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What is a Health Care Proxy and how is it Different 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 or the designated surrogate is unable or unwilling to act. The health care proxy statute provides the legal ability for the family and others to take over someone's health decisions if the incapacitated person is unable to make health care decisions themselves. When an estate planning attorney (like us) helps with incapacity planning, we always do the appropriate advance directives, which includes the living will and health care surrogate designation. If someone fails to correctly plan ahead for their incapacity, the Florida proxy law provides an orderly determination for who will make the incapacitated person's health care decisions.

The Florida Health Care Proxy statute provides the order of people who can make decisions for the incapacitated person who does not have a capable health care surrogate 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 three (3) children are her health care proxy, and that the majority decisions on mom's healthcare will rule.

The Florida Department of Children and Families (DCF) has a health care proxy acceptance affidavit (download the form for free here), which can be very helpful for those seeking to help take over the health decisions (defined below) of their incapacitated loved ones. Of course, good estate and incapacity planning tries to avoid the health care proxy but if your loved one becomes incapacitated and a health care surrogate was not created, you can follow this statute and download the DCF affidavit (above) to help your family member.

In the day and age of the coronavirus and COVID-19, many more people may become incapacitated without advance preparation, so this form may be useful.

How is it determined that somone is incapacitated?

You are incapacitated/incompetent for these purposes for not being able to make your own health care decisions, which generally means that you lack the ability to provide informed consent.  Informed consent means consent voluntarily given by a person after a sufficient explanation and disclosure of the subject matter involved to enable that person to have a general understanding of the treatment or procedure and the medically acceptable alternatives, including the substantial risks and hazards inherent in the proposed treatment or procedures, and to make a knowing health care decision without coercion or undue influence.

What powers does a health care proxy have?

Florida Statutes gives the proxy the power to make the incapacitated person's health care decisions, listed as follows, which includes the power to provide:

  • Informed consent, refusal of consent, or withdrawal of consent to any and all health care, including life-prolonging procedures and mental health treatment, unless otherwise stated in the advance directives.
  • The decision to apply for private, public, government, or veterans’ benefits to defray the cost of health care [such as Medicaid].
  • The right of access to health information of the principal reasonably necessary for a health care surrogate or proxy to make decisions involving health care and to apply for benefits.
  • The decision to make an anatomical gift pursuant to Florida Statutes.

Please note that while the proxy can apply for Medicaid benefits on the incapacitated person's behalf, the proxy does not give someone the ability to access someone's bank accounts or make other financial or legal decisions.

What about financial decisions?

A health care proxy (or designation of healthcare surrogate) does not give the ability for the family to make financial decisions, which includes banking, bill paying, legal matters and more. If the person needing help is competent, then he or she should do a durable power of attorney with a good elder law attorney. If the person is incapacitated and family member needs to assist them with bill paying, financial matters and other legal aspects, then someone may need to petition for a guardianship in order to help make the legal and financial decisions. The guardianship process can also take away the incapacitated person's rights, which may be necessary when someone has dementia and does not recognize their own incapacity.

What if someone is incapacitated but not accepting their incapacity?

In this event, it is possible that a guardianship will be necessary to help manage the incapacitated person's affairs. A Florida guardianship means that a court takes away the incapacitated person's right to make their own decisions.

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
Connect with me
Estate Planning and Board Certified Elder Law Attorney
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