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You or someone you know will ultimately need a Florida Designation of Health Care Surrogate. According to the U.S. Census Bureau, there are presently nearly 90 million Americans over the age of 55. That is almost 30 percent of the population and that number continues to grow every year.
As a person grows older, the more likely that an unfortunate event like a major illness or some other unforeseen event causes the person to become incapacitated. An important tool for planning for incapacity is the Designation of Health Care Surrogate in Florida.
A designation of health care surrogate allows you (the principal) to appoint an agent to make health care decisions or receive protected health information, or both, on your behalf in the event that you become incapacitated or you are not able to make your own informed decisions.
The Florida Designation of Health Care Surrogate can apply immediately or upon your incapacity. If you are not incapacitated, your decisions will be final, however, your agent can still obtain medical information on your behalf from hospitals and doctors. This is particularly useful when you are elderly or have an elderly parent that may need supervision and/or help with their daily activities.
The surrogate can be any competent adult appointed by you. This gives you the freedom to select the person most likely to carry out your wishes. The designation of health care surrogate can also be used to provide express directions or restrictions regarding your wishes about medical treatment and the powers that the health care surrogate will have.
The designated surrogate must act according to the instructions of the designation. This allows you to dictate the medical treatments that you want to receive under certain circumstances. To the extent that there are no instructions regarding a particular health care decision, the surrogate must make decisions based on your best interests.
The designation will be effective until revoked or if you stipulate a termination date. This allows you the ability to give the power to someone else to make decisions on your behalf permanently or only when you need it.
One of the most important purposes for designating a health care surrogate is to have someone that cares for you reasonably informed with your well-being. This is specially true with children that take care of elder parents.
Many times doctors and hospitals are constrained by HIPAA Compliance and they cannot divulge privileged medical information. A health care surrogate form properly drafted can avoid this issue.
Another important purpose is to allow someone else to make health care decisions should you not have the capacity to do so. Sadly, many people now-a-days suffer with deteriorating deceases like dementia and Alzheimer’s.
With the designation in place, together with a properly drafter durable power of attorney, it can prevent you or your family from having to open up a Florida Guardianship should you become incapacitated. Florida Guardianship is expensive and many of your rights are removed when you are declared totally incapacitated.
In Florida, any competent adult over the age of 18 can be designated as a health care surrogate. However, it is advised to select an agent that knows your wishes and you trust him or her to act with integrity during the end-of-life process. It is also important to note that an agent is subject to liability if there is evidence that shows that any health care decision did not, in good faith, comply with the provisions of Florida law.
According to Section 765.204, Florida Statutes, you retain control of making health care decisions until a primary or attending physician determines that you lack capacity to make those decisions. Basically, if you can understand and knowingly communicate health care decisions, you are in capacity and the health care surrogate is not in charge. In any case, an attending or primary physician can restore capacity in the principal if decision-making abilities are regained.
You are also incapacitated for purposes of the Florida Designation of Health Care Surrogate if you are declared judicially incapacitated by a Florida court and your rights are removed. However, the Florida Designation of Health Care Surrogate can serve as one of the least alternative options to a Guardianship.
For the Florida Designation of Health Care Surrogate to be valid a few requirements must be met according to Section 765.202, Florida Statutes:
These requirements must be strictly followed or the designation will be invalid. One of the major issues I almost always see is that the person obtains a form online and does not follow strict Florida law as to its execution.
The Florida designation of a health care surrogate cannot perform as a do not resuscitate order (DNR) or as a physical order for life sustaining treatment (POLST); however, an agent, along with the physician, can sign a DNR or POLST on behalf of an incapacitated principal. It also does not contain instructions for the disposition of the principal’s remains, nor does it list who is to make that decision. This type of information is typically listed in the you will.
When dealing with a DNR or a POLST is highly recommended for the agent to seek court approval.
A Florida designation of a health care surrogate can be revoked at any time by you by signing and dating a statement revoking it, physically destroying it, an expression of intent to revoke the designation, or creating an amended version.
While Florida does allow for verbal revocation of a designation of a health care surrogate, it is not recommended because it blurs your intent and can cause discrepancies in the validity of the document. In cases of divorce where the spouse is named as the agent, the designation is revoked, unless specified otherwise by the principal. Subsequent documentation should clarify that the last designation of a health care surrogate is revoked.
If no health care surrogates are appointed, the individual of highest priority under Section 765.401, Florida Statutes, that is willing, available, and competent to act serves, as follows:
The Florida Designation of Health Care Surrogate is an important tool in any estate planning checklist. It allows you to designate an agent to make health care decisions on your behalf and avoid Florida Guardianship court should you become incapacitated.
Consider talking to a Miami estate planning attorney to have one drafted. The benefits are endless and the benefits far outweigh the costs.
Hope you found this information useful. If you still have any questions feel free to give me a call at (305) 489-1415 or send me a message. I will be more than happy to answer any questions you may have regarding health care surrogates.