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.

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The Importance of a Health Care Surrogate

A client recently came to see me because her husband’s son from a previous marriage had himself appointed his father’s emergency temporary guardian. This was done with no notice to her, as allowed by Florida law. I recently received a distraught call from her because her husband was in the hospital, and she had just heard that her husband’s doctors would not discuss his condition with her. The Order appointing her stepson as emergency temporary guardian (ETG) gave him the right to make all health care decisions for his father and he had instructed them not to discuss her husband’s care with her. Just to make matters worse, the son who is now calling the shots had been estranged from his father.

The guardianship laws require that the judge shall determine whether the ward, prior to incapacity, has executed any valid” advance directive naming a health care surrogate. If an advance directive exists, then the judge is required to “specify in its order and letters of guardianship what authority, if any, the guardian shall exercise over the surrogate.” Generally, the judge will provide that the guardian shall have no authority over the health care surrogate pending further order of the court. See, Fla. Stat. sec. 744.3115 

It is unclear whether the client has a health care surrogate directive from her husband. If she has one, then we could probably get the judge to modify his previous order appointing the ETG. The judge could not modify or revoke her authority as the health care surrogate without finding grounds under Florida Statute section 765.105. Therefore, in all likelihood, she would have the right to make the health care decisions and to discuss her husband’s care with his doctors.

If there is no directive naming her as her husband’s health care surrogate, then the client may not gain back control of her husband’s health care. However, at a minimum, the judge will probably require that she be kept informed of her husband’s care and treatment.

This situation highlights the importance of proper estate planning, including a directive naming a health care surrogate.