A person is presumed to be capable of making health care decisions unless determined to be incapacitated. A patient is considered incapable of making health care decisions only after the attending physician notes in the patient’s chart that the patient lacks the mental ability to make health care decisions or give informed consent.
Before becoming incapacitated, a person can sign a written document that names another person as a surrogate to make health care decisions. This document must be signed by the person making the designation in the presence of two adult witnesses. A person physically unable to sign this document may, in the presence of two witnesses, direct that another person sign the document for him or her. The person who is to serve as the surrogate cannot witness the signing of the document. At least one of the witnesses must be someone other than the patient’s spouse or blood relative. A document designating a health care surrogate may also designate an alternate surrogate. The alternate surrogate may assume his or her duties as surrogate if the person originally named as surrogate is unwilling or unable to perform his or her duties.
A health care surrogate has the authority to make all health care decisions for the person during a time of mental incapacity. A person may designate a separate surrogate to consent to mental health treatment in the event he or she is determined by a court to be incompetent to consent to mental health treatment and a guardian advocate is appointed.
The surrogate must make all decisions in accordance with the previous instructions of the person for whom he or she is serving. Health care decisions include consenting, refusing to consent, or withdrawing consent to any and all health care, including life prolonging procedures. Health care decisions also include applying for private, public, government, or veterans’ benefits to defray the cost of health care. A health care surrogate also has the right to access all medical records of the person who designated him or her that are necessary for the health surrogate to make decisions involving health care and to apply for benefits.
A surrogate’s authority to make health care decisions remains in effect until there is a determination that the person who signed the health care designation has regained the capacity to make medical decisions. Upon the commencement of the surrogate’s authority, the patient’s spouse and adult children must be notified that such an appointment has been made and that the surrogate has the authority to make decisions for the patient.
If the surrogate is not able or not willing to make health care decisions according to the patient’s wishes and no alternate health care surrogate is named, the health care facility may seek the appointment of a health care proxy.
This page is excerpted from the Florida Senior Legal Guide.