Your Health Care Surrogate: Where Authority Starts and Ends

People tend to like their privacy when it comes to medical care. So, it may be difficult to think of appointing someone to make medical decisions for you, but it’s an essential part of your estate plan. If you are asked to serve as someone’s health care surrogate, though, you need to know where your authority starts and where it ends.

Let’s consider Arthur and his best friend, Sid. Both are widowers and have children, but the children live far away. Arthur’s estate planning attorney advised him to sign a Florida Designation of Health Care Surrogate, also known as an advance directive or a medical power of attorney. Arthur named his best friend as his health care surrogate. However, Sid had questions for Arthur’s attorney:

When does my authority as health care surrogate start?

Typically, a surrogate starts making decisions for the principal (in this case, Arthur) when the principal is determined to be incapacitated. Authority, by the way, also includes the ability to review the principal’s health information.

However, there’s another option. The principal may authorize the surrogate to make decisions and review health information immediately upon signing the Designation of Health Care Surrogate. If Arthur chooses to make his Designation effective immediately, Sid could begin serving as surrogate right away.

There’s an exception though. If Arthur can communicate regarding his health care, his instructions will be honored over Sid’s, even if Arthur made his Designation effective upon signing.

How will we know if someone is incapacitated?

A principal whose ability to make decisions is questionable will be evaluated by at least one physician. If found to lack capacity – the ability to make decisions – the patient’s condition is noted in the official medical record. The medical provider will then notify the health care surrogate that “authority under the instrument has commenced.” The health care surrogate would then start consulting with medical providers and making decisions.

What do I have to do while serving as health care surrogate?

The surrogate communicates with health care providers, conveying the principal’s wishes if known. Other duties may include providing written consent for treatments, staying informed on the patient’s condition, and applying for public benefits if needed. Also, when the surrogate is not the principal’s spouse, the surrogate is required to notify the principal’s spouse or adult children.

In Arthur’s case, he is a widower with several adult children. Once Sid starts acting as health care surrogate, he needs to contact the adult children. By the way, this is another good reason for people to supply up-to-date contact information to their agents and personal representatives.

When does my authority end?

The easiest answer is when the principal regains capacity or passes away.

However, a Designation can be revoked by the principal at any time. Family members and other interested persons also can dispute a surrogate’s actions and move for replacement.

Still worried about serving as a health care surrogate?

As a Florida attorney board certified in Wills, Trusts & Estates, Attorney John Mangan assists clients with estate planning questions. To schedule an appointment, call us at 772-324-9050 or fill out our Contact Form. Our office is conveniently located in Palm City, Florida. We also help clients throughout Florida, including Stuart, Palm City, Hobe Sound, Jupiter, and Port St. Lucie.