Florida’s health care surrogate statute, Chapter 765 of the Florida Statutes, lets any competent adult name another person to make medical decisions if the adult later loses the capacity to decide. The chapter sets out who can serve, how to sign the designation so it holds up, when the surrogate’s authority actually begins, what that authority covers, and who decides for a patient who never named anyone.
Who Can Serve as Your Surrogate
You have broad freedom in choosing. The person does not need to be a relative. A friend, neighbor, or anyone else you trust can serve, as long as they are a competent adult willing to accept the role.1Florida Senate. Florida Code 765.202 – Designation of a Health Care Surrogate
One restriction matters. An employee of a health care facility where you are receiving treatment cannot serve as your surrogate unless that employee is your relative. The rule exists to keep the person delivering your care separate from the person directing it.
You can also name an alternate who steps in if your first choice is unavailable, unwilling, or unable to act. If both the primary and alternate are out of the picture, the facility can seek appointment of a proxy under the default hierarchy in the statute.2The Florida Legislature. Florida Code 765.202 – Designation of a Health Care Surrogate
Signing a Valid Designation
The designation must be in writing. You sign it in front of two adult witnesses, and the statute imposes two witness rules that people miss:
- Your surrogate cannot be a witness. The person you appoint must be someone other than either witness.
- At least one of the two witnesses cannot be your spouse or a blood relative.
If you are physically unable to sign, you can direct another person to sign your name for you, provided this happens in the witnesses’ presence.1Florida Senate. Florida Code 765.202 – Designation of a Health Care Surrogate
Notarization is not required. The document is legally valid so long as the signing and witness requirements are met. You may include specific care instructions in the designation itself, and an exact copy of the signed document must be provided to the surrogate.2The Florida Legislature. Florida Code 765.202 – Designation of a Health Care Surrogate
When the Surrogate’s Authority Starts
Timing depends on the language you use in the designation. You have two options.
The default is a springing designation. Your surrogate has no authority until a physician determines you lack the capacity to make your own medical decisions. You stay in control until that finding is made. Alternatively, you can state in the document that the surrogate’s authority takes effect immediately upon signing, without waiting for any incapacity determination.2The Florida Legislature. Florida Code 765.202 – Designation of a Health Care Surrogate
For springing designations, the capacity process has a built-in check. Your attending or primary physician evaluates you. If that physician concludes you lack capacity, the finding is entered in your medical record. If the physician is uncertain, a second physician must also evaluate you, and both must agree before the finding is entered.3The Florida Legislature. Florida Code 765.204 – Capacity of Principal; Procedure Once recorded, the facility must notify your surrogate in writing that their authority has begun.
A baseline runs underneath all of this. You are presumed capable of making your own decisions unless a physician formally determines otherwise. Incapacity cannot be assumed from the mere fact of hospitalization, including for mental health treatment.3The Florida Legislature. Florida Code 765.204 – Capacity of Principal; Procedure If you regain capacity, the surrogate’s authority ends, and your own decisions control whenever there is a conflict.
What the Surrogate Can Decide
Once the authority is active, the powers are broader than most people expect. Your surrogate can consent to or refuse treatment, approve surgeries, provide written consent for a do-not-resuscitate order, review your medical records, consult with your physicians, and apply for Medicare, Medicaid, or similar public benefits on your behalf, including accessing income, asset, and financial records to the extent needed for those applications.4The Florida Legislature. Florida Code 765.205 – Responsibility of the Surrogate
The public benefits authority surprises people. Your surrogate has limited access to financial information, but only for the narrow purpose of applying for government programs. They cannot pay your bills, manage your bank accounts, sell property, or handle broader financial matters. That requires a separate durable power of attorney. Health care and financial roles are kept separate on purpose.
Federal law reinforces the medical-records piece. Under HIPAA, a person with authority under state law to make health care decisions qualifies as your personal representative and is entitled to access your protected health information.5U.S. Department of Health & Human Services. Individuals’ Right Under HIPAA to Access Their Health Information 45 CFR 164.524
Your surrogate’s authority is also limited by whatever restrictions you write into the designation itself. If you carve out specific decisions the surrogate cannot make, those limits are binding.4The Florida Legislature. Florida Code 765.205 – Responsibility of the Surrogate
The Standard the Surrogate Must Follow
The statute does not leave the decision-making standard to guesswork. Your surrogate is legally required to make the decision they believe you would have made if you could decide for yourself. This is substituted judgment. The surrogate is not supposed to impose their own preferences or pick what they think is objectively best.4The Florida Legislature. Florida Code 765.205 – Responsibility of the Surrogate
Only if there is no indication of what you would have wanted may the surrogate turn to your best interest in deciding whether to withhold or withdraw proposed treatments.4The Florida Legislature. Florida Code 765.205 – Responsibility of the Surrogate The right question is always what you would choose before it becomes what the surrogate thinks is best. Written care instructions in the designation itself take much of the pressure off that judgment.
Revoking a Designation
You can revoke the designation at any time while you still have capacity. Florida recognizes several methods: a signed writing revoking the designation, an oral statement communicated to your surrogate or health care provider, or physically destroying the original document with the intent to revoke.
Oral revocation takes effect immediately, and the provider should document it in your medical record. Executing a new surrogate designation also effectively revokes the earlier one, and it is the cleanest way to change who serves.
If You Never Named a Surrogate
When an incapacitated patient has no designation, or the named surrogate and alternate are both unavailable, Florida law provides a default priority list of people who can act as proxy. The statute moves down the list only when no one at a higher level is reasonably available, willing, and competent.6Justia. Florida Code 765.401 – The Proxy
- A court-appointed guardian already authorized to consent to medical treatment.
- Your spouse.
- Your adult children. If there are several, a majority of those reasonably available must agree.
- A parent.
- Adult siblings. If several, a majority of those reasonably available must agree.
- An adult relative who has shown special care for you and maintained regular contact.
- A close friend, who must file an affidavit showing familiarity with your activities, health, and beliefs.
- A licensed clinical social worker selected by the facility’s bioethics committee as a last resort, who cannot be employed by the provider.
If people at the same level disagree, the facility or a family member can petition a court to resolve the dispute. The proxy system is a safety net, and a blunt one. A formal designation lets you choose; the default hierarchy picks for you.
How a Living Will Fits In
A surrogate designation and a living will do different work. A living will is a standalone document that speaks directly to your medical team about life-prolonging treatment, and under Florida law it applies in three specific situations: a terminal condition, an end-stage condition, or a persistent vegetative state.7Florida Senate. Florida Code 765.302 – Procedure for Making a Living Will; Notice to Physician
A surrogate designation appoints a person to make decisions across the full range of medical situations, not just end-of-life ones. When both documents exist, the surrogate is bound to follow your written instructions, and providers can follow those instructions if a surrogate tries to deviate from a valid living will.4The Florida Legislature. Florida Code 765.205 – Responsibility of the Surrogate Executing both documents together, worded so they do not contradict each other, keeps the signals consistent when your medical team needs them.
What Hospitals Must Ask You
Under the federal Patient Self-Determination Act, every hospital, skilled nursing facility, hospice, home health organization, and HMO that participates in Medicare or Medicaid must tell you about your right to execute an advance directive, including the right to appoint a health care surrogate. Facilities must also ask whether you already have one and record your answer in your medical record. Expect the question at admission, and expect it at a moment when you would rather not be answering it for the first time.