It’s the Law: Medical care decisions if incapacitated — do you know how this works?

Q: I am a widow and I am concerned that no one is authorized to make quick medical care decisions if I am incapacitated. How can I be sure someone can make decisions for me?

A: Chapter 765 of Florida statutes addresses healthcare advanced directives. In that chapter, the legislature expresses its intent that every individual have the fundamental right of self-determination regarding decisions pertaining to his or her own health, including the right to choose or refuse medical treatment. The statutes are intended to ensure that this right is not lost or diminished by virtue of later physical or mental incapacity.

Sections 202 through 205 deal with healthcare surrogates. Healthcare surrogate is a person designated by a principal to make healthcare decisions. The designation must be in writing and must be signed by the principal in the presence of two subscribing adult witnesses. If a principal is unable to sign the designation, another person may sign the principal’s name at the direction of the principal. The document designating healthcare surrogate may also designate an alternate surrogate to assume duties in event the primary surrogate is unable or unwilling to perform his duties.

The statutes include a proposed form for designating a healthcare surrogate. It provides that the healthcare surrogate becomes authorized to make healthcare decisions when the principal is determined to be incapacitated. Incapacity may not be inferred from the principal’s voluntary or involuntary hospitalization for mental illness or from his or her mental retardation.

If the principal’s capacity to make healthcare decisions is in question, the attending physician is required to evaluate the principal’s capacity. If the physician determines the principal lacks capacity, that determination is to be entered in the principal’s medical record. If the attending physician has any question, a second physician is to evaluate the principal and enter his or her determination in the principal’s medical record. If the principal is determined to lack capacity to make healthcare decisions, and the principal has designated a healthcare surrogate or has delegated authority to make healthcare decisions under a durable power-of-attorney, the healthcare facility is required to notify the surrogate or attorney-in-fact in writing that his or her authority to make healthcare decisions has commenced.

If the principal regains capacity, authority of the surrogate ceases, but recommences if the principal later loses capacity.

Once the surrogate has authority to make decisions, the surrogate can make decisions in virtually all areas of healthcare unless limited by the authorizing document. This authority includes providing written consent for medical procedures and applying for public benefits, such as Medicare or Medicaid, on behalf of the principal. Unless specifically authorized in the power, no surrogate or proxy may make decisions concerning abortion, sterilization, electric shock therapy, psycho-surgery or experimental treatments that have been approved by a Federally approved institution or review board or to withhold or withdraw life prolonging procedures for a pregnant patient prior to viability of the fetus.

The principal’s family, the healthcare physician, the attending physician or any other interested person who may reasonably expected to be directly affected by the surrogate’s decision may seek expedited judicial review if that person believes (1) the surrogate’s decision is not consistent with the patient’s known desires or Florida statutes. (2) The advanced directive is ambiguous where the patient has changed his or her mind. The principal can revoke a designation of healthcare surrogate orally. (3) The surrogate is improperly designated or appointed because the designation is no longer effective or has been revoked. (4) The surrogate has failed to discharge duties or incapacity or illness renders the surrogate incapable of discharging duties. (5) The surrogate has abused powers or (6) the patient has sufficient capacity to make his or her own healthcare decisions.

A designation of healthcare surrogate has no affect on insurability or insurance. Issuance of insurance may not be conditioned on designation of a healthcare surrogate.

In event there are no advance directives, or those designated to make healthcare decisions are not available, healthcare decisions can still be made for a patient. The statute provides a list of persons that can make decisions, if no individual in a prior class is reasonably available, willing or competent to act, beginning with a judicially appointed guardian and ending with a clinical social worker licensed pursuant to Florida statutes or who is a graduate of a court approved guardianship program.

The advanced directives concept is in effort an individual with protection for his or her right to make these decisions. The statutes lay out the authority and procedure for designating persons to make decisions on behalf of a principal. Although the statutes contain a default clause in event the principal has not designated a decision maker, a person will be better served by designating a surrogate of his or her choice and providing specific direction as to medical care procedures. As with all legal matters, working with an experienced attorney to accomplish these goals is a prudent course.


William G. Morris is a lawyer with offices at 247 N. Collier Blvd., Marco Island. The column is not intended to be legal advice for specific circumstances. General questions can be sent by e-mail to or by fax to (239) 642-0722. Read other columns at

© 2008 All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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