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HEALTH CARE SURROGATE

You or someone you know will ultimately need a 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.  

WHAT IS A HEALTH CARE SURROGATE?

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 the principal’s behalf in the event the principal becomes incapacitated or is not able to make his or her own health care decisions.

Florida Statute Section 765.202(6) allows you to stipulate in the designation of health care surrogate that the power to make health care decisions on your behalf and/or receive health care information could be made effective immediately without a determination of incapacity. This is particularly useful when you are dealing with an elder parent or individual that may need assistance with doctors and other medical treatment.

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.

Health Care Surrogate Florida Requirements

For the designation of Florida health care surrogate to be valid a few requirements must be met according to Florida Statute Section 765.202:

  1. The principle and the surrogate must be identified in the designation;
  2. The time of commencement for the designation to take effect (immediately or upon incapacity);
  3. The designation must be signed by the principal in the presence of two witness who must also sign the document in the presence of the principal;
  4. The witnesses must be at least 18 years old;
  5. The surrogate cannot be a witness; and
  6. At least one of the witness must not be the principal’s spouse or blood relative.

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.

Purpose of health care surrogate

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. 

conclusion

The 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 or send me a message. I will be more than happy to answer any questions you may have regarding health care surrogates.

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