October 1, 2015 Changes to Florida Health Care Surrogate Law

We have a guest post from attorney, Kim O’Neill of Campione & Hackney, P.A.  Kim recently joined Campione & Hackney as an associate. She is focusing on the areas of wills, trusts, estates, and probate. Kim recently took a look at some changes to Florida Statute Chapter 765 concerning health care surrogates (medical powers of attorney). Here is her synopsis of the recent changes:

Effective October 1, 2015 Florida state lawmakers made some significant changes with regard to the to the Florida Health Care Surrogate Laws. A health care surrogate is a “medical power of attorney” that allows you to appoint someone else to make medical decisions for you. There are two major changes every Florida resident should be aware of:

  • Fla Stat. 765.202(6) provides that an individual may elect to designate a health care surrogate who may act while the individual is still capable of making health care decisions, and
  • Stat. 765.2035 creates statutory authority for a parent, legal custodian or legal guardian to designate a health care surrogate who may consent to medical care for a minor.

Why do these changes matter? Previously, Health Care Surrogates only had the authority to act when the principal (i.e., the person appointing the health care surrogate) was incapacitated. Now, the principal has to make a decision when executing a Health Care Surrogate document:

  • Does the principal grant the Health Care Surrogate authority only after the principal is determined to be incapacitated OR
  • Does the principal grant the Health Care Surrogate authority to act while the principal is still capable of making health care decisions?

If the principal chooses the second option, the health care surrogate would still have authority if the principal is determined to be incapacitated.

But what happens if the principal has capacity and disagrees with the surrogate concerning a medical decision? The decision of the principal will control so long as the principal is still capable of making medical decisions. In other words, the appointment of a surrogate who is allowed to make decisions while the principal has capacity does not cause the principal to lose the power to make his or her own decisions.

The second major change gives statutory authority for parents to appoint someone else to serve as a Health Care Surrogate for their minor children. Previously, many were executing a power of attorney, to give a caregiver of a minor child the authority to consent to non-emergency medical care of the minor. After October 1, 2015, the only way to give the caregiver of a minor child the authority to consent to non-emergency medical care of the minor is through executing a Health Care Surrogate document. This is a great option for parents and legal guardians of minor children that travel frequently for work, are enlisted in the military, or are simply taking a vacation away from the children.

http://www.campionehackney.com

 

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