforceable.
Lastly, unless the document states a time of termination, the designation shall remain in
effect until revoked by the principal. It is good practice to provide the appointed health care
surrogate(s) with a copy of the designation and make them aware of their appointment. Always
keep an original designation of health care surrogate in your possession.
If you are interested in learning more about appointing a health care surrogate or are
ready to prepare your designation of a health care surrogate please contact the Law Office of Ray Garcia, P.A., at 305-227-4030 or via email at legal@raygarcialaw.com.
Law Office of Ray Garcia, P.A.
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