What is a Florida Medical Power Attorney?

A Medical Power of Attorney (or Designation of Health Care Surrogate) is a vital legal document that empowers a principal to designate a trusted individual to make medical decisions if incapacitated. This incapacitation may arise due to illness, injury, advanced age, or other factors that impair the principal's decision-making capacity.

In Florida, the designation of a Health Care Surrogate ensures that the principal's wishes regarding their medical treatment are honored, even when they cannot express them personally. The health care surrogate assumes fiduciary duty, obligating them to act following the principal's known preferences, values, and best interests.

Florida statutes (Chapter 765 and Section 744.3115) provide the framework for healthcare decision-making, such as the designation of Health Care Surrogates and other advance directives. Some of these include:

• To appoint a Medical Power of Attorney in Florida, the principal must be mentally capable of making informed decisions.
• The agent must understand their fiduciary duty and accept that they must act in the principal's best interest concerning their medical care.
• The principal must not be influenced or pressured while designating an agent.
• The principal must understand the implications of designating a Medical Power of Attorney and be able to make their own decisions.
• The principal must record the appointment in writing and sign it before two adult witnesses unconnected by marriage or blood.
• Alternatively, they have to sign the document and get their signature notarized.

Why Would You Need a Medical Power of Attorney in Florida?

Medical Power of Attorney or Designation of Health Care Surrogate enables Florida residents to name an agent to make healthcare judgments on their behalf if they experience a medical emergency that prevents them from expressing their intentions to healthcare providers.

Establishing a Medical Power of Attorney or Designation of Health Care Surrogate is particularly beneficial for individuals working in industries with a heightened risk of occupational accidents, such as construction, manufacturing, and transportation. It empowers a designated surrogate to promptly make critical healthcare decisions in emergencies where the principal is incapacitated and unable to communicate their wishes. This streamlined decision-making process ensures that the principal receives timely and appropriate medical care.

The benefits of a Medical Power of Attorney in Florida include:

• A Medical Power of Attorney in Florida ensures that the principal does not lose their fundamental right to choose issues related to their health as a result of incapacitation.
• It identifies an individual to make timely and informed decisions in trust on behalf of the principal, avoiding ambiguity which could delay treatment in emergencies.
• It ensures the principal's voice is heard and treatments are in line with their preferences.
• It enables personalized care, allowing the principal to specify treatment preferences in advance.
• It protects the principal and agent legally, preventing disputes and clarifying decision-making authority.

The risks of not appointing a Medical Power of Attorney include:

• Without a designated Medical Power of Attorney, the principal runs the risk of delayed access to healthcare as no one is authorized to make medical decisions on their behalf in emergencies or if they suddenly become incapacitated.
• The principal may be denied the right to voice their opinions on their medical care, possibly leading to treatment they would have opposed.
• Without a health care proxy, the challenge of making medical decisions can lead to disputes within the family, as family members might have conflicting opinions.
• Disputes arising from medical care received may require court intervention where no medical Power of Attorney is in place.
• Under Section 765.401, this situation could result in the court appointing a guardian or conservator.
• The principal risks having a court-appointed professional who may not truly reflect their wishes, thinking, or voice to make medical decisions on their behalf.

When does your Medical POA take effect in Florida?

In Florida, a Medical Power of Attorney or Designation of Health Care Surrogate becomes legally effective when all necessary signatures and witnesses are obtained. However, the designated surrogate's authority to make healthcare decisions on behalf of the principal commences only upon a determination of incapacity. This determination must be made in writing by the principal's attending physician or another qualified medical practitioner.

Under Florida Statutes section 765.202(2), a designation of Health Care Surrogate generally remains in effect until:

• The principal's death
• The principal revokes the Designation of Health Care Surrogate.
• The expiration date, as stipulated by the principal
• The surrogate resigns or is otherwise unable to act
• A court removes the surrogate

Under Florida Statutes, a principal may establish a specific commencement and termination date for a medical Power of Attorney or Designation of Health Care Surrogate. The document must explicitly articulate the principal's intent regarding the effective period for the Power of Attorney. The following are considerations when establishing these dates:

• The designation of Health Care Surrogate may become active immediately upon execution, providing the agent with authority should the principal unexpectedly become incapacitated.
• The designation delays the agent's authority until a specific triggering event occurs. This is typically a determination of incapacity made by one or more licensed physicians as specified in the document.
• The principal may stipulate a termination date after which the Power of Attorney expires. This is common for situations like anticipated surgeries or extended travel.
• In the absence of a specific termination date, the Power of Attorney generally remains in effect until the principal revokes it in writing or the principal passes away.

