What Is a Healthcare Surrogate?
A healthcare surrogate is a person you designate to make medical decisions on your behalf when you are unable to communicate or make decisions yourself. In Florida, this is accomplished through a healthcare surrogate designation, governed by Florida Statutes Section 765.202. It is Florida's equivalent of a medical power of attorney or healthcare proxy used in other states.
Without a healthcare surrogate designation, if you become incapacitated, your family may disagree about your care, and a court may need to appoint a guardian to make medical decisions. This process is stressful, expensive, and entirely avoidable with proper planning.
How a Healthcare Surrogate Works
The healthcare surrogate designation is activated only when your attending physician determines that you lack the capacity to make your own healthcare decisions. Until that point, you retain full authority over your medical care. Once activated:
- Your surrogate consults with your healthcare providers
- Your surrogate makes decisions consistent with your known wishes
- If your wishes are unknown, the surrogate acts in your best interest
- Your surrogate has access to your medical records
- Your surrogate can consent to or refuse treatment, including surgery, medication, and therapy
If you regain capacity, your authority over your own medical decisions is automatically restored.
Healthcare Surrogate vs. Living Will
These two documents serve different but complementary purposes:
- A healthcare surrogate designation names a person to make medical decisions for you
- A living will states your specific wishes about end-of-life care (life-prolonging procedures, artificial nutrition, pain management)
The living will provides the instructions; the surrogate carries them out. You should have both. If a situation arises that your living will does not specifically address, your surrogate uses their judgment to make the decision.
Healthcare Surrogate vs. Power of Attorney
A healthcare surrogate handles medical decisions. A power of attorney handles financial decisions. They are separate documents that serve separate purposes. You may name the same person for both roles, or you may choose different people based on their strengths and your preferences.
Who Can Be a Healthcare Surrogate?
Under Florida law, any competent adult can serve as your healthcare surrogate. The person does not need to be a family member. However, your surrogate cannot be:
- Your healthcare provider (doctor, nurse, hospital)
- An employee of your healthcare provider, unless they are related to you by blood, marriage, or adoption
You should also name an alternate surrogate in case your primary surrogate is unavailable, unwilling, or unable to serve when needed.
What If You Do Not Have a Healthcare Surrogate?
If you become incapacitated without a healthcare surrogate designation, Florida law establishes a default hierarchy of decision-makers under F.S. 765.401:
- Court-appointed guardian (if one has been appointed)
- Spouse
- Adult child (or majority of adult children if multiple)
- Parent
- Adult sibling (or majority of adult siblings)
- Adult relative who has maintained regular contact
- Close friend
- Licensed clinical social worker
This default hierarchy often leads to family disputes, especially in blended families, estranged relationships, or situations where multiple children disagree. A healthcare surrogate designation eliminates this uncertainty.
Requirements for a Valid Healthcare Surrogate Designation
Florida's requirements are straightforward:
- The principal must be a competent adult
- The designation must be in writing
- The principal must sign the document
- Two witnesses must sign the document
- Notarization is not required, but is recommended
The designation should be provided to your surrogate, your physician, and your hospital or care facility. Keep copies accessible in case of emergency.
HIPAA Authorization
A separate HIPAA authorization allows your healthcare surrogate (and other designated individuals) to access your medical records and communicate with your healthcare providers. Without a HIPAA authorization, federal privacy laws may prevent your surrogate from obtaining the information they need to make informed decisions. Your estate planning attorney typically prepares this alongside your healthcare surrogate designation.
Frequently Asked Questions
What is a healthcare surrogate in Florida?
A healthcare surrogate is a person you designate to make medical decisions when you cannot communicate or make decisions yourself. It is governed by Florida Statutes Section 765.202 and is Florida's equivalent of a medical power of attorney.
What is the difference between a healthcare surrogate and a living will?
A healthcare surrogate is a person who makes decisions for you. A living will is a document stating your specific end-of-life care wishes. The surrogate carries out those wishes and makes additional decisions when the living will does not address a specific situation.
Who can be a healthcare surrogate in Florida?
Any competent adult can serve. The person cannot be your healthcare provider or an employee of your provider unless they are related to you by blood, marriage, or adoption.
Does a healthcare surrogate designation need to be notarized?
No. Florida law requires only the principal's signature and two witness signatures. Notarization is recommended but not legally required.
Need to designate a healthcare surrogate? Contact Barnes Walker for estate planning guidance.