Florida Health Care Surrogate and Advanced Directives Statute

Florida Health Care Advance Directives Law Explained

Florida Statutes Chapter 765 governs health care advance directives in Florida, including the designation of a health care surrogate, the execution of a living will, and the procedures for making health care decisions on behalf of an incapacitated person. The summary below covers the sections most relevant to Florida elder law practice and families planning for incapacity. This guide is not exhaustive and some sections have been omitted. It is meant for informational purposes only, as the law and its interpretation may have changed since this article was written. For a full overview of how advance directives work alongside other incapacity planning documents, read our guide on incapacity planning in Florida and our page on the durable medical power of attorney in Florida.

Part I General Provisions

What Are the Key Definitions in Florida's Health Care Advance Directives Law?

(Selected definitions most relevant to elder law and incapacity planning. Some subsections have been omitted.)

Advance Directive means a witnessed written document or oral statement in which a principal gives instructions concerning any aspect of their health care or health information, including designating a health care surrogate, executing a living will, or making an anatomical gift.

Attending Physician means the doctor who has primary responsibility for the care of a patient while in a hospital.

‍Close Personal Friend means any person 18 years of age or older who has exhibited special care and concern for the patient, who presents an affidavit stating they are a friend willing and able to become involved in the patient's health care, and who has maintained such regular contact with the patient as to be familiar with the patient's activities, health, and religious or moral beliefs.

End-Stage Condition means an irreversible condition caused by injury, illness, or disease that has resulted in progressively severe and permanent deterioration and which, to a reasonable degree of medical probability, would be ineffective to treat.

Health Care means care, services, or supplies related to one's health, including diagnostic, preventative, therapeutic, rehabilitative, maintenance, or palliative care, and counseling, service, assessment, or procedures related to one's physical or mental condition.

Health Care Decision means any of the following.

• Informed consent, refusal of consent, or withdrawal of consent to any and all health care including life-prolonging procedures and mental health treatment
• A decision to apply for private, public, government, or veterans benefits to defray the cost of health care
• The right of access to the principal's health information necessary for a surrogate or proxy to make health care decisions and apply for benefits
• The ability to make an anatomical gift

Health Care Facility means a hospital, nursing home, hospice, home health agency, or HMO.

Health Information means any information subject to HIPAA.

Incapacity or Incompetent means that a patient is physically or mentally unable to communicate a willful and knowing health care decision.

Informed Consent means consent voluntarily given by a person after a sufficient explanation has been provided to enable the person to have a general understanding of the proposed treatment or procedure and its related risks and medically acceptable alternatives.

Life-Prolonging Procedure means any intervention or treatment, including artificially provided sustenance and hydration, that sustains, restores, or supplants a spontaneous vital function. This term does not include the administration of a procedure or medication deemed necessary to provide comfort or alleviate pain.

Living Will means a witnessed document in writing or a witnessed oral statement made by a principal concerning life-prolonging procedures as further described in Florida Statutes 765.302.

Persistent Vegetative State means a permanent and irreversible condition of unconsciousness in which there are no voluntary actions or cognitive behaviors of any kind.

Primary Physician means the doctor designated by the individual, or the individual's surrogate, proxy, or agent under a durable power of attorney, to have primary responsibility for the individual's health care.

Principal means a competent adult who executes an advance directive.

Proxy means a competent adult who has not been expressly designated to make health care decisions for a particular incapacitated individual but who is authorized under Florida Statutes 765.401 to make such health care decisions.

Surrogate means any competent adult expressly designated by a principal to make health care decisions and receive health care information. A surrogate may act immediately without a determination of incapacity, or only upon the principal's incapacity, as provided in Florida Statutes 765.204.

Terminal Condition means a condition caused by injury, disease, or illness from which there is no reasonable medical probability of recovery and which, without treatment, can be expected to cause death.

765.102 Legislative Intent

(Selected subsections. Some have been omitted.)

Every competent adult has the right of self-determination regarding decisions related to their own health, including the right to choose or refuse medical treatment, subject to certain societal interests and ethical standards. To further this interest, the Florida legislature establishes procedures to allow a person to plan for their own incapacity by executing a document designating another person to direct the course of their health care and receive their private health information.

