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:
 

WHAT IS A FLORIDA DESIGNATION OF HEALTH CARE SURROGATE?

A Florida Designation of Health Care Surrogate, also known as an advance directive or medical power of attorney, is a legal document that plays a pivotal role in your estate plan. Essentially, it allows you to appoint a trusted individual, known as a health care surrogate, who will step in and make medical decisions on your behalf if you become unable to do so due to incapacitation. This document serves as your voice in situations where you cannot express your preferences regarding medical treatment.

WHY WOULD SOMEONE NEED A HEALTH CARE SURROGATE?

The need for a health care surrogate arises from the unpredictability of life’s twists and turns. Illnesses, accidents, or unforeseen medical conditions can suddenly render a person unable to make informed decisions about their medical care. In such situations, a health care surrogate steps in to ensure that your preferences are respected. Whether it involves choosing treatment options, authorizing medical procedures, or even making end-of-life decisions, a surrogate serves as your advocate, ensuring that your medical wishes are honored when you cannot express them yourself.

WHO CAN BE A FLORIDA HEALTH CARE SURROGATE?

In Florida, any capable adult aged 18 or older can be appointed as a health care surrogate. However, it is recommended to choose a health care surrogate who is familiar with your preferences and in whom you have confidence to act with integrity when dealing with end-of-life matters.

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. 

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.

WHAT HAPPENS IF YOU DON’T HAVE A HEALTH CARE SURROGATE IN FLORIDA?

Failing to designate a healthcare surrogate can lead to a host of challenges for both you and your loved ones. Without a surrogate, decisions about your medical care may fall to legal authorities, potentially causing delays and uncertainties during critical moments. 

In the event that you haven’t formally appointed a health care surrogate and you encounter a situation requiring someone to make vital health care decisions on your behalf, The Florida Health Care Proxy statute provides a default list of individuals who will be designated as your decision-makers, starting with the first on the list and progressing down:

• A court-appointed guardian (if applicable)
• Your spouse
• Your adult child or children
• Your parent or parents
• Your adult sibling or siblings
• A close relative who has shown exceptional care and concern for you, maintaining regular contact
• A close friend
• A clinical social worker

While this list is designed to align with potential preferences and offers a structured method for selecting the right person, it may not be suitable for everyone. For instance, in cases where two parents or two children must reach a consensus, agreement may not come easily, and the chosen decision-maker may not necessarily share your views. 

To prevent these complications and ensure your medical preferences are respected, it’s crucial to proactively designate a health care surrogate through a Florida Designation of Health Care Surrogate. This simple yet powerful document offers you peace of mind, knowing that your medical decisions are in trusted hands, even in the face of unexpected health challenges.

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 772-266-5314 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.