Southwest Florida

A Health Care Surrogate’s Powers

Man in hospital bed needs a health care surrogate
A Health Care Surrogate makes medical decisions for you when you cannot.

Many people don’t really understand how a Florida Designation of Health Care Surrogate document works, so I thought I’d try to explain.

First, what we in Florida call a Designation of Health Care Surrogate, many other states call a Health Care Power of Attorney. It’s a legal document executed by a mentally competent adult (the “Principal”) that names one or more people to make health care decisions for her when she can’t (the “Surrogate” or “Agent”). When would she need her Surrogate to make such decisions for her? When she’s unconscious, heavily medicated, or not mentally competent at the time the decisions are needed.

Florida has a public policy when it comes to Health Care Surrogates – no Surrogate can override a decision made by a Principal who has mental capacity. In other words, a Principal capable of making informed medical decisions can veto her Surrogate. A physical disability, such as a vision or hearing impairment or loss, doesn’t negate that policy; if the Principal is conscious, can understand what’s going on, can make an informed decision, and can communicate that decision in some way (even by blinking her eyes), her decision controls. Always. But, if she chooses not to make the decision and instead defers to her Surrogate’s decision, that’s okay as long as her Health Care Surrogate document says it is.

Without a written Health Care Surrogate document, a Surrogate authorized under the Florida statute would only be consulted after a doctor decided the Principal lacked the capacity to make decisions. With the written document, the Principal has the option to defer to the Surrogate at any time – whether the doctor thinks she’s incapacitated or not.

That’s why the document usually says something along the lines of: “While I have decision-making capacity, my wishes are controlling…” That’s the default under Florida law – a doctor has to put down in writing that the Principal is unable to make informed decisions before the Surrogate has any power at all. But the Principal who is executing a Health Care Surrogate document has the option, by initialing in another area on the document, to allow her Surrogate to act immediately – without the need for a doctor to say the Principal can’t make decisions.

Every state has different policies and documents regarding health care decisions and Living Wills. In Florida, autonomy and independence take priority when it’s at all possible. So Health Care Surrogates serve in addition to the person who named them – they don’t replace them. Therefore, these documents work well only when everyone is playing nicely. In Florida, the only way for a Surrogate to completely control all medical decisions for a Principal is by petitioning a court for guardianship (voluntary or involuntary), which completely removes the legal right of the Principal to make her own medical decisions.

Other articles you may find interesting:

Why Unmarried Couples Need Estate Planning

Should I Use a Bank as My Executor Instead of a Family Member?

Ready to make sure everything’s in order for your loved ones in the event you become incapacitated or die? Give Manasota Elder Law a call at 941-444-5958. We’ll help you determine whether you’re all set, or whether there are still some things that need to be done to protect what’s most important to you … your family.

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