A “Designation of Health Care Surrogate” is a written document naming someone to make health care decisions for an individual (the “principal”)  or receive health information on the principal’s behalf in the event he or she is unable to do so.

Although Florida has recognized an individual’s right to designate a health care surrogate since the enactment of the Florida Health Care Surrogate Act (the “Act”) in 1992, effective October 1st, two key changes to the Act go into effect.  First, a designated health care surrogate will now be able to act immediately, prior to any determination of incapacity of the principal. Second, parents will be able to name a health care surrogate for a minor child in the event the parents (or guardian) are unable to act.

Generally a person names a family member or close friend as their surrogate.  A health care surrogate designation is generally done in connection with one’s basic estate planning documents and should be in place regardless of one’s marital status or health. The document must be signed by the principal in the presence of two independent witnesses to be valid (neither witness can be the surrogate, and at least one must be someone other than a spouse, or a blood relative).  The Florida statute provides sample forms that can be used.  Additionally, hospitals often will provide their individual forms prior to a patient being admitted.

A Designation of Health Care Surrogate should not be confused with a “Living Will” which is a separate document that reflects one’s desire to have life prolonging procedures (machines) removed where the principal is terminally ill or in a persistent vegetative state with no reasonable probability of recovery. This document is also typically signed as part of a package with one’s will, revocable trust and health care surrogate designation.  Again, there is a statutory sample form for this document.  Generally the individual chosen to be the health care surrogate would also be named in the Living Will document to ensure that the wishes of the principal are carried out.

Historically, a determination of incapacity had been a prerequisite to any health care surrogate designation taking effect.  Under the new statute, the designation document can be drafted so that the health care surrogate has the power to act immediately upon execution of the document.  This is significant in that it does not require a determination of incapacity of the principal and therefore can avoid delay where it is questionable whether or not the principal is in fact incapacitated, fluctuates between capacity and incapacity or the primary or attending physician is not readily available.  Of course, where the principal has mental capacity, his or her decisions would be controlling and would not require any consent of the surrogate.  Additionally, the designation of a health care surrogate can be revoked at any time.  Further, one can still utilize the traditional designation form requiring a determination of incapacity before the surrogate would have any power over health care decisions.

The second key change in the statute is similarly practical where parents of a minor child are not available to give consent when an emergency health care decision must be made.  This is significant where parents both work long hours or travel frequently.  In such case, whoever is taking care of the minor child can be authorized to make such decisions without the delay of locating a parent who is unavailable. Again, this designation is made by an executed document having two independent witnesses and can be amended or revoked at any time.