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Florida Healthcare Power of Attorney Requirements

Florida's Designation of Health Care Surrogate gives you a choice most states do not: you can initial a box on the statutory form to make your surrogate's authority to receive your health information, or to make health care decisions for you, effective the moment you sign, instead of waiting for a physician to determine you can no longer decide for yourself.

Introduction

Florida's Designation of Health Care Surrogate gives you a choice most states do not: you can initial a box on the statutory form to make your surrogate's authority to receive your health information, or to make health care decisions for you, effective the moment you sign, instead of waiting for a physician to determine you can no longer decide for yourself. Florida created this document under the Health Care Surrogate Act, Part II of Florida Statutes Chapter 765 (Sections 765.201 through 765.205); Florida's own instrument name for what many other states call a medical power of attorney is a health care surrogate designation, and Florida's statute never uses the phrase power of attorney for this document. Rather than a general or financial power of attorney, this is a document limited to health care decisions and health information access; it says nothing about your money, property, or bills. It also gives you a choice most other states do not offer: your surrogate's authority can spring into effect only once your physician determines you cannot make your own decisions, or, if you initial the option on the statutory form, your surrogate can start receiving your health information or making decisions for you immediately, without waiting for any determination of incapacity. Florida requires the document to be signed in front of two adult witnesses, with at least one who is neither your spouse nor a blood relative; notarization is not required. Florida law itself provides a suggested statutory form, and there is no state registry to file it with, so you keep the signed original and give copies to your physician, your surrogate, and any alternate surrogate.

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Key Things to Know

  1. 1

    Florida's own name for this document is a Designation of Health Care Surrogate, and the person you name is called a surrogate, not an agent; whatever it's called, it lets you (the principal) choose that trusted adult to make health care decisions for you, or receive your health information, if you become unable to make those decisions yourself.

  2. 2

    By default, your surrogate's authority begins only once your primary or attending physician determines, in writing in your medical record, that you lack the capacity to make your own decisions (Fla. Stat. Section 765.204(2)).

  3. 3

    Florida lets you choose otherwise: you can initial a box on the statutory form to make your surrogate's authority to receive health information, or to make health care decisions, effective immediately, without waiting for any incapacity determination (Fla. Stat. Section 765.202(6)).

  4. 4

    Florida does not always require two physicians to confirm incapacity. Only one physician's evaluation is required unless that physician has a question about the conclusion, in which case a second physician must also evaluate you (Section 765.204(2)).

  5. 5

    Unless you expressly authorize it in the document, your surrogate cannot consent to abortion, sterilization, electroshock therapy, psychosurgery, experimental treatment, or your voluntary admission to a mental health facility (Section 765.113).

  6. 6

    You sign the document in front of two adult witnesses. Your surrogate cannot be one of the witnesses, and at least one witness must be neither your spouse nor a blood relative (Section 765.202). Florida does not require notarization.

  7. 7

    You can amend or revoke the designation at any time while you are competent, by a signed writing, physically destroying the document, an oral statement, or a new, materially different designation (Section 765.104).

  8. 8

    If your surrogate is your spouse and you later divorce, their authority ends automatically unless your document states otherwise (Section 765.104(2)).

  9. 9

    Florida has no central state registry for health care surrogate designations. Keep the signed original and give copies to your physician, your surrogate, and any alternate surrogate.

  10. 10

    This is a different document from Florida's Power of Attorney (Florida Statutes Chapter 709), which covers property and financial decisions, not health care.

Key decisions before you file

Before you file a Healthcare Power of Attorney in Florida, a few decisions shape the document: which option to choose and what each one means. The Healthcare Power of Attorney guide walks through them.

Open the Healthcare Power of Attorney guide

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FLORIDA DESIGNATION OF HEALTH CARE SURROGATE - STATE EXECUTION TEMPLATE

NOTICE: Under Part II of Florida Statutes Chapter 765, this document creates a health care surrogate designation, not a power of attorney. Signing it lets you (the "principal") choose a trusted adult (the "surrogate") who can make health care decisions on your behalf, receive your health information, or do both. Money, property, and other financial matters are outside its scope entirely.

  1. Designation of Surrogate I, [Principal Name], of [County], Florida, designate [Surrogate Name], of [Surrogate Address and Phone], as my health care surrogate under Section 765.202, Florida Statutes. If my surrogate is not willing, able, or reasonably available to serve, I designate the following alternate surrogate: [Alternate Surrogate Name and Contact].

  2. Grant of Authority I authorize my surrogate to receive my health information and to make all health care decisions for me, including consenting to, refusing, or withdrawing treatment; accessing my medical records; deciding about life prolonging procedures; and applying for public benefits on my behalf. My surrogate must make only the decisions I would have made or, if my wishes are unknown, decide in my best interest.

