The Florida’s Health Care Surrogate Act has undergone changes that took effect on October 1, 2015. One of the changes is how a health care surrogate may now act at any time and not just when the principal, or a competent adult who executes an advance directive and on whose behalf health care decisions are to be made or health care information is to be received, or both, is incapacitated.

Section 765.202(6) provides how a principal may designate a surrogate to receive health information or make health care decisions or both immediately, without the necessity for a determination of incapacity. See 765.202(6), Florida Statutes (2015).

When a surrogate has that authority while the principal or the patient is still competent, the patient’s wishes are controlling. See 765.204(1), Florida Statutes (2015).

Consequently, when drafting the Designation of Health Care Surrogate post October 1, 2015, the principal may now include the following language if the principal wishes to take advantage of this new flexibility:

MY HEALTH CARE SURROGATE’S AUTHORITY BECOMES EFFECTIVE WHEN MY PRIMARY PHYSICIAN DETERMINES THAT I AM UNABLE TO MAKE MY OWN HEALTH CARE DECISIONS UNLESS I INITIAL EITHER OR BOTH OF THE FOLLOWING BOXES:

IF I INITIAL THIS BOX [    ], MY HEALTH CARE SURROGATE’S AUTHORITY TO RECEIVE MY HEALTH INFORMATION TAKES EFFECT IMMEDIATELY.

IF I INITIAL THIS BOX [    ], MY HEALTH CARE SURROGATE’S AUTHORITY TO MAKE HEALTH CARE DECISIONS FOR ME TAKES EFFECT IMMEDIATELY. PURSUANT TO SECTION 765.204(3), FLORIDA STATUTES, ANY INSTRUCTIONS OR HEALTH CARE DECISIONS I MAKE, EITHER VERBALLY OR IN WRITING, WHILE I POSSESS CAPACITY SHALL SUPERSEDE ANY INSTRUCTIONS OR HEALTH CARE DECISIONS MADE BY MY SURROGATE THAT ARE IN MATERIAL CONFLICT WITH THOSE MADE BY ME.

Another important change is how a parent or a legal guardian may now designate a competent adult to serve as a health care surrogate to make health care decisions for a minor. See Section 765.2035, Florida Statutes (2015). Such designation must be in writing and signed by the principal in front of two adult witnesses. The person who is designated as a surrogate may not act as a witness. A principal may also designate an alternate surrogate but failure to do so does not invalidate the designation. See Sections 765.2035(1), 765.2035(2) and 765.2035(3), Florida Statutes (2015).

Unless the document provides a time of termination of the designation, the designation remains in effect until revoked by the minor’s principal. See Section 765.2035(6), Florida Statutes (2015).

If neither the designated surrogate nor the designated alternate surrogate is willing, able or reasonably available to make heath care decisions for the minor on behalf of the minor’s principal, then the persons listed in Section 743.0645(2) of the Florida Statutes have the power to consent to the medical care or treatment of a minor as if no surrogate had been designated. Section 765.2035(4), Florida Statutes (2015). Specifically, Section 743.0645(2) lists the persons who may consent to medical treatment on behalf of a minor in order of priority.

With this change, third parties, as designated by the principal, or those listed in Section 743.0645(2) of the Florida Statutes, may now consent to non-emergency medical treatment and thereby provide the minor with the necessary medical care without undue delay.

If you are currently in the process of creating your surrogate forms or are considering updating those forms, you should definitely take time to familiarize yourself with these changes to ensure that your new documents reflect your intent in light of these recent legislative changes.