Advance healthcare planning allows you to decide who should make medical decisions for you and what treatment preferences should be followed if you cannot communicate or make those decisions yourself.
In Florida, important planning documents can include a designation of health care surrogate and a living will. These documents serve different purposes and should be coordinated with the rest of your estate and incapacity plan.
Florida Consumer Lawyers helps clients prepare healthcare directives that reflect their values, medical preferences, and choice of decision-maker.
A healthcare directive should be clear enough to guide family members and medical providers, while also working together with a durable power of attorney, will, and other estate-planning documents.
What Is an Advance Directive in Florida?
An advance directive is a legal instruction made in advance concerning healthcare decisions that may need to be made later.
Florida law recognizes several forms of healthcare planning, including the designation of a health care surrogate and the living will. These documents can address who should make decisions and what treatment preferences should be followed if the person cannot make or communicate those decisions personally.
The Main Healthcare Planning Documents
Designation of Health Care Surrogate — Names the person who may make healthcare decisions for you and, if authorized, receive health information.
Living Will — States your wishes regarding life-prolonging procedures in specified serious medical circumstances.
Do Not Resuscitate Order (DNRO) — A separate medical order concerning resuscitation. It is related to advance planning, but it is not the same document as a living will or health care surrogate designation.
What Is a Florida Designation of Health Care Surrogate?
A designation of health care surrogate allows you to name another person to make healthcare decisions for you or receive health information on your behalf, or both.
Florida law requires the written designation to be signed in the presence of two adult subscribing witnesses. The person named as surrogate cannot serve as a witness, and at least one witness must be neither the principal's spouse nor blood relative.
The document may also name an alternate surrogate in case the first person is unwilling or unable to serve.
Who Should You Choose as Your Health Care Surrogate?
A good surrogate should generally be someone who:
- Understands your values and treatment preferences;
- Is willing to make difficult medical decisions;
- Can communicate effectively with doctors and family members;
- Is likely to follow your wishes even under pressure; and
- Is available when needed.
The closest relative is not automatically the best choice.
Is a Health Care Surrogate the Same as a Living Will?
No.
A health care surrogate designation identifies the person who may make healthcare decisions.
A living will states the person's wishes concerning life-prolonging procedures under specified serious medical conditions.
Many estate plans include both documents because one identifies the decision-maker while the other provides direction about the person's treatment preferences.
Is a DNR the Same as an Advance Directive?
No.
A Florida do-not-resuscitate order is a separate medical order dealing specifically with resuscitation. It should not be confused with a living will or designation of health care surrogate.
The appropriate document depends on the person's medical situation, goals, and planning needs.
When Does a Health Care Surrogate Make Decisions?
As long as you have decision-making capacity, your own healthcare decisions control.
If your capacity to make healthcare decisions becomes uncertain, Florida law provides a process for evaluating that capacity. If you are determined to lack the ability to make healthcare decisions, the properly designated surrogate may then exercise the authority granted by the document.
This is one reason the designation should clearly identify the person you trust and the authority you want that person to have.
Can Your Surrogate Receive Medical Information Before Incapacity?
A healthcare surrogate designation can be drafted to address access to health information as well as decision-making authority.
That can be useful when you want a trusted person to communicate with medical providers, understand treatment options, or assist with healthcare matters even before a full incapacity determination becomes necessary.
What If Your First Health Care Surrogate Cannot Serve?
It is usually wise to name an alternate surrogate in case the first person dies, becomes incapacitated, declines to act, or cannot be reached when needed.
Naming an alternate can reduce uncertainty during a medical crisis.
What Should You Do With Your Healthcare Directives After Signing Them?
Once the documents are properly executed:
- Keep the originals in a location that can be accessed when needed;
- Give copies to the people you have named as surrogate and alternate surrogate;
- Consider providing copies to your physician or other regular healthcare providers;
- Let close family members know who has been designated; and
- Make sure the people who may need the documents know where they can be found.
Healthcare directives are most useful when the right people can locate them during an emergency.
Can You Change or Revoke a Florida Advance Directive?
Yes.
A competent principal can generally amend or revoke an advance directive through methods recognized by Florida law, including a signed and dated writing, physical cancellation or destruction, an oral expression of intent, or execution of a later materially different directive. The change becomes effective when it is communicated to the surrogate, healthcare provider, or healthcare facility.
When a directive is changed, the people and providers who received the old version should be given the updated document.
What Happens If Your Spouse Is Your Health Care Surrogate and You Divorce?
Florida law generally provides that dissolution or annulment of the marriage revokes the designation of a former spouse as health care surrogate unless the directive or court order provides otherwise.
Divorce is therefore an important time to review healthcare directives along with the rest of the estate plan.
When Should You Review Your Healthcare Directives?
Review them when important circumstances change, including:
- Marriage or divorce;
- Death or incapacity of the named surrogate;
- A major new diagnosis;
- Significant changes in treatment preferences;
- A change in family relationships;
- Moving to Florida from another state; or
- Any time the existing documents no longer reflect your wishes.
What If Your Advance Directive Was Signed in Another State?
Moving to Florida is a good time to have existing healthcare directives reviewed for compatibility with Florida law and current wishes.
Florida law addresses recognition of certain advance directives executed in other states, but a review can help identify outdated names, unavailable decision-makers, or provisions that no longer fit the person's circumstances.