Despite the specified duration of the Medical Power of Attorney or Designation of Health Care Surrogate, its effective period is governed by the following conditions:

• A principal may revoke a Medical Power of Attorney or Designation of Health Care Surrogate at any time while they possess the capacity to understand and communicate decisions about their healthcare. Revocation may be expressed orally or in writing to the agent or healthcare provider.
• Unless otherwise specified, the agent's authority typically continues beyond a designated expiration date if the principal is deemed incapacitated at that time. The determination of incapacity must be made by one or more qualified healthcare professionals in accordance with state law.
• A designation of Health Care Surrogate terminates automatically upon the death of the principal.
• Certain events may warrant premature termination of a designation of Health Care Surrogate, even if they do not automatically end the agency relationship. These include a significant breakdown in the relationship between the principal and agent or evidence of the agent's unsuitability, such as neglect or abuse of the principal.

How to Get Medical Power of Attorney in Florida

Florida Statutes provide a legal framework for establishing a Medical Power of Attorney or Designation of Health Care Surrogate. Both the principal and the agent must be legally competent adults possessing sound mental capacity. This implies the ability to comprehend the nature and implications of the Designation of Health Care Surrogate. The Designation of Health Care Surrogate must be a written document. Florida provides a statutory form for this purpose, though it is not mandatory. Moreover, the principal must sign the document in the presence of two adult witnesses. At least one witness cannot be the agent, a spouse of the principal, or a blood relative of the principal. While not a statutory requirement, notarizing the document adds an extra layer of protection.

While Florida law doesn't require an attorney to create a designation of Health Care Surrogate, it is strongly recommended as they are trained to ensure that all requirements are covered. A designation of Health Care Surrogate gives someone else the power to make important medical decisions on behalf of the principal, so seeking legal advice ensures their wishes are protected. Costs for drafting a designation of Health Care Surrogate in Florida vary. Attorneys generally charge at least $200, and this may increase based on the document's complexity, their expertise, and their location. Additional expenses might include notary fees, consultation fees, and potential travel costs.

For Florida principals who need to create a designation of Health Care Surrogate, there are several resources available to guide them through the process. Some of these include:

• Some websites offer free templates and guidance for preparing a designation for a Health Care Surrogate. Principals can choose a website that specifically provides Florida-compliant documents.
• An attorney can create a designation of Health Care Surrogate that perfectly matches their needs. An attorney will also ensure their document is legally sound and follows all Florida regulations.
• The state of Florida provides a free sample form to help principals create a legally binding medical Power of Attorney. They can find it online.
• Some Florida communities offer free legal clinics where principals can get assistance with basic legal documents, including a designation of Health Care Surrogate.

How to Write Medical Power of Attorney in Florida

A Medical Power of Attorney or Designation of Health Care Surrogate executed in Florida must adhere to the dictates of Florida Statutes Chapter 765 to ensure its legal validity. This statute provides a statutory form that serves as a template for drafting a legally compliant Medical Power of Attorney. To be legally enforceable, a designation of Health Care Surrogate in Florida must include the following:

• The full name, address, and other identifying information of the principal.
• The full name, address, and other identifying information of the agent.
• The date on which the designation of Health Care Surrogate becomes effective. This may be immediate or contingent upon a future event like the principal's incapacitation.
• A clear indication of the healthcare decisions the agent is empowered to make.
• The principal's signature and the signatures of two competent adult witnesses. At least one witness cannot be the principal's spouse or blood relative.
• The document must be notarized by a Florida Notary Public.

Once a medical power of attorney or designation of Health Care Surrogate is completed, the principal should provide copies of the document to:

• The designated health care surrogate or agent.
• Their primary healthcare providers.
• Any hospitals or medical facilities where they regularly receive care.
• Any relevant family members or trusted individuals.

The principal should retain the original executed document in a secure location that is readily accessible in case of need. While not mandatory, a principal may file a Health Care Surrogate designation with the Florida Department of Health. This can help healthcare providers quickly verify the document's validity.

How often Must I Update my Medical power of attorney?

Florida Statutes Chapter 765, governing Health Care Advance Directives, does not impose a mandatory update interval for a Medical Power of Attorney. A principal may modify or revoke their Medical Power of Attorney at any time, provided they retain the mental capacity to make such decisions.

As a best practice, reviewing a Medical Power of Attorney every 3-5 years or whenever major life changes occur, such as marriage, divorce, or serious medical diagnoses is advisable. If changes are needed, the principal can either directly amend the existing document or revoke it and execute a new one.

Here are circumstances that might require updating the designation of Health Care Surrogate:

• Significant life events affecting the principal may warrant a change in surrogate. This includes marriage, divorce, and conflict between the principal and the surrogate.
• If the health care surrogate originally designated predeceases the principal, becomes mentally or physically incapacitated, or is otherwise unable or unwilling to fulfill their duties, a new surrogate should be designated.
• After moving to another state, the principal should consider updating the Designation of Health Care Surrogate to reflect the laws and potential medical providers of their new state of residence.
• If the principal loses trust in the surrogate's judgment or ability to advocate for their wishes, a new Designation of Health Care Surrogate should be executed.
• If the healthcare surrogate becomes incarcerated or is under investigation for actions potentially adverse to the principal's interests, it may be prudent to designate a new surrogate.

