Florida Law’s Revisions Concerning your Designation of Health Care Surrogate.

Written by Nataline Garcia, Esq.

As of 2015, Florida made substantial changes to Chapter 765 which governs the rules on designations of healthcare surrogates. In our previous blog titled, “What is a Designation of a Health Care Surrogate” we discussed the purpose of a designation of health care surrogate and the steps taken to ensure proper drafting and execution. Today, we will discuss the modifications made to Florida law in 2015, which may require you to update your Designation of Health Care Surrogate, if you haven’t already done so.

The changes to the law were made to allow competent individuals to receive immediate assistance in making health care decisions or accessing health information, or both, without the strict determination of incapacity, which was not previously allowed. Previously, Florida law required a physician or physicians to have made a formal finding of the patient’s incapacity in order to activate the healthcare surrogate. This requirement led to delays and other foreseeable problems. With the problems of waiting for the formal declaration of incapacity needed in order to activate the healthcare surrogate, the legislature made some significant changes that your estate planning documents should reflect.

One of the changes in law now allows for health care decisions to be made by a surrogate, without having to wait until the patient is deemed incapacitated. Instead, so long as the designation of health care surrogate expressly allows that the designated health care surrogate’s authority to commence sooner, the surrogate is now legally authorized to: 1) provide informed consent, refuse treatment, or withdraw consent for treatment; 2) apply for public benefits; and 3) access the patient’s private healthcare information. This change is extremely helpful and beneficial in a situation when a person may be going in and out of competency, the health care surrogate can act on the principal’s behalf, even when the patient is lucid at the time. 

Secondly, Florida law now allows the patient’s private health care information to be accessed by the surrogate before the patient is declared incapacitated, which is very helpful for families in emergency situations.

If you have any questions concerning your Designation of Health Care Surrogate or believe your Designation needs an update, please feel free to contact the Law Office of Ray Garcia, P.A., at 305-227-4030 or at legal@raygarcialaw.com