Estate Planning · Florida
Health Care Surrogate Designations in Florida
Written by Blake Stewart | Florida Bar No. 84716 | Admitted 2010 | Florida Bankruptcy & Estate Planning Attorney
A Florida health care surrogate designation is a written advance directive in which you expressly choose a trusted adult to make health care decisions on your behalf. The document can authorize health care decisions, access to health information, or both — and can take effect immediately or upon a determination of incapacity, depending on how it is drafted.
What Is a Florida Health Care Surrogate Designation?
A Florida health care surrogate designation is a written advance directive in which the principal — the person making the document — expressly designates a trusted adult to make health care decisions on the principal's behalf. The document may authorize health care decisions, access to health information, or both, within the scope of authority the principal grants.
The designated surrogate may consent to, refuse, or withdraw consent for health care on the principal's behalf, within the authority the document provides. The surrogate acts as the principal's decision-maker — not as an independent authority — and is expected to act in accordance with the principal's known wishes and best interests.
A health care surrogate designation is not the same as a statutory health care proxy. A surrogate is expressly designated by the principal in a written document. A health care proxy is a statutory fallback decision-maker under Fla. Stat. § 765.401 — identified by a statutory hierarchy when no effective advance directive or available designated surrogate controls. A proxy is not chosen by the patient; a surrogate is.
In other states, similar documents may be called a health care proxy, medical power of attorney, or health care power of attorney. Florida uses the term "health care surrogate" for the expressly designated decision-maker. The terms are not interchangeable under Florida law.
Florida Execution Requirements
Under Fla. Stat. § 765.202, a health care surrogate designation must be signed by the principal in the presence of two subscribing adult witnesses. A principal who is physically unable to sign may direct another person to sign the document in the principal's presence and in the presence of the two witnesses.
Two witness rules apply:
- →The person designated as surrogate may not serve as a subscribing witness.
- →At least one of the two witnesses must be neither the principal's spouse nor a blood relative of the principal.
Notarization is not required by Fla. Stat. § 765.202 and does not substitute for the required witness signatures. An exact copy of the executed document should be provided to the designated surrogate, and copies should be given to relevant health care providers when appropriate.
Primary and Alternate Surrogates
A principal may designate a primary surrogate and may expressly designate an alternate surrogate in the same document. The alternate may act if the original surrogate is unwilling, unable, or not reasonably available to serve.
The absence of an alternate does not invalidate the primary designation. However, naming an alternate reduces the risk that the statutory health care proxy process under Fla. Stat. § 765.401 will be needed to identify a decision-maker — a process that may not select the person the principal would have personally chosen.
When selecting an alternate, apply the same considerations as for the primary surrogate: trust, availability, ability to communicate under pressure, and willingness to serve.
When Does the Surrogate's Authority Begin?
The timing of the surrogate's authority depends on how the document is drafted. Florida law permits two approaches:
Authority upon incapacity
The document may provide that the surrogate's authority begins after a determination of incapacity under Florida law. Under Fla. Stat. § 765.204, incapacity is determined by the principal's primary physician and, if required, a second physician or clinical psychologist. The surrogate may not act until that determination is made.
Immediate authority
The document may expressly grant immediate authority — to receive health information, make health care decisions, or both — without waiting for a determination of incapacity. This can be useful for coordinating care, accessing records, or communicating with providers even while the principal retains full capacity.
In either case, while the principal retains capacity, the principal's own decisions control. The surrogate's authority does not override a capable principal's choices.
Health Information and HIPAA Access
A health care surrogate designation can authorize the surrogate to receive health information reasonably necessary to make decisions and apply for health-related benefits on the principal's behalf. This authorization can be drafted to take effect immediately — before any determination of incapacity — if the document expressly provides for it.
A coordinated HIPAA authorization can reduce delays and confusion when the surrogate needs to communicate with hospitals, physicians, or insurance carriers. Without clear authorization, providers may be reluctant to share information even with a named surrogate.
Providing copies of the executed document to relevant health care providers when appropriate — and ensuring the surrogate has an exact copy — helps ensure the document is available when it is needed.
Health Care Surrogate vs. Living Will
These are two separate documents that serve different purposes:
- →A health care surrogate designation identifies a trusted person to make health care decisions on the principal's behalf.
- →A living will is a separate advance directive that gives written instructions about life-prolonging procedures in specified end-of-life conditions under Fla. Stat. § 765.302. It does not appoint a person.
Many clients benefit from having both documents, drafted to work together. A living will can guide the surrogate's decisions in end-of-life situations; the surrogate can address the full range of medical decisions the living will does not cover.
Health Care Surrogate vs. Durable Power of Attorney
These documents address different domains of decision-making authority:
- →A durable power of attorney generally addresses financial and legal authority — managing accounts, signing contracts, handling real estate, and similar matters.
- →A health care surrogate designation addresses health care decisions and health information — consenting to or refusing treatment, accessing medical records, and communicating with providers.
One document should not be casually used as a substitute for the other. A complete Florida estate plan typically includes both a durable power of attorney and a health care surrogate designation, each addressing its own domain.
Choosing the Right Surrogate
The choice of surrogate is one of the most personal decisions in an estate plan. The right person is not necessarily the closest family member — it is the person best suited to carry out the role under pressure. Consider:
Trust
The surrogate will have access to your medical information and the authority to make significant decisions. Choose someone whose judgment you trust completely.
