New Florida Laws Broaden Health Care Surrogate Designations

Beginning October 1, Florida parents now are able to designate a person to make health care decisions for their minor children in case the parent is unable to be reached. Additionally, the traditional health care surrogate designation for adults can be amended to allow for decisions to be made without a declaration of incapacity. These updates provide greater flexibility in planning—protecting children and ourselves from needless delays when medical treatment is needed.

Health Care Surrogate for Children

New Health Care Surrogate Law

The new law that affects minors, Section 765.2035 for the Florida Statutes, allows the parents or the legal guardian to name another adult to make medical decisions for the minor. Prior to October 1, 2015, the law specified who was allowed to make decisions for a minor in the absence of the parent, legal guardian, or a power of attorney. Now parents have been given greater leeway in choosing whom they prefer to have that responsibility for medical decisions. Before a minor’s health care surrogate can step in to make decisions in a parent’s absence, however, a reasonable attempt must be made to contact the parent or legal guardian. This new health care surrogate designation must be signed after September 30, 2015. This update should provide comfort for parents who set up these designations, especially those who travel frequently.

The second update allows a person to give her health care surrogate the authority to act immediately—without a prior determination of incapacity. This amendment to Florida Statute Section 765.202 could be wonderfully beneficial when capacity is fluid. Although on first look this appears it could be confusing for medical personnel if two people have the power to make decisions, the law protects against that with a provision assuring that the wishes of the principal (the one who has designated the surrogate) always supersede those of the surrogate in the absence of an incapacity determination.

Designating Your and Your Children's Health Care Surrogate

Designating your health care surrogate is one part of a complete estate plan. Additionally, whether for yourself or your minor children, you can choose a date the designation ends or allow it to remain in place until you revoke it. You can also update just your health care surrogate forms at any time, and an estate planning attorney can help you understand how this piece fits in the broader picture.

To talk about your estate plan and health care surrogate goals, call tan estate planning attorney to discuss your concerns and develop a plan that helps achieve your goals.

Attorney Jana McCreary

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Houston Estate Planning and Elder Law Attorney Jana R. McCreary has been an attorney for over seventeen years, a career move she made after working for over a decade with adults and children with intellectual disabilities and mental illness. Graduati… Read More

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