Most people assume that if something happened to them, a serious accident, an unexpected surgery, or a sudden illness, their spouse or closest family member would automatically be allowed to make medical decisions on their behalf.
While Florida law does provide a default statutory backup plan, relying on it is incredibly risky. Without a properly executed Health Care Surrogate designation, your loved ones can face immediate, stressful roadblocks. Under strict federal HIPAA privacy laws, medical providers may be legally prohibited from sharing information with your family until your incapacity is formally and officially documented by a doctor. Furthermore, if you are unmarried, part of a blended family, or if your children disagree on your care, Florida’s default system can break down entirely.
The decision about your care could easily be delayed or compromised while family members scramble to navigate a rigid legal system that was never set up to move quickly in a crisis.
The good news: this is one of the most straightforward legal documents you can put in place. Here is what every Florida adult, including those newly 18, needs to know.
The Three Documents Every Florida Adult Should Have in Place
At the Law Offices of Jennifer D. Peshke, P.A., a Health Care Surrogate designation is rarely prepared in isolation. Most clients complete what is commonly referred to as an Ancillary Estate Plan, a package of three foundational documents that work together to protect you in the event of incapacity or a medical emergency:
- Health Care Surrogate Designation, authorizes a trusted person to make medical decisions on your behalf if you are unable to do so
- Living Will, records your own instructions regarding life-prolonging treatment and end-of-life care so your wishes are clearly documented
- Durable Power of Attorney, authorizes a trusted person to manage your financial and legal affairs if you become incapacitated
These three documents address different but deeply connected areas of your life, and they are most effective when prepared together by the same attorney who understands your full picture. Having all three in place means that if something unexpected happens, the people you trust most have the legal authority to step in immediately, for your medical care, your finances, and your personal wishes, without the delay and expense of court involvement. This is typically far more affordable than people expect, and the peace of mind it provides for you and your family is invaluable.
A Crucial Note for Parents of 18-Year-Olds
If you are sending a child off to college or out into the workforce, a Health Care Surrogate should be at the top of your transition checklist.
The day your child turns 18, they are legally an adult. This triggers an immediate shift in parental rights that catches most families completely off guard during an emergency:
- The HIPAA Blockade: Because of strict federal privacy laws, if your 18-year-old is rushed to the emergency room, hospital staff cannot legally give you medical updates or discuss their condition over the phone just because you are their parent.
- The Emergency Safety Net: Naming you as their surrogate doesn’t mean you are micro-managing their healthcare. The document stays completely dormant and invisible unless a doctor certifies that they are temporarily or permanently unable to communicate for themselves.
Taking ten minutes to have your young adult sign a Florida Health Care Surrogate form ensures that if a crisis happens while they are away from home, you won’t be locked out of the room when they need you most.
What Is a Health Care Surrogate in Florida?
A Designation of Health Care Surrogate is a legal document that authorizes a person of your choosing to make medical decisions on your behalf if you become unable to make or communicate those decisions yourself.
Florida uses the specific term “health care surrogate”, you may also see this referred to in other states as a health care proxy or medical power of attorney, but in Florida, those terms describe the same concept. The governing law is the Florida Health Care Advance Directives Act, found in Chapter 765 of the Florida Statutes.
Your health care surrogate does not have any authority while you are capable of making your own decisions. The designation only becomes active when your attending physician and, in most cases, a second physician, formally determine that you lack the capacity to make informed medical decisions.
What Can a Health Care Surrogate Do?
Once activated, your designated surrogate has broad authority to act on your behalf in medical matters, including:
- Consenting to or refusing medical treatment, surgery, and procedures
- Accessing your medical records and communicating with your health care providers
- Making decisions about life-prolonging treatment and end-of-life care (if you have granted this authority)
- Choosing or changing your doctors, hospitals, or care facilities
- Authorizing the release of medical information to family members and other appropriate parties
The scope of your surrogate’s authority is defined by your document. A well-drafted designation makes your wishes clear and gives your surrogate the tools they need to advocate for you confidently.
What Happens Without a Health Care Surrogate Designation?
Florida law does provide a fallback process for situations where a patient has no health care surrogate designation. Under Florida Statute 765.401, medical providers may look to a legally defined list of “proxy” decision-makers, a spouse, adult children, parents, siblings, and so on, in a specific order of priority.
The problem with relying on this default process:
- It is slower. Your care team must work through the statutory list and determine who has authority, which takes time in an already stressful situation.
- It can create conflict. If family members disagree about your care, there is no designated person with clear legal authority to make the final call.
- It may not reflect your actual wishes. The person who ends up making decisions under the proxy statute may not be the person you would have chosen, or may not know what you would have wanted.
