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Understanding the Florida Health Care Surrogate Act

Health Care Surrogate Florida

Understanding the 2015 revision to the Florida Health Care Surrogate Act (FHCSA) and what a DURABLE health care surrogate is

In late 2015, the Florida legislature got together and made a few helpful modifications to the FHCSA. Does this mean that yours are invalid? No. What it means is that there are now more options available when seeking to get a health care surrogacy drafted, and that your attorney will be spending a bit more time explaining these new options to you at your consultation. Here is the gist of the 2015 revision:

  1. Now, competent adults can appoint a health care surrogate to act IMMEDIATLEY. This is called a “presently exercisable designation of health care surrogate”, aka a Durable Health Care Surrogate. No need to wait for an adjudication of incapacity. The appointed health care surrogate can start helping the principal make health care decisions and receive updates from doctors and pharmacies now.
  2. Do not fear. There are protections in place so that the principal is not robbed of their independence and liberties; whatever the principal says, trumps the surrogate in the instance of conflicting orders/instructions. What the principal says, goes, until a finding of incapacity. The treating physician MUST always clarify and communicate all final health care changes directly with the principal.
  3. Additionally, should there ever be a medical determination of incapacity, the doctor making said determination MUST immediately notify the surrogate as well as any attorney’s-in-fact who may also have the power to make health care decisions for the patient.
  4. Another helpful revision is the power for a parent to appoint an emergency health care surrogate to act when parents travel without their kids, use nannies or have family members looking after their kids for extended periods of time.

How does one go about revoking a Durable Health Care Surrogacy when it isn’t working out the way they hoped? Under the new Act, one can revoke a health care surrogacy anytime they still possess full capacity by simply amending it in writing and appointing another surrogate, revoking it in writing, physically destroying the original or making a verbal assertion of the intent to revoke. FLA. STAT. § 765.104 (2015). The act while broadening the scope of the health care surrogacy, has also made sure that it is easier to revoke as well.

Traditional health care surrogacies that only become triggered upon the determination of incapacity are still prevalent and available options for people to choose from. The 2015 revision just adds one more option for practitioners to go over with their clients.

Example forms can be found at FLA. STAT. § 765.

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