  3. When My Surrogate's Authority Begins My surrogate's authority becomes effective once my primary or attending physician determines, in writing in my medical record, that I am unable to make my own health care decisions. Florida law also lets me choose otherwise: (Initial here) [ ] to make my surrogate's authority to receive my health information effective immediately. (Initial here) [ ] to make my surrogate's authority to make health care decisions effective immediately, without waiting for a determination of incapacity.

  4. Limits on My Surrogate's Authority Unless I expressly authorize it above, my surrogate may not consent to abortion, sterilization, electroshock therapy, psychosurgery, experimental treatment, or my voluntary admission to a mental health facility. If I am pregnant, Florida law may further restrict my surrogate's authority to withhold or withdraw life prolonging procedures before viability.

  5. Revocation I may amend or revoke this designation at any time while competent, by a signed writing, by destroying this document, by an oral statement of my intent, or by signing a later, materially different designation. My revocation takes effect once I communicate it to my surrogate or a health care provider. If I later divorce a spouse named as my surrogate, that person's authority ends automatically unless I state otherwise.

EXECUTION (Florida Statutes Section 765.202): I sign this document in the presence of two adult witnesses. My surrogate may not serve as a witness, and at least one of my two witnesses must be neither my spouse nor a blood relative. Florida law does not require notarization.

If I am physically unable to sign, another adult may sign my name in my presence and at my direction, before my witnesses.

Note: This page provides Florida's specific execution requirements. For a complete fillable document, see our Florida Designation of Health Care Surrogate form. For decisions about money and property, see Florida's separate Power of Attorney under Florida Statutes Chapter 709.

Florida Requirements for Healthcare Power of Attorney

Designation of Health Care Surrogate (Florida Statutes § 765.202)

The principal designates a primary health care surrogate, not an agent (Florida's own statute uses the term surrogate), with full name and contact information, using the suggested statutory form (Fla. Stat. § 765.203), authorized to make health care decisions for the principal, receive the principal's health information, or both. By default this authority begins only once the principal's incapacity is determined (§ 765.204), but Florida also lets the principal elect on the form to make the surrogate's authority effective immediately instead (§ 765.202(6)).

Alternate Surrogate Designation (Florida Statutes § 765.202(3))

Designation of at least one alternate surrogate who can act if the primary surrogate is unwilling, unable, or reasonably unavailable to perform their duties.

Effective Date and Election (Florida Statutes § 765.204, § 765.202(6))

By default, this document becomes effective for decision-making purposes when the principal's incapacity is determined by a physician under § 765.204, and remains in effect during incapacity. Florida law never calls this document or this feature durable; that term applies only to Florida's separate financial Power of Attorney (Fla. Stat. Chapter 709), which works oppositely, since it must take effect immediately and, with narrow exceptions, cannot spring into effect later. Florida additionally lets the principal initial a box on the statutory form to make the surrogate's authority to receive health information, or to make health care decisions, effective immediately instead of waiting for an incapacity determination (§ 765.202(6)).

Determination of Incapacity (Florida Statutes § 765.204(2))

Incapacity is determined by the principal's primary or attending physician, who evaluates capacity and enters the finding in the principal's medical record. Only one physician's evaluation is required in the ordinary case; a second physician must also evaluate the principal only if the first physician has a question about that physician's own conclusion, in which case both physicians' evaluations must be documented (§ 765.204(2)).

Surrogate Authority Scope (Florida Statutes § 765.205)

Detailed outline of the surrogate's authority to make all healthcare decisions for the principal during incapacity, including consent to medical procedures, access to medical records, and authority to apply for public benefits.

Life-Prolonging Procedures (Florida Statutes § 765.305)

Explicit instructions regarding the surrogate's authority to withhold or withdraw life-prolonging procedures in accordance with the principal's wishes or best interests. In the absence of a living will, this decision may be made by a health care surrogate designated under Part II unless the designation limits that authority.

HIPAA Authorization (45 CFR § 164.508)

Authorization for the release of protected health information to the surrogate under the Health Insurance Portability and Accountability Act of 1996.

Anatomical Gift Authorization (Florida Statutes § 765.512(2))

Under Florida's anatomical gift law, a health care surrogate designated under Part II may give all or part of the decedent's body for the purposes specified in § 765.513, absent actual notice of the decedent's contrary wishes (§ 765.512(2)).

Mental Health Treatment Surrogate (Florida Statutes § 765.202(5))

A principal may designate a separate surrogate to consent to mental health treatment if a court later finds the principal incompetent to consent and appoints a guardian advocate under § 394.4598; absent a separate designation, the court assumes the principal's general health care surrogate is also meant to handle mental health treatment decisions.

Nursing Home and Assisted Living Placement (Florida Statutes § 765.205(2))

The surrogate may authorize the principal's admission, discharge, or transfer to or from a health care facility, nursing home under chapter 400, or assisted living facility under chapter 429 (§ 765.205(2)).

Surrogate Standards for Decision-Making (Florida Statutes § 765.205(1)(b))

The surrogate must make decisions based on the principal's known desires or, if unknown, best interests, considering the principal's values and preferences.

