Your right to self-determination and to make ethical decisions about your own medical treatment are protected under Florida law. What many people do not realize, however, is that these rights can be entrusted to a loved one, should you lose the capacity to make health care decisions yourself. In fact, the Designation of Health Care Surrogate form is probably one of the most important legal documents you can have in your medical records.
The Designation of Health Care Surrogate is a document naming someone else who will make health care decisions for you if you are unable to make them yourself. It is similar to a Durable Power of Attorney, which primarily deals with property.
While a Durable Power of Attorney is effective at the time of execution, the Health Care Surrogate requires that you lack capacity to make your own decisions. Your attending physician (and sometimes a second physician) must determine that you are unable to make health care decisions before the surrogate can take over.
A Designation of Health Care Surrogate is intended to provide direction and authority, helping to avoid conflicts and confusion over your care. You cannot assume a physician has the authority to make health care decisions for you and (unless the patient is a minor) family members do not have the legal right to make decisions for you.
Expect families, and even physicians, to disagree about treatment options, especially in cases where a you have remarried or family members have become estranged. The Designation of Health Care Surrogate puts these arguments to rest.
You can choose any person to make health care decisions for you and your loved ones will need to respect your wishes. When deciding whom to choose, many people worry about placing an undue burden on a family member, such as an adult child, during an emotional time. However, knowing your specific wishes will help make decisions easier.
Some people consider naming someone outside the family to avoid appearing to play favorites between family members. However, keep in mind that your health care surrogate will make life and death decisions for you—decisions best left to those closest to you, such as your spouse or children.
You may trust your lawyer, your accountant, financial advisor or other professionals. You may even be emotionally attached or feel indebted to a caregiver, but leaving end-of-life decisions to any of these individuals rarely ends well, and is often challenged in court by family members.
Ultimately, giving careful thought about whom to designate, and having a Designation of Health Care Surrogate on file, can provide welcome direction and significantly reduce infighting among family members and confusion by medical professionals regarding treatment decisions.
What happens if you have not designated a health care surrogate? If you are incapacitated, either by an illness or accident, a Florida judge will select a court-appointed guardian. These proceedings are not only costly, but loss of your privacy and selection of a less desirable guardian is a common result. It is easy to avoid this result by taking the time to sign a Designation of Health Care Surrogate. There is no better time than the present—why not complete yours this week?
Next: We will address the use of a Designation of Health Care Surrogate in combination with a Declaration of Living Will in a future post.
Rose Marie K. Preddy, Esquire, owns the Preddy Law Firm, P.A. in Jacksonville, Florida. Ms. Preddy, a probate attorney in Jacksonville, has over 20 years of legal experience representing families and other clients in estate planning, guardianship, probate and planning for incapacity matters. Please do not hesitate to contact St. Johns County probate attorney Rose Marie with any questions.