Florida Healthcare Power of Attorney Requirements

Introduction

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.

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)).