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Changes in Florida’s Health Care Surrogate Laws Affect Minors and Adults

This year, the Florida Legislature has made some changes to Florida’s health care surrogate statutes. For example, after October 1, 2015, a person will be able to assign the power to a surrogate to make health care decisions for that person even if the person is not incapacitated. This is a significant change from the prior laws, which generally allowed a health care surrogate to act only after a determination of incapacity had been made.

Because a principal may regain capacity and in some instances, especially with the elderly, may vacillate in and out of capacity, a redetermination of incapacity has frequently been necessary to provide ongoing authorization for the health care surrogate to act. This process can hinder effective and timely assistance and is cumbersome. Further, some competent persons desire the assistance of a health care surrogate with the sometimes complex task of understanding health care treatments and procedures and with making health care decisions. For these reasons, the law was amended.

The bill amends the health care surrogate law to allow a person to designate a health care surrogate, who may act at any time, including while the person is still competent and able to make his or her own decisions. However, if the person is competent, his or her own decisions are controlling over any contrary decision of the surrogate.

Also starting October 1, 2015, the bill creates a means for designating a health care surrogate for the benefit of a minor when the parents, legal custodian, or legal guardian of the minor cannot be timely contacted by a health care provider or are unable to provide consent for medical treatment. This could be particularly useful when parents or guardians are traveling without their minor children.