Estate Planning Law

What Is a Health Care Surrogate?

A health care surrogate is someone who is appointed to make health care decisions for you in certain circumstances. Traditionally, you would designate in writing a competent adult who would receive medical information on your behalf and who would make medical decisions for you when you might become unable to make them for yourself.

But what if you never designated anyone as your health care surrogate and you became ill and unable to advocate for yourself?  In that tragic situation, if you have also not executed a living will, then health care decisions will be made on your behalf by any number of individuals who would be selected in order of priority as set out under Florida law, which could include a court-appointed guardian, your parent, your spouse, a close friend, or even a clinical social worker selected by a committee. 

So, the best way to avoid that messy and painful situation is to go through the thoughtful exercise of formally designating a health care surrogate. Certainly, this is a lot of responsibility to grant to another person. That is why you must ensure that your health care surrogate is a trusted person who has a full understanding of your healthcare wishes and values, and the seasoned attorneys at Doane & Doane can take you through all of the advance directive requirements and ensure that your wishes will be properly carried out.

Below, we will answer, in some detail, the question: What is a health care surrogate? We will also discuss the important updates that were made to Florida’s laws in 2015 that significantly changed how these surrogates could be used.  They are important to keep in mind even if you have already designated a health care surrogate.

What Authority Does a Health Surrogate Have?

The Florida designation of health care surrogate can vary wildly in what authority it grants the health care surrogate. In most circumstances, a health care surrogate is granted authority to make decisions on behalf of the grantor concerning:

1. Providing consent to treatment, making decisions about what course of medical treatment should be undertaken;
2. Providing consent to organ and tissue donation;
3. Applying for public benefits to defray the cost of health care; and
Admission to or transfer from a health care facility.
5. This document can convey limited powers as well. For example, a person could prohibit the health care surrogate form authorizing a blood transfusion if, for example, transfusions are against the person’s religious beliefs. As the grantor, it is up to you to give the health care surrogate as much or as little power as you deem necessary or appropriate for your situation. 

The Recent Changes in Florida Law Related to Health Care Surrogates?

Although health care surrogates conventionally had been used only when someone became incapacitated, the Florida laws were changed in 2015 to significantly broaden their use. 

Effective October 1, 2015, a Florida resident may execute the designation (now sometimes referred to as a “durable” health care surrogate form) and allow the surrogate to exercise those powers even if the resident grantor still has the capacity to make his or her own decisions. The reason for this change was to allow any competent adults who may want to receive immediate assistance in these situations to be able to do so. The change also eliminates any delay that might have existed in activating a health care surrogate who no longer needs to wait for the patient to be formally declared incapacitated by a physician before being able to perform the duties provided in the designation.

Under the new laws, health care surrogate may also access the patient’s private health care information even though the patient still has the capacity, which will be very helpful for families in emergency situations. Importantly, however, when the patient is still lucid and has the capacity, the health care surrogate cannot override the patient’s wishes. Therefore, an individual with capacity may remove a surrogate who is not acting in line with his or her interests or expressed wishes.

The changes to Florida’s laws made two more significant improvements. 

First, they made clear that a resident can in the same health care surrogate designation nominate an alternate health care surrogate. The advantage of having an alternate already named is time: if your primary surrogate is unwilling, unable, or is not reasonably available to perform the duties of that role when the surrogate becomes needed, then the alternate is already named and designated to take the primary’s place. 

Second, the new law outlines the ability of parents to name health care surrogates for their minor children, which can be extremely useful in situations where the parents or legal guardians could not be timely reached by a medical provider. Imagine, for example, a situation where parents are traveling without their children or where minor children are traveling with other adults. This law gives parents a way to empower whoever is watching the minors with written authority to make health care decisions in case a minor child gets injured or falls ill while in their care.

Is There a Difference Between a Health Care Surrogate and Living Will?

Yes, there is a difference. Where the health care surrogate designation names the person to make health care decisions on your behalf, the living will thoroughly outline all of your wishes that the medical staff should follow while you are incapacitated. What extraordinary medical treatments and life-saving care should and should not be administered? For example, should doctors use intravenous feeding tubes to provide nutrients and fluids to you in the event that you are close to death or are comatose? What are your preferences regarding palliative care? These details and more are properly set forth in a living will to help medical staff understand your wishes should you become unable to communicate them at some point.

Taken together, a designation of health care surrogate and a living will make up advance directives in Florida.

Considering all the pitfalls and unknowns that come from not having an advance directive, we encourage you to come in and meet with the estate planning attorneys of Doane & Doane. We will walk you through all the considerations and intricacies of designating a health care surrogate. Should you already have a designation of health care surrogate, we will gladly review your existing document based on the revised legislation and discuss with you any changes you might want to consider making to the designation.

Let Doane & Doane, P.A., help you understand the question: What is a health care surrogate? You can reach us at 561-656-0200. Call us today.