Availability
Medical decisions can arise suddenly. The surrogate should be reachable and able to respond quickly, including in emergencies.
Ability to communicate under pressure
The surrogate may need to advocate for your wishes with physicians, hospital staff, and family members — sometimes in difficult circumstances.
Understanding your values
The surrogate should understand what matters to you — your views on treatment, quality of life, and end-of-life care — so they can make decisions that reflect who you are.
Willingness to advocate
The surrogate must be willing to assert your wishes even when others disagree, including family members who may have different views.
Geographic proximity
Physical presence can matter in a medical crisis. A surrogate who lives nearby may be better positioned to respond quickly and communicate in person with providers.
Family dynamics
If family conflict is a concern, choosing a surrogate who can manage those dynamics — or who is insulated from them — reduces the risk of disputes affecting your care.
Willingness to serve
Confirm that the person you are considering is willing to take on this responsibility. A surrogate who is unprepared or unwilling may not serve effectively.
After selecting a primary surrogate, consider naming an alternate. If the primary surrogate is unwilling, unable, or not reasonably available, the alternate may act — reducing the risk that the statutory proxy process will be needed.
What Happens Without a Designated Surrogate?
If no effective advance directive or available designated surrogate controls, Florida law may use the statutory health care proxy hierarchy under Fla. Stat. § 765.401 to identify a decision-maker. The proxy hierarchy identifies decision-makers in a statutory order of priority — but the statutory fallback may not select the person the patient would have personally chosen.
The proxy process can also create delays and uncertainty at a time when clear decision-making authority matters most. A written health care surrogate designation removes that uncertainty by putting the principal's choice in a document that providers can act on.
Frequently Asked Questions
Does a Florida health care surrogate designation need to be notarized?
No. Fla. Stat. § 765.202 does not require notarization for a health care surrogate designation. The document must be signed by the principal in the presence of two subscribing adult witnesses. Notarization is not a statutory requirement and does not substitute for the required witness signatures.
How many witnesses are required for a Florida health care surrogate designation?
Two subscribing adult witnesses are required under Fla. Stat. § 765.202. At least one of the two witnesses must be neither the principal's spouse nor a blood relative of the principal.
Can my designated surrogate serve as a witness?
No. The person designated as health care surrogate may not serve as a subscribing witness to the designation under Fla. Stat. § 765.202.
Should I name an alternate surrogate?
Yes, when possible. A principal may expressly designate an alternate surrogate in the document. The alternate may act if the original surrogate is unwilling, unable, or not reasonably available. Naming an alternate reduces the risk that the statutory health care proxy process under Fla. Stat. § 765.401 will be needed to identify a decision-maker.
Does my spouse automatically become my health care surrogate?
No. A health care surrogate is expressly designated by the principal in a written document. A spouse does not automatically become a designated surrogate. If no effective advance directive or available designated surrogate controls, Florida's statutory health care proxy hierarchy under Fla. Stat. § 765.401 may apply — and a spouse may be high in that hierarchy — but that is a statutory fallback, not an automatic designation.
When does my surrogate's authority begin?
It depends on how the document is drafted. A health care surrogate designation may provide that authority begins after a determination of incapacity under Florida law. Alternatively, the document may expressly grant immediate authority — to receive health information, make health care decisions, or both — without waiting for a determination of incapacity. While the principal retains capacity, the principal's own decisions control regardless of what authority the document grants.
Can my surrogate receive medical information before I become incapacitated?
Yes, if the document is drafted to authorize it. A health care surrogate designation can authorize the surrogate to receive health information reasonably necessary to make decisions and apply for health-related benefits. Immediate access to health information can be authorized even before incapacity if the document expressly provides for it. A coordinated HIPAA authorization can reduce delays and confusion when the surrogate needs to communicate with providers.
What is the difference between a health care surrogate and a living will?
A health care surrogate designation identifies a trusted person to make health care decisions on the principal's behalf. A living will is a separate advance directive that gives written instructions about life-prolonging procedures in specified end-of-life conditions — it does not appoint a person. Many clients benefit from having both documents, drafted to work together.
What is the difference between a health care surrogate and a health care proxy?
These are not interchangeable terms under Florida law. A health care surrogate is expressly designated by the principal in a written advance directive. A health care proxy is a statutory fallback decision-maker under Fla. Stat. § 765.401 — a person identified by the statutory hierarchy when no effective advance directive or available designated surrogate controls. A proxy is not chosen by the patient; a surrogate is.
Can I revoke or replace my health care surrogate designation?
Yes. A principal with capacity may revoke a health care surrogate designation at any time. Revocation may be accomplished by a signed, dated writing; by physical destruction of the document; by an oral statement to the surrogate or health care provider; or by execution of a new designation. Providing updated copies to providers and the surrogate helps ensure the current document controls.
Related Estate Planning Resources
Statutes Referenced: Fla. Stat. § 765.202 (designation of health care surrogate; execution requirements) · § 765.204 (capacity; procedure) · § 765.302 (living will; execution requirements) · § 765.401 (health care proxy; statutory fallback hierarchy)
Put Clear Decision-Making Authority in Place
Stewart Law prepares health care surrogate designations, living wills, durable powers of attorney, and simplified estate plans for clients throughout Florida. Call (321) 541-6845 or schedule a consultation to put clear decision-making authority in place.
Schedule a Consultation