Have you revised your health care surrogate forms? A look back at the October 2015 revisions to the Florida Health Care Surrogate Act.

• Author: Baskies, Jeffrey A.

Effective October 1, 2015, the Florida Legislature adopted sweeping revisions to the Florida Health Care Surrogates Act. (1) These changes require practitioners to revise their designation of health care surrogate forms and spend additional time with their clients when executing them. At this point, it is unclear if new forms and extended explanations have become the norm in practice. Having lived with the changes for over a year now, however, it is appropriate to look back at revisions to the act and discuss how to incorporate the changes into our practice.

Background

In the 2015 legislative session, Florida adopted new heath care surrogacy initiatives (modifications to the act) that provide greater flexibility and more choices in drafting and implementing Florida designations of health care surrogates. (2) The significant changes can be summarized as follows:

1) The act adds legislative finding that "some competent adults may want to receive immediate assistance in making health care decisions or accessing health information, or both, without a determination of incapacity." Further finding "[t]he [l]egislature intends a procedure be established to allow a person to designate a surrogate to make health care decisions or receive health information, or both, without the necessity for a determination of incapacity under this chapter." (3)

2) To facilitate the legislative findings, a Florida resident client may now execute a presently exercisable designation of health care surrogate form (sometimes referred to as a "durable" health care surrogate form), granting one or more surrogates the power to make heath care decisions and give health care instructions even while the client has capacity. (4)

3) Relatedly, the changes to the act include directions that if a client possesses capacity, any health care decisions the client makes (verbally or in writing) will supersede any instructions or decisions made by the surrogate(s) in material conflict. (5)

4) The act defines "health information" and provides the surrogate express access to such health information (a move to align with the Health Insurance Portability and Accountability Act--HIPAA). (6)

5) A Florida resident client may now grant to a health care surrogate authority to receive health information immediately, even while the client has capacity.

6) The act also codifies the ability of parents to name health care surrogates for their minor children, which is an extremely helpful tool for those who may be traveling without their children, for example. (7)

7) The act adds an exclusion for a client who is not incapacitated and who has designated a surrogate with immediate authority to make health care decisions or to access health information, or both, from the expedited judicial intervention procedures pursuant to Fla. Prob. R. 5.900. (8)

8) The act now requires health care facilities to notify the surrogate upon a determination of incapacity even if the health care surrogate is immediately exercisable. The facilities are also required to notify any attorneys in-fact in writing if the health care facilities know of any durable powers of attorney that authorize the attorney-in-fact to make health care decisions. (9)

9) The act also now requires the hospital in which any attending physician made a determination of incapacity to inform the client's principal or primary physician of the determination of incapacity. (10)

Changes to Designations of Health Care Surrogates

As a result of the revisions to the act, after October 1, 2015, a Florida client may designate a surrogate to make health care decisions even if the client is not determined to be incapacitated (i.e., the client may execute a "durable health care surrogate"). As noted, however, if the client has capacity, the act indicates the client's decisions are to be controlling over those of the surrogate if the directions materially conflict.

Further, even with a durable health care surrogate in place, a treating physician still must communicate treatment plans and/or changes in treatment plans to a client with capacity. (11)

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