As of October 1, 2015, Florida has made positive changes to its health care surrogate laws. Under the revised legislation, clients may designate a health care surrogate who will have immediate access to their medical information, help with or make medical decisions for them, or both, regardless of capacity. In addition, the legislation now allows for the designation of health care surrogates for minors.
The health care surrogate laws were originally intended to protect individuals who had lost the capacity to make medical decisions on their own. An individual may designate a health care surrogate in the event of incapacity to guarantee that medical decisions are made by a person of the individual’s own choice and without the appointment of a guardianship by the court.
If an individual’s capacity to make medical decisions is in question, an attending physician must evaluate the individual’s capacity and record these evaluations in the individual’s medical records. Florida law defines incapacity as when an individual is “physically or mentally unable to communicate a willful and knowing health care decision.”
Under the original legislation, a health care surrogate’s access to an individual’s medical records and medical decision-making authority began only after it was determined that the individual lacked capacity. This begged the question whether an individual could delegate medical decision-making authority even if he or she was not legally incapacitated.
Effective October 1, 2015, an individual who designates a health care surrogate may now authorize his or her surrogate to make medical decisions or receive medical information without a finding of incapacity, and allow his or her medical information to be shared with the surrogate prior to incapacity.
This legislative change creates several choices for clients in designating their health care surrogate.
One, an individual may authorize his or her health care surrogate to make medical decisions or obtain medical information only upon incapacity.
Two, an individual may authorize his or her health care surrogate to obtain medical information regardless of capacity, but only allow the surrogate to make medical decisions upon incapacity.
Three, an individual may authorize his or her health care surrogate to access medical information and make medical decisions immediately and without evaluating the individual’s capacity.
The new legislation is clear that an individual’s decision is controlling and an individual can revise or revoke a health care surrogate designation as long as the individual has capacity. An individual with capacity may review his or her surrogate’s actions and remove a surrogate who is not acting in line with his or her interests or expressed wishes.
Another key change in the legislation is the ability to designate a health care surrogate for a minor. In the past, there was no legal authority to designate a surrogate to make medical decisions for a minor where the parents or legal guardians could not be timely reached by a medical provider. Suppose you are on vacation in a location without cell phone reception, and an emergency arises where your child needs medical treatment. The law now provides parents or legal guardians of a minor the power to designate a surrogate to make medical decisions for their child in their absence.
By and large, the new legislation is a positive change for Floridians. We encourage you to come in and discuss designating a health care surrogate. Even if you have already designated a health care surrogate, the existing document should be reviewed based on the revised legislation. You may want to consider changing your named health care surrogate or the authority granted to your surrogate.