Florida Estate Planning and Probate Law Blog focused on recent case law and planning ideas.


A “Designation of Health Care Surrogate” (“Designation”) is typically prepared in connection with one’s basic estate planning documents. A Designation is a written document naming someone to make health care decisions for an individual (the “principal”) or receive health information on the principal’s behalf in the event he or she is unable to do so. The instrument is not effective until the principal lacks the ability to make the decisions on their own behalf (a determination of incapacity). Although Florida has recognized an individual’s right to designate a health care surrogate, effective October 1st, two key changes go into effect. 
First, a designated health care surrogate will now be able to act immediately, prior to any determination of incapacity of the principal. Under the new statute, the Designation can be drafted so that the health care surrogate has the power to act immediately upon execution of the document and avoid waiting for a determination of incapacity of the principal. However, if the principal has mental capacity, his or her decisions would be controlling and would not require any consent of the surrogate. In addition, the Designation can be revoked at any time. 
Second, parents will be able to name a health care surrogate for a minor child in the event the parents (or guardian) are unable to act. In such case, whoever is taking care of the minor child can be authorized to make such decisions without the delay of locating a parent who is unavailable. This designation is made by an executed document and can be amended or revoked at any time.
It is important to understand that a Designation of Health Care Surrogate is distinct from a “Living Will” which is a separate document that reflects one’s desire to have life prolonging procedures (machines) removed where the principal is terminally ill or in a persistent vegetative state with no reasonable probability of recovery. The individual chosen to be the health care surrogate would normally also be named in the Living Will document to ensure that the wishes of the principal are carried out.