- HIPAA can create barriers. Without a valid surrogate designation that includes a HIPAA authorization, medical providers may be restricted in what information they can share, even with close family members.
Simply put, leaving this to chance places your care and your family in an unnecessarily difficult position.
How to Choose Your Health Care Surrogate
Choosing the right person is arguably more important than the document itself. Your health care surrogate should be:
Someone you trust completely. This person will potentially be making life-altering decisions during an emotionally charged situation. They need to be someone whose judgment you respect and who understands your values.
Someone who can handle pressure. Medical crises are stressful. Your surrogate may need to communicate firmly with medical staff, navigate disagreements among family members, and make difficult decisions quickly.
Someone who knows your wishes. The most important thing you can do after executing the designation is to have a thorough conversation with your surrogate about your values, your preferences, and what quality of life means to you. A document without a conversation leaves your surrogate guessing.
Someone who is available. Consider whether your chosen surrogate lives nearby or can travel quickly if needed. Florida law also requires that your surrogate be at least 18 years old and not be your health care provider or an employee of your health care facility.
You may also name an alternate surrogate, a backup in case your primary surrogate is unavailable or unwilling to serve when the time comes.
Florida Requirements for a Valid Health Care Surrogate Designation
Under Florida law, a Designation of Health Care Surrogate must be:
- In writing
- Signed by you (the principal) in the presence of two witnesses
- The witnesses must be adults, and neither witness may be your designated health care surrogate
- One of the two witnesses must not be a spouse or blood relative
Unlike some other legal documents in Florida, a health care surrogate designation does not require notarization, though some estate planning attorneys include notarization as a best practice.
Once signed, you should give a copy to your surrogate, your alternate surrogate, your primary care physician, and any medical facilities where you regularly receive care. Keep the original in a place your surrogate can access quickly.
Does My Health Care Surrogate Have Access to My Medical Records?
Yes, but only if your designation document specifically includes HIPAA authorization language. The Health Insurance Portability and Accountability Act (HIPAA) places strict limits on who can access your medical information, and those restrictions apply even to family members.
A properly drafted Florida health care surrogate designation should include explicit HIPAA authorization language that allows your surrogate to obtain and review your medical records. Without this language, your surrogate may have legal authority to make decisions but practical difficulty getting the information they need to make them well.
Frequently Asked Questions
Is a health care surrogate the same as a power of attorney in Florida? No. A Durable Power of Attorney governs financial and legal decisions. A Health Care Surrogate designation governs medical decisions. They are separate documents that address different areas of your life. Most Florida estate planning attorneys recommend having both, along with a living will, as part of a complete advance directive package.
Can I name more than one health care surrogate in Florida? You may name a primary surrogate and one or more alternates, but only one person serves as your surrogate at any given time. Having multiple co-surrogates with shared authority is generally not recommended, as it can create confusion or conflict in a medical emergency.
What if my family disagrees with my health care surrogate’s decisions? Your designated surrogate has legal authority to make decisions on your behalf. Family members who disagree may challenge the surrogate’s decisions through the courts, but a clearly written designation, combined with a documented conversation about your wishes, is the strongest protection against this kind of conflict.
Does a health care surrogate designation from another state work in Florida? Florida generally honors health care advance directives executed in other states if they were valid under the laws of the state where they were signed. However, if you have moved to Florida, it is strongly advisable to have a Florida-specific document prepared to avoid any ambiguity.
At what age should I set up a health care surrogate designation? The moment you turn 18. Medical providers cannot legally take direction from your parents once you are an adult unless you have designated them as your surrogate. College students, young professionals, and adults of all ages benefit from having this document in place.
Get a Health Care Surrogate in Vero Beach, FL
A Health Care Surrogate designation is one of the most important, and most overlooked, legal documents a Florida adult can have. It costs far less than you might expect to put in place, and it can spare your family an enormous amount of uncertainty and anguish at an already difficult time.
The Law Offices of Jennifer D. Peshke, P.A. helps individuals and families throughout Vero Beach and Indian River County establish complete advance directive packages, including health care surrogate designations, living wills, and powers of attorney.
Call us at (772) 231-1233 or contact us online. We serve clients in Vero Beach, Sebastian, Fort Pierce, and communities throughout the Treasure Coast.
Jennifer Peshke, Esq. is the founder of the Law Offices of Jennifer D. Peshke, P.A., a full-service law firm located in Vero Beach, Florida. Her practice includes elder law, estate planning, probate administration, real estate law, and more.
This blog post is intended for general informational purposes only and does not constitute legal advice. Reading this post does not create an attorney-client relationship. Please consult a licensed Florida attorney regarding your specific situation.