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How does a health care proxy differ from a health care surrogate?

A health care proxy is used in Florida when someone is incapacitated and has not created a designation of health care surrogate. The proxy statute basically provides the legal order for family and others to take over someone's health decisions if they are unable to make decisions themselves. When we are doing our incapacity planning, we always do our advance directives, which include the living will and health care surrogate designation. If someone fails to correctly plan, then Florida law provides a back up for health care decision making.

The Florida Health Care Proxy statute provides the order of people who can make decisions as follows:

(a) The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability as defined in s. 393.063, who has been authorized to consent to medical treatment, if such guardian has previously been appointed; however, this paragraph shall not be construed to require such appointment before a treatment decision can be made under this subsection;
(b) The patient’s spouse;
(c) An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation;
(d) A parent of the patient;
(e) The adult sibling of the patient or, if the patient has more than one sibling, a majority of the adult siblings who are reasonably available for consultation;
(f) An adult relative of the patient who has exhibited special care and concern for the patient and who has maintained regular contact with the patient and who is familiar with the patient’s activities, health, and religious or moral beliefs; or
(g) A close friend of the patient.

Example: Mom has not done correct planning with her advance directives and she has a stroke and cannot make her own healthcare decisions. She is not married and has 3 children.  Florida law provides that her children are her health care proxy, and that the majority decisions on mom's healthcare will rule.

The Florida Department of Children and Families has a health care proxy acceptance affidavit, which can be very helpful for those seeking to help their loved one.

Of course, our planning tries to avoid the health care proxy, among other matters, but if your loved one becomes incapacitated and a health care surrogate was not created, you can follow this statute and use the DCF affidavit to help your family member.

If you want to learn more about estate planning in Florida, we are glad to send you a copy of my book, The Top 20 Ways to Protect Your Florida Estate.  

D. Rep DeLoach III
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Estate Planning and Board Certified Elder Law Attorney
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