Competent adults may choose whether they want assistance making health care decisions immediately, without requiring an incapacity determination, or only upon being determined incapacitated. The legislature also recognizes that certain life-prolonging medical procedures may result in only a precarious and burdensome existence, and so competent adults may make advance directives to withhold or withdraw such interventions.

765.104 Amendment or Revocation

(Selected subsections. Some have been omitted.)

An advance directive may be amended or revoked at any time by a competent principal, whether orally, by action, or by a signed and dated written document. Unless otherwise provided in the advance directive, if a couple becomes divorced, the former spouse is automatically removed as surrogate.

765.105 Review of Surrogate or Proxy Decisions

The patient's family or doctor may seek expedited judicial intervention if an interested person believes that the surrogate or proxy decision does not reflect the patient's known desires, the advance directive is ambiguous, or the surrogate or proxy has abused their powers.

765.1105 Transfer of a Patient

If a health care provider or facility refuses to comply with a patient's advance directive or the treatment decision of the health care surrogate or proxy, the facility must make reasonable efforts to transfer the patient to another health care provider or facility that will comply with the advance directive within seven days, provided the patient is not in an emergency condition.

765.112 Advance Directives Executed in Another State

An advance directive that was valid in the state where it was executed must be honored in Florida. Families who move to Florida from another state should review existing documents with a Florida elder law attorney to confirm the documents meet Florida's specific execution requirements and will be recognized by Florida health care providers.

Part II Health Care Surrogate

765.202 Designation of a Health Care Surrogate

(Selected subsections. Some have been omitted.)

The designation of a health care surrogate must be signed by the principal in the presence of two subscribing witnesses. At least one witness must not be the principal's spouse or blood relative. Successor surrogates may be designated in the event the original surrogate is unwilling or unable to act. If no surrogate is available or willing, the facility may seek appointment of a health care proxy pursuant to Part IV.

Under the 2026 Florida standard, a principal may stipulate that the surrogate's authority to receive health information, make health decisions, or both is exercisable immediately, even while the principal still has capacity and without the necessity of a determination of incapacity. This is one of the most important distinctions between a Florida health care surrogate designation and a traditional durable medical power of attorney, which typically requires incapacity before the agent may act. For a detailed explanation of this distinction, read our article on medical power of attorney vs. health care surrogate in Florida.

765.203 Suggested Health Care Surrogate Designation Form

Florida Statutes 765.203 provides a suggested form for designating a health care surrogate. Use of this form is not mandatory, but it provides the minimum language required for a valid designation. An elder law attorney can draft a more comprehensive document that addresses specific family circumstances and end-of-life preferences.

765.2035 Designating a Health Care Surrogate for Minors

Natural guardians or legal guardians may designate a health care surrogate for minor children. A suggested form for this designation can be found at Florida Statutes 765.2038.

765.204 Capacity of Principal

(Selected subsections. Some have been omitted.)

If a patient's capacity to make health care decisions or provide informed consent is questioned, the primary or attending physician shall evaluate capacity. If incapacity is found, that evaluation must be entered into the medical record. If incapacity is questionable, the evaluating doctor must have another physician evaluate capacity as well. If incapacity is confirmed, the health care facility must notify in writing whoever has been delegated health care decision-making authority under a valid health care surrogate designation or durable power of attorney. The attending physician must also notify the patient's primary doctor.

765.205 Responsibility of the Surrogate

Unless expressly limited in the health care surrogate document, the surrogate has the authority to make all health care decisions for the principal during the principal's incapacity. The surrogate must consult with appropriate health care providers to provide informed consent for the principal based on what the surrogate believes the principal would have chosen under the circumstances. If there is no indication what the principal would have chosen, the surrogate may consider the patient's best interest in deciding what proposed treatments are to be withheld or withdrawn.

The surrogate may also take the following actions on behalf of the principal.

• Provide written consent whenever consent is required, including a DNR order
• Be provided access to the appropriate health information of the principal
• Apply for public benefits such as Medicaid and Medicare on behalf of the principal
• Access information regarding the principal's income and assets, including banking and financial records necessary for application for government benefits

Part III Life-Prolonging Procedures

765.302 Procedure for Making a Living Will

(Selected subsections. Some have been omitted.)

Any competent adult may make a living will to direct the providing, withholding, or withdrawal of life-prolonging procedures in the event they have a terminal condition, end-stage condition, or are in a persistent vegetative state. A living will must be signed by the principal in the presence of two subscribing witnesses, at least one of whom must not be the principal's spouse or blood relative.

