Update in Law Alert: Changes to Florida’s Healthcare Designation Law

By: Jacqueline R. Bowden, Miramar Estate Planning Attorney

As of October 1, 2015, Florida’s Healthcare Designation laws, provided under Chapter 765 of Florida Statutes, have changed providing more flexibility for the person appointing the surrogate, formerly known as the “principal.”

Three Options. Currently, for a healthcare surrogate to make medical decisions, the attending physician must evaluate the principal’s capacity. If the physician finds the principal lacks capacity to make medical decisions, then the surrogate is permitted to review medical records and make medical decisions. Under new legislation the principal now has three options to choose from:

1. The principal may designate the surrogate to act under the traditional law, allowing decisions and medical information only upon an evaluation of the principal’s capacity;
2. The principal may designate the surrogate to receive medical information regardless of the principal’s capacity, but only make medical decisions after the principal has been determined to lack capacity; or
3. The principal may designate the surrogate to “step in their shoes” allowing the surrogate to receive medical information AND make medical decisions immediately upon signing the designation form, without the need for an evaluation of the principals capacity.

Now Available For Children Under 18. Another great advantage under the recent changes are allowing the appointment of a healthcare surrogate for a minor. A minor is any person under age 18. Prior to October 1^st, the law was silent on a parent’s ability to appoint a healthcare surrogate for their minor child. However, the amendments provide a parent, legal guardian or legal custodian (the “minor’s principal”) the authority to appoint a surrogate for a minor. The minor’s surrogate will be allowed to act in the absence of the minor’s principal and may continue to act until terminated by the minor’s principal. If you travel frequently, or plan to take a trip and leave the kids at home with a family member or friend, we strongly advise having a healthcare surrogate appointed for all your minor children.

Take Away Points

1. In our experience, most persons want their Health Care Surrogate to have maximum flexibility and power to avoid unnecessary meddling by the hospital bureaucracy. Therefore, most persons will want Option #3, the “step in their shoes” option.

2. If you have minor children under age 18 and travel out of the country on occasion, we recommend you appoint a health care surrogate for all minor children.

3. If you have not reviewed your healthcare designation form in the past two years, now may be a good time to do so. The older a health care surrogate is the more likely it is to be challenged. If you would like to update your designation form and take advantage of the options under the recent changes contact Jacqueline R. Bowden, Miramar Estate Planning attorney, at (305) 556-5209 or JBowden@Raricklaw.com.

Special Note

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Miramar Estate Planning attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.