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Florida Health Care Surrogate and Advanced Directives Statute

SCHEDULE A CONSULTATION

This is an incomplete summary of Florida Statutes, Chapter 765, Health Care Advance Directives as I believe are applicable to my elder law practice and incapacity planning documents. This summary is subject to change and is for general informational purposes only.

The relevant sections below are also referred to as the Florida Health Care Surrogate Act (Part II) and Life-Prolonging Procedure Act of Florida (Part III);

PART I: GENERAL PROVISIONS

765.101. Definitions.

(1) Advance Directive: a witnessed written document or oral statements in which instructions are given by principal expressing their desires concerning any aspect of the principal’s health care or health information, including but not limited to: designating a health care surrogate, a living will, or an anatomical gift made pursuant to part V below.

(2) Attending Physician: the doctor who has primary responsibility for the care of a patient while in a hospital.

(3) Close Personal Friend: anyone 18 years old (or older) who has exhibited special care and concern for the patient, and who presents an affidavit to the health care facility or to PCP stating that they are a friend and are willing/able to become involved in the patient’s health care; and has maintained such regular contact with the patient so as to be familiar with the patient’s activities, health and religious/moral beliefs.

(4) End-Stage Condition: 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, treatment of the condition would be ineffective.

(5) Health Care: care, services, or supplies related to one’s health (i.e. diagnostic, preventative, therapeutic, rehabilitative, maintenance or palliative care + counseling, service, assessment or procedures related to one’s physical or mental condition).

(6) Health Care Decision: (a) informed consent, refusal of consent, or withdrawal of consent to any and all health care including life-prolonging procedures and mental health treatment; (b) decision to apply for private, public, government, or veterans benefits to defray the cost of health care; (c) the right of access to principal’s health information necessary for a health care surrogate or proxy to make decisions involving health care and to apply for benefits; (d) ability to make an anatomical gift.

(7) Health Care Facility: hospital, nursing home, hospice, home health agency or HMO.

(9) Health Information: any information subject to HIPAA

(10) Incapacity or Incompetent: patient is physically or mentally unable to communicate a willful and knowing healthcare decision.

(11) Informed Consent: consent voluntarily given by a person after a sufficient explanation of the subject matter has been given to enable to person to have a general understanding of proposed treatment or procedures and related risks + medically-acceptable alternatives.

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

(13) Living Will: a witnessed document, in writing (per 765.302 further described below) or witnessed oral statement made by principal concerning Life-Prolonging Procedures.

(15) Persistent Vegetative State: permanent and irreversible condition of unconsciousness where there are no voluntary actions or cognitive behaviors of any kind.

(17) Primary Physician: doctor designated by individual (or individual’s surrogate, proxy or agent under durable power of attorney as provided in chapter 709) to have primary responsibility for individual’s health care. See Florida Power of Attorney Statute - Chapter 709 Summary here)

(18) Principal: competent adult executing an advanced directive

(19) Proxy: competent adult who has not been expressly designated to make health-care decisions for a particular incapacitated individual, but who is authorized per 765.401 to make such health care decisions.

(20) Reasonably Available: readily able to be contacted without undue effort and willing/able to act in a timely manner considering the urgency of patient’s needs.

(21) Surrogate: any competent adult expressly designated by a principal to make health care decisions and receive health care information. A surrogate may act immediately without the necessity for a determination of incapacity or only upon the principal’s incapacity as provided in 765.204, below.

(22) Terminal Condition: condition caused by injury or disease/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.

(1) 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.

(2) to further this interest, the Florida legislature sets for this procedure to allow a person to plan for their own incapacity by executing a document designating another person to direct the course of their healthcare and receive their private health information.

(3) Competent adults may choose whether they want assistance making healthcare decisions immediately (without requiring an incapacity determination) or only upon them being determined incapacitated.

(4) the Florida legislature recognizes that certain life-prolonging medical procedures may result in only a precarious and burdensome existence and so competent adults can make decisions in this regard to make advanced directives, to provide withhold or withdraw such interventions

765.104. Amendment or Revocation.

(1) An advanced directive can be amended or revoked in a variety of ways by a competent principal (orally, by action, or in a signed/dated writing).

(2) Unless otherwise provided in the advanced directive, if a couple becomes divorced the former spouse will automatically be removed as surrogate.

765.105. Review of Surrogate or Proxy Decisions.

Patient’s family or doctor may seek expedited judicial intervention if the interested person believes that the decision does not reflect the patient’s known desires, the advanced directive is ambiguous, if the surrogate/proxy has abused his/her own powers, etc…

765.1105. Transfer of a Patient.

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

765.112. Advanced Directives Executed in Another State.

If valid in that other state, it should be honored in Florida.