It is the principal's responsibility to provide their primary doctor notification that a living will has been made. If the principal is incapacitated, any other person may notify the doctor or health care facility of the living will's existence. Once notified, the doctor or facility must promptly make the living will part of the patient's medical records.

A properly executed living will establishes a rebuttable presumption of clear and convincing evidence of the principal's wishes regarding life-prolonging procedures.

765.304 Procedure for Living Will

(Selected subsections. Some have been omitted.)

If a person has made a living will expressing their desires concerning life-prolonging procedures but has not designated a health care surrogate to execute those wishes, the primary physician may proceed as directed by the living will. If there is a dispute, the primary physician must not withhold or withdraw life-prolonging procedures pending review under 765.105. If a review is not sought within seven days following the primary physician's decision to withhold or withdraw life-prolonging procedures, the primary doctor may proceed in accordance with the principal's instructions.

Before proceeding in accordance with the living will, the following conditions must all be met.

• The principal does not have a reasonable medical probability of recovering capacity so that the right could be exercised directly by the principal
• The principal has a terminal condition, end-stage condition, or is in a persistent vegetative state
• Any limitations or conditions expressed orally or in writing have been considered and satisfied

765.305 Procedure in Absence of a Living Will

(Selected subsections. Some have been omitted.)

In the absence of a living will, the decision to withhold or withdraw life-prolonging procedures may be made by a health care surrogate designated under a valid surrogate designation, unless end-of-life decision-making ability is specifically limited in the document. Before exercising an incapacitated patient's right to forego treatment, the surrogate must be satisfied that the patient does not have a medically reasonable probability of recovering capacity and that the patient has an end-stage condition, is in a persistent vegetative state, or their condition is terminal.

765.306 Determining Patient Condition

The patient's primary doctor and at least one other consulting physician must separately examine the patient and document their findings in the medical record. Both physicians must diagnose a terminal condition, end-stage condition, or persistent vegetative state before life-prolonging procedures may be withheld or withdrawn.

765.309 Mercy Killing and Euthanasia Not Authorized

Nothing in Chapter 765 authorizes mercy killing or euthanasia. However, the withholding or withdrawal of life-prolonging procedures in accordance with this chapter does not constitute suicide.

Part IV Absence of Advance Directive

765.401 The Proxy

(Selected subsections. Some have been omitted.)

If an incapacitated patient has not executed an advance directive, has not designated a surrogate, or the surrogate is no longer available to make health care decisions, health care decisions may be made by a proxy in the following order of priority.

First- A judicially appointed guardian

Second- The patient's spouse

Third- An adult child of the patient; if more than one adult child, a majority of adult children available for consultation

Fourth- The patient's parent

Fifth- An adult sibling; if more than one, a majority of adult siblings available for consultation

Sixth- An adult relative who has exhibited special care and concern for the patient and has maintained regular contact

Seventh- A close personal friend
Eighth- A clinical social worker selected by the provider's bioethics committee

The inclusion of a clinical social worker as the eighth and final tier is a critical protection for patients who have no living family members or close friends available to serve as proxy. Without this provision, patients in that circumstance would have no decision-maker at all.

765.404 Persistent Vegetative State

If there are no advance directives, no surrogate, and no available proxy, and the patient is in a persistent vegetative state, Florida Statutes 765.404 provides procedures for removing life-prolonging interventions in these circumstances.

Part V Anatomical Gifts

Florida Statutes Chapter 765 Part V sets forth the procedures for making anatomical gifts in Florida. A person may make an anatomical gift by signing a tissue donor card, registering with the online donor registry, indicating the wish on a driver's license, expressing the wish in a living will or advance directive, or by direction in a Last Will and Testament.

Work With a Florida Elder Law Attorney

Advance directives are among the most important legal documents a Florida adult can execute. A health care surrogate designation and a living will ensure that the right person is making decisions and that those decisions reflect what the principal would have wanted. Without these documents in place, families may face conflict, delay, and the uncertainty of proxy decision-making at the most difficult moments. The Florida elder law and estate planning attorneys at Elder Needs Law draft advance directives tailored to each client's specific wishes and fully compliant with the 2026 Florida Health Care Advance Directives statute. For a full overview of all three incapacity planning documents every Florida adult should have, read our guide on incapacity planning in Florida.

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