Talk With the People You Name
Signing the document is only part of the planning process.
The surrogate should understand:
- That they have been named;
- What your healthcare values and preferences are;
- Where the documents are stored;
- Who the alternate surrogate is; and
- Whether you have also completed a living will or DNRO.
Clear communication can make the documents much easier to use when a medical crisis occurs.
Why Should You Have Healthcare Directives?
Healthcare directives are not only for people who are seriously ill.
A medical emergency, accident, surgery, sudden illness, or cognitive decline can leave someone temporarily or permanently unable to communicate or make healthcare decisions. Advance planning allows you to choose who should speak for you and document important treatment preferences before a crisis occurs.
These documents can also reduce uncertainty for family members who might otherwise be asked to make difficult decisions without knowing what you would have wanted.
Should Healthy Adults Have Advance Directives?
Yes. Advance directives are primarily planning documents, not end-of-life documents.
A healthy adult can unexpectedly lose decision-making capacity because of an accident, serious illness, anesthesia, neurological event, or other medical emergency.
Creating the documents while you have capacity gives you control over who should act and what guidance that person should have.
What Happens If You Cannot Make Medical Decisions and Did Not Name a Surrogate?
If a person lacks capacity and has not designated a healthcare surrogate, Florida law provides a statutory process for identifying who may make healthcare decisions on the person's behalf.
That process can involve family members or other individuals in an order established by law, depending on the circumstances.
Naming your own surrogate in advance gives you more control over who will speak for you rather than relying on the default decision-making process.
Is a Health Care Surrogate the Same as a Durable Power of Attorney?
No.
A durable power of attorney generally addresses financial and legal authority.
A designation of health care surrogate addresses healthcare decisions and access to medical information.
Many basic estate plans include both because they solve different problems.
Can Healthcare Directives Reduce the Need for Guardianship?
Sometimes.
A valid healthcare surrogate designation can provide a trusted decision-maker without requiring a court to appoint someone for the same healthcare decisions.
But advance directives do not eliminate every situation in which guardianship may become necessary. The question depends on the person's capacity, the authority already in place, and whether less restrictive alternatives are sufficient.
Living Will
A living will states your wishes concerning life-prolonging procedures under specified serious medical circumstances.
It does not replace a health care surrogate designation. One document provides treatment guidance; the other identifies the person who may make healthcare decisions.
Learn more about Florida living wills →
Florida Do Not Resuscitate Order
A Florida DNRO deals specifically with whether resuscitation should be attempted in the circumstances covered by the order.
It is a separate medical order and should not be confused with a living will or general advance directive.
Learn more about Florida DNROs →
How Do These Documents Fit Together?
A basic incapacity plan may include:
- A durable power of attorney for financial and legal matters;
- A designation of health care surrogate for medical decision-making;
- A living will for end-of-life treatment preferences; and
- A last will and testament for property and estate administration after death.
A DNRO may also be appropriate in some medical situations, but it serves a different purpose from the estate-planning documents above.
The right healthcare planning documents depend on the person's goals and medical circumstances. Estate-planning documents can address decision-making and treatment preferences, while certain medical orders—such as a DNRO—may also require involvement from a healthcare provider.
Talk With a Florida Advance Directives Lawyer
Advance healthcare planning gives you the opportunity to choose who should make medical decisions for you and to document important treatment preferences before a crisis occurs.
Florida Consumer Lawyers can help you prepare or update healthcare directives and coordinate them with your durable power of attorney, will, and overall estate plan.
We Can Help If You Need To:
- Name a health care surrogate;
- Name an alternate surrogate;
- Create or update a living will;
- Review an out-of-state advance directive;
- Replace outdated healthcare documents;
- Coordinate healthcare directives with a durable power of attorney;
- Clarify the difference between a living will and DNRO;
- Update documents after marriage, divorce, illness, or a change in family circumstances; or
- Build a simple incapacity plan before a medical emergency occurs.
The Best Time to Create Healthcare Directives Is Before They Are Needed
Advance directives are most effective when they are prepared while you have capacity, can clearly express your wishes, and have time to choose the right decision-maker.
Waiting until a medical crisis occurs can leave family members with fewer options and less guidance.
Healthcare Directives Should Work With the Rest of Your Estate Plan
Medical decision-making should not be planned in isolation.
A basic Florida estate plan may include:
- A designation of health care surrogate;
- A living will;
- A durable power of attorney; and
- A last will and testament.
These documents solve different problems and should be coordinated rather than treated as interchangeable forms.
Questions specifically about a Florida Do Not Resuscitate Order?
A DNRO is a separate medical order and should be evaluated based on the person's medical circumstances and goals.
Need Florida Healthcare Directives or Want Existing Documents Reviewed?
Start with a review of who you trust to make medical decisions, what treatment preferences you want documented, and how those decisions should fit with the rest of your estate plan.
Get a Free Estate Planning Consultation
Or Call (813) 282-9330
Florida Consumer Lawyers assists estate-planning clients throughout Florida from our Tampa office. Many consultations can be handled by phone or video conference, with in-person meetings available when appropriate.
Advance healthcare planning is fact-specific. The appropriate documents depend on the person's goals, family circumstances, medical preferences, and existing estate plan.