This is the first part of a series of blog posts about the changes in elder law during this year’s legislative session with many of these laws going into effect on or before October 1, 2015. The update presents changes in the law regarding designation of Health Care Surrogate.
Background Information about Advance Directives by the Florida Bar:
The Florida Legislature has recognized that every competent adult has the fundamental right of self-determination regarding decisions pertaining to his or her own health, including the right to choose or refuse medical treatment or procedures which would only prolong life when a terminal condition exists. This right, however, is subject to certain interests of society, such as the protection of human life and the preservation of ethical standards in the medical profession. To ensure that this right is not lost or diminished by virtue of later physical or mental incapacity, the Legislature has established a procedure within Florida Statutes Chapter 765 allowing a person to plan for incapacity, and if desired, to designate another person to act on his or her behalf and make necessary medical decisions upon such incapacity.
What is a Health Care Surrogate?
Any competent adult may also designate authority to a Health Care Surrogate to make all health care decisions during any period of incapacity. During the maker’s incapacity, the Health Care Surrogate has the duty to communicate with appropriate health care providers. The Surrogate also provides informed consent and makes only health care decisions for the maker, which he or she believes the maker would have made under the circumstances if the maker were capable of making such decisions. If there is no indication of what the maker would have chosen, the Surrogate may consider the maker’s best interest in deciding on a course of treatment. The suggested form of this instrument has been provided by the Legislature within Florida Statutes Section 765.203.
Important Changes in the Law
One of the most welcome and significant changes the Legislature passed was regarding the Heath Care Surrogate statue. A Designation of Health Care Surrogate is an advanced directive that allows you to name another person as your representative to make medical decisions for you if you are unable to make them. You can include instructions about treatments you may or may not want as well as designate a successor surrogate. Before October 1st, 2015, your Designations of Health Care Surrogate would only be valid if you were incapacitated.
This year, the Florida Legislature improved the statute to allow you to indicate that you wished for your Designated Health Care Surrogate to be able to make medical decisions for you even if you remained capacitated. In other words, you no longer have to be incapacitated for your Designated Health Care Surrogate to make your medical decision for you should you indicate this is your preference on your validly executed paperwork. Please note that you must specifically include language to this effect, otherwise your surrogate will only be able to make medical decisions if you are incapacitated.
Those of us who care of the elderly and practice elder law are very excited about this new statute as it will surely enhance our ability to care for our loved ones.