PART II: HEALTH CARE SURROGATE

765.202. Designation of a Health Care Surrogate.

(1) Must be signed in the presence of two subscribing witnesses.

(2) At least one witness should not be the principal’s spouse or blood relative.

(3) Successor surrogates may be designated should original be unwilling or unable to act.

(4) If no surrogate is available/willing, facility may seek appointment of a health care proxy pursuant to Part IV below.

(6) A principal may stipulate that the authority of the surrogate to receive health information or make health decisions (or both) is exercisable immediately without the necessity for a determination of capacity as provided in 765.204, below.

765.203. Suggested Health Care Surrogate Designation Form

This section provides a suggested form to use.

765.2035. Designating a Health Care Surrogate for Minors.

Natural guardians or legal guardians may designate a healthcare surrogate for minor children. Suggested form can be found at 765.2038.

765.204. Capacity of Principal, Procedure.

(2) If capacity (to make healthcare decisions or provide informed consent) is questioned primary or attending physician shall evaluate capacity. If incapacity is concluded, such evaluation must be entered into the medical record. If questionable, the evaluating doctor must have another physician evaluate capacity. If incapacity is found, the healthcare 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 (with health-care decision making powers). The attending physician shall 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 and consult with appropriate health care providers to provide informed consent for the principal which he/she believes the principal would have made under the circumstances if the principal were capable of making such decisions.

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 provide written consent whenever consent is required - including a DNR order.

The surrogate should also be provided access to the appropriate health information of the principal.

The surrogate may apply for public benefits such as medicaid and medicare and have access to 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; Notice to Physician.

(1) Any competent adult may make a living will to direct the providing, withholding or withdrawal of life-prolonging procedures in the event such person has a terminal condition, end-state condition or is in a persistent vegetative state.

A living will must be signed by the principal in the presence of two subscribing witnesses (one must not be a spouse or blood relative)

(2) It is the principal’s responsibility to provide his/her primary doctor notification that the living will has been made - but, if incapacitated, any other person may notify the doctor or health care facility of the existence of the living will.

Once notified, the doctor or facility will promptly make the living will a part of the patient’s medical records.

(3) a living will, properly executed, establishes a rebuttable presumption of clear and convincing evidence of the principal’s wishes.

765.303. Suggested Living Will Form.

A pdf printout of the suggested living will form can be found by clicking the link.

765.304. Procedure for Living Will.

(1) 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 his/her wishes concerning life-prolonging procedures, the primary physician may proceed as directed by the living will.

If there is a dispute, the primary physician shall not withhold or withdraw life-prolonging procedures pending review under 765.105. If a review is not sought within seven (7) 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.

(2) Before proceeding in accordance with the living will, it must be determined that (a) the principal does not have a reasonable medical probability of recovering capacity so that the right could be exercised directly by the principal; and (b) the principal has a terminal condition, end-stage condition or is in a persistent vegetative state; and (c) any limitations or conditions expressed orally or in writing have been considered and satisfied.

765.305. Procedure in Absence of a Living Will.

(1) In absence of living will, the decision to withhold or withdraw life-prolonging procedures may be made by a health care surrogate designated (unless end-of-life decision making ability is specifically limited by the health care surrogate designation document).

(2) 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 so the right could be exercised by the patient and that the patient has an end-stage condition, 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 (such findings documented in the medical record) must diagnose a terminal condition / end-state condition / persistent vegetative state, before life-prolonging procedures may be withheld or withdrawn.

765.309. Mercy Killing / Euthanasia Not Authorized.

But withholding/withdrawal of life-prolonging procedures in accordance with this chapter does not constitute suicide.

PART IV: ABSENCE OF ADVANCE DIRECTIVE

765.401. The Proxy.

(1) If an incapacitated patient has not executed an advance directive or designated a surrogate to execute an advanced directive (or surrogate is no longer available to make healthcare decisions), health-care decisions may be made in the following order of priority:

  1. Judicially appointed guardian
  2. Patient’s spouse
  3. Patient’s parent
  4. Adult sibling. If more than one, a majority of adult siblings available for consultation.
  5. Adult relative who has exhibited special care/concern for patient and who has maintained regular contact with patient.
  6. Close friend
  7. Clinical social worker selected by provider’s bioethics committee.

765.404. Persistent Vegetative State.

If no advance directives, surrogate or available proxy and the patient is in a persistent vegetative state, this section provides procedure for removing life-prolonging interventions.

PART V: ANATOMICAL GIFTS

Sets forth procedures for making anatomical gifts (sign tissue donor card, register with online donor registry, signify on drivers license, expressing wish in living will or advance directive, via Last Will and Testament)

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