Excluded Powers (Florida Statutes § 765.113(1))

Unless the principal expressly delegates the authority in writing, or a surrogate obtains court approval under Florida Probate Rule 5.900, the surrogate may not consent to abortion, sterilization, electroshock therapy, psychosurgery, experimental treatment not approved by a federally recognized institutional review board, or the principal's voluntary admission to a mental health facility (§ 765.113(1)).

Revocation Procedures (Florida Statutes § 765.104)

The principal may amend or revoke the designation at any time while competent, by a signed dated writing, physical cancellation or destruction of the document, an oral expression of intent to revoke, or execution of a materially different subsequent designation (§ 765.104(1)). The amendment or revocation takes effect once communicated to the surrogate or a health care provider; no one is liable for failing to honor a revocation without actual knowledge of it (§ 765.104(3)). If the surrogate is the principal's spouse, that person's authority ends automatically upon dissolution or annulment of the marriage unless the document or the court order states otherwise (§ 765.104(2)).

Witness Requirements (Florida Statutes § 765.202(1) and (2))

The principal signs in the presence of two subscribing adult witnesses (§ 765.202(1)). The surrogate may not act as one of the two witnesses, and at least one of the two witnesses must be neither the principal's spouse nor a blood relative (§ 765.202(2)).

Notarization Provision (Florida Statutes § 765.202)

Notarization is not required by Florida law for a Designation of Health Care Surrogate.

Out-of-State Recognition (Florida Statutes § 765.112)

An advance directive, including a Designation of Health Care Surrogate, executed in another state in compliance with that state's law or Florida's law is validly executed for purposes of Chapter 765 (§ 765.112).

Patient Self-Determination Act Compliance (42 U.S.C. § 1395cc(f))

Facilities that participate in Medicare and Medicaid must inform patients of their rights under state law to make advance directives, including a Designation of Health Care Surrogate.

Pregnancy Provisions (Florida Statutes § 765.113(2))

A surrogate may not withhold or withdraw life-prolonging procedures from a pregnant principal prior to viability, as defined in § 390.0111(4), unless the principal expressly authorized it in writing or a court approves under Probate Rule 5.900 (§ 765.113(2)).

Frequently Asked Questions

A Health Care Surrogate Designation in Florida is a legal document, created under Florida Statutes Chapter 765, Part II, that lets you name a trusted adult, your surrogate, to make health care decisions for you, or receive your health information, if you are ever unable to make those decisions yourself. Florida's own statute calls this a health care surrogate designation, not a power of attorney, and it covers only health care decisions.

A Health Care Surrogate Designation covers only health care decisions and health information access. Florida's separate Power of Attorney (Florida Statutes Chapter 709) covers property and financial matters instead, such as banking or real estate, and cannot authorize health care decisions. The two documents also differ in how they take effect: Florida's financial Power of Attorney must be effective immediately when signed and, with narrow exceptions, cannot be written to spring into effect later. The Health Care Surrogate Designation is the opposite by default, since your surrogate's authority normally springs into effect only once your physician determines you lack capacity, though you may instead choose to make it effective immediately. Execution differs too: the financial Power of Attorney requires two witnesses and a notary, while the health care surrogate designation requires only two witnesses and no notary.

No. Florida law requires two adult witnesses, but only at least one of them must be neither your spouse nor a blood relative; the other witness only needs to be an adult. Your surrogate cannot serve as either witness (Fla. Stat. Section 765.202).

Yes, Florida law does not bar your treating physician, a facility employee, or your health care provider from serving as your health care surrogate. Unlike some other states, Chapter 765 places no restriction on who may be named as your surrogate based on a professional or facility relationship to you; the only restriction is that your surrogate cannot also act as one of your two witnesses.

No. Florida does not operate a central registry for health care surrogate designations or other advance directives. Keep the signed original yourself and give copies to your physician, your surrogate, and any alternate surrogate so they have it when needed.

You can amend or revoke it at any time while you are competent, by signing a dated writing, physically destroying the document, orally stating your intent to revoke, or signing a later designation that is materially different, under Florida Statutes Section 765.104. Your revocation takes effect once you communicate it to your surrogate or a health care provider.

Yes. Florida is one of the few states that lets you choose. On the statutory form you may initial a box to make your surrogate's authority to receive your health information, or to make health care decisions, effective immediately upon signing, rather than waiting for your physician to determine you lack capacity (Fla. Stat. Section 765.202(6)).

Unless you expressly authorize it in the document, or a court approves it, your surrogate cannot consent to abortion, sterilization, electroshock therapy, psychosurgery, experimental treatment not approved by a federal review board, or your voluntary admission to a mental health facility (Fla. Stat. Section 765.113).

If you had named your spouse as your surrogate, that person's authority ends automatically when your marriage is dissolved or annulled, unless your document or the divorce order states otherwise (Fla. Stat. Section 765.104(2)).