The changes amend the law to allow the appointment of a health care surrogate that may act at any time, including when an adult is still competent and able to make his or her own decisions. The bill also creates a way to appoint a health care surrogate for the benefit of a minor when the parents, legal custodian, or legal guardian of the minor cannot be timely contacted.

Changes to Health Care Surrogate Law Concerning Adults

A health care surrogate is a competent adult designated by another person (the principal) to make health care decisions in place of the principal. Generally, a determination of incapacity of the principal is required before the health care surrogate may act. Since a principal may regain capacity and, in some instances, may vacillate in and out of capacity, a redetermination of incapacity may be necessary in order to allow the health care surrogate to continue to act. This process can hinder timely assistance.

Under the amended version of Chapter 765, F.S., a principal can choose to select a health care surrogate to act at any time, including a health care surrogate who may act while the principal is still competent. The bill creates section 765.202(6), F.S., and recognizes that some adults want a health care surrogate to assist them with making medical decisions. The bill amends section 765.205, F.S., to state that when a surrogate’s authority exists while the patient is still competent, the patient’s wishes are controlling.

Changes to Health Care Surrogate Law Concerning Minors

Generally, a minor does not have the legal right to consent to medical care or treatment. Rather, for non-emergency treatment, a parent or legal guardian must give consent. As to emergency treatment, if the parents, legal custodian or legal guardian of a minor cannot be timely contacted, section 743.0645(2), F.S., lists people who have the power to consent on behalf of the minor.

Prior to the instant amendment, if a parent or legal guardian went on vacation and left their children with a caregiver, there was no general statutory authority for non-emergency medical treatment of those children without the consent of the parent or legal guardian. Even though lawyers routinely draft powers of attorney purporting to authorize such medical decisions, such documents are subject to challenges.

Now, section 765.2035, F.S., creates statutory authority for a parent or legal guardian to designate a health care surrogate who may consent to medical care for a minor. The designation must be in writing and signed by two witnesses; the designated surrogate may not be a witness. The appointment of a health care surrogate for a minor remains in place until the termination date provided in the designation (if any), the minor reaches the age of majority, or the designation is revoked.

Please contact The Elder Law Center of Kirson & Fuller to draft your new Designation of Health Care Surrogate Forms. (407) 422-3017. We are here to help.