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March 19, 2024

A health care surrogate and living will are important pieces of a robust estate planning portfolio.  This article will dive into what these documents are and why they should be a part of your estate planning portfolio. 

Florida Statutes Chapter 765, entitled “Health Care Advance Directives” covers the law regarding health care surrogates and living wills.  A health care surrogate is a document in which a principal (the person creating the health care surrogate) designates a surrogate (also referred to as an “agent”) to make health care decisions for the principal and/or to receive heath care information on behalf of the principal.  Like most estate planning instruments, the heath care surrogate will need to be signed by the principal in the presence of two subscribing adult witnesses.   

It is wise for the principal to designate an alternate surrogate, in case the initial surrogate declines to serve as surrogate or is unable to do so.  However, we do not recommend for a principal to designate co-surrogates, as this could lead to problems if the co-surrogates do not agree on decisions regarding the principal’s health care. 

It is important to keep in mind that while the principal still has the capacity to make their own health care decisions, the principal’s decision making will take priority over the surrogate’s.  A principal can revoke the health care surrogate at any time, but it shall remain in effect indefinitely until the principal revokes the health care surrogate. 

The responsibilities and powers of the surrogate are listing in Florida Statute 765.202.  The responsibilities are: 

(1) The surrogate, in accordance with the principal’s instructions, unless such authority has been expressly limited by the principal, shall: 

(a) Have authority to act for the principal and to make all health care decisions for the principal during the principal’s incapacity. 

(b) Consult expeditiously with appropriate health care providers to provide informed consent, and make only health care decisions for the principal which he or she believes the principal would have made under the circumstances if the principal were capable of making such decisions. If there is no indication of what the principal would have chosen, the surrogate may consider the patient’s best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn. 

(c) Provide written consent using an appropriate form whenever consent is required, including a physician’s order not to resuscitate. 

(d) Be provided access to the appropriate health information of the principal. 

(e) Apply for public benefits, such as Medicare and Medicaid, for the principal and have access to information regarding the principal’s income and assets and banking and financial records to the extent required to make application. A health care provider or facility may not, however, make such application a condition of continued care if the principal, if capable, would have refused to apply. 

(2) The surrogate may authorize the release of health information to appropriate persons to ensure the continuity of the principal’s health care and may authorize the admission, discharge, or transfer of the principal to or from a health care facility or other facility or program licensed under chapter 400 or chapter 429. 

(3) If, after the appointment of a surrogate, a court appoints a guardian, the surrogate shall continue to make health care decisions for the principal, unless the court has modified or revoked the authority of the surrogate pursuant to s. 744.3115. The surrogate may be directed by the court to report the principal’s health care status to the guardian. 

The law regarding living wills in Florida is found in Florida Statute 765 Part III “Life-Prolonging Procedures”.  The living will states whether the principal (the person creating the living will) will like to have life-prolonging procedures provided to them or to be withdrawn if the principal were to have a “terminal condition”, an “end-state condition”, or if they were in a “persistent vegetative state”.  The living will must be signed the principal in the presence of two adult subscribing witnesses.  However, for a living will, one of the witnesses must NOT be a spouse of the principal or a blood relative of the principal. 

Under Florida Statute 763.305, if someone does not have a living will, but has a health care surrogate, that surrogate will be able to make decisions as to whether the principal should be provided with life-prolonging procedures or to have those procedures withdrawn. 

Creating a health care surrogate and living will is crucial to ensure that your health care needs will be respected and fulfilled by someone you trust in the event that you are unable to make those decisions yourself.  By consulting with a qualified Florida estate planning attorney, understanding the options available, and adhering to the legal requirements outlined in Florida Statutes, you can ensure that your health care surrogate and living will accurately reflect your wishes and provide peace of mind for yourself and your loved ones.  If you have any questions regarding the topics covered in this article or simply would like to discuss your Estate plan, give us a call for a free, no obligation consultation at 813-501-5071.

-Jacob Rubin, Esq.

Zoecklein Law PA

Disclaimer:   The information contained in this blog/website is for informational purposes only and provides general information about the law but not specific advice.  This information should not be used as a substitute for advice from competent legal counsel as laws change and the facts in your specific case need to be analyzed.