Regularly reviewing and updating the designation of Health Care Surrogate is vital to ensure it accurately aligns with the principal’s current medical needs and wishes. Significant changes in health status may necessitate more frequent modifications. Florida Statutes Chapter 765 governs the creation and execution of Health Care Surrogate designations.

Any changes in the law may require a revision of the document. When uncertain about the need for updates to their designation of Health Care Surrogate, the principal should always consult with a qualified Florida attorney. An attorney can assess their specific circumstances and provide tailored guidance.

Who Should be Selected as the Agent for this type of Power of Attorney?

According to Florida Statutes sections 765.202 and 765.101(13), selecting a healthcare surrogate is a critical decision. A principal must select someone they trust implicitly to carry out their wishes regarding medical care. The health care surrogate has a fiduciary duty to make decisions in the principal's best interests, by the principal's known desires regarding health care, and as guided by any written advance directives.

Moreover, the surrogate must place the principal's healthcare wishes and preferences above their own personal beliefs or potential conflicts of interest. They should be capable of understanding complex medical information, weighing options, and making informed decisions about the principal's care, even in emotionally difficult situations.

Who Can Be an Agent?

Florida law outlines specific requirements and considerations when designating a healthcare surrogate. Under Florida Statutes section 765.101, the surrogate must be 18 years or older. An emancipated minor may also be designated. The principal must choose someone they trust unconditionally, as they will have the authority to make vital medical decisions on their behalf. Section 765.202 states that should they appoint a healthcare provider as their surrogate, the surrogate cannot simultaneously serve as their physician.

Given the broad authority granted to a health care surrogate, the principal must select a person of the utmost integrity and reliability, as the principal's life may depend on their actions.

Can there be More than One Agent?

Florida law allows the principal to designate two or more individuals to serve as co-agents within a Health Care Surrogate Designation. The Health Care Surrogate Designation should stipulate whether co-agents are required to make medical decisions jointly or if they are authorized to act independently. Without specific instructions within the designation, Florida law presumes independent decision-making authority for each co-agent.

The advantages of designating more than one agent are:

• Designating multiple agents within the designation of Health Care Surrogate ensures that if the primary agent is unavailable, a trusted alternate is empowered to make timely healthcare decisions on their behalf.
• Multiple agents can offer a broader range of experience and perspectives.
• Having multiple agents designated can help facilitate discussion and promote decision-making that aligns with the principal’s best interests.

The disadvantages of designating more than one agent are:

• Designating multiple agents increases the risk of disagreements about medical choices. This can lead to delays in obtaining necessary treatment, potentially harming the principal. Family dynamics may further complicate matters, leading to strained relationships.
• Should agents disagree, it can create an impasse that significantly hinders timely and effective medical care.
• In intractable disputes between multiple agents, Florida courts may need to intervene to resolve the conflict and appoint a surrogate. This adds legal costs and delays, potentially going against the principal's wishes.

When considering multiple agents for their designation of Health Care Surrogate, principals should carefully address the following procedures:

• Unless otherwise specified in the designation of Health Care Surrogate, multiple agents possess concurrent authority. Based on section 765.202(5), each agent may independently exercise decision-making power regarding the principal's health care.
• Principals may designate agents to act in a sequence. The primary agent should make decisions unless unavailable or unwilling.
• Should the principal decide to designate a couple, they should also name someone else as a backup.
• Principals should determine whether to grant agents broad authority over all healthcare decisions or limit their power to specific treatments or procedures.

What Decision-making power does the Medical Power of Attorney grant the Agent?

Under Florida law (Florida Statutes section 765.202), a Medical Power of Attorney allows a principal to designate a surrogate to make medical decisions on their behalf should they become incapacitated. Incapacitation, as defined by Florida law, means the principal is unable to understand the nature and consequences of health care decisions and, therefore, is unable to communicate informed consent.

Decisions that a designated surrogate may be empowered to make under a Florida designation of Health Care Surrogate include:

• Reviewing and obtaining copies of the principal's medical records, including those protected by the Health Insurance Portability and Accountability Act (HIPAA), to make informed healthcare decisions on the principal's behalf.
• Granting, withholding, or withdrawing consent for medical procedures, surgeries, diagnostic tests, medications, and life-sustaining treatments. The healthcare surrogate's decisions would be guided by the principal's known wishes or best interests.
• Communicating with physicians, nurses, specialists, and other healthcare providers regarding the principal's diagnoses and proposed treatment options.
• Authorizing the principal's admission to, discharge from, or transfer between hospitals, assisted living facilities, nursing homes, or other healthcare institutions.

The principal's designated agent is not permitted to authorize the following medical treatments and procedures unless specifically granted within the Medical Power of Attorney:

• Under Florida law, the decision to terminate a pregnancy ultimately lies with the pregnant individual. A healthcare surrogate or proxy cannot make this decision unless the principal has included a very specific provision within their Medical Power of Attorney and there is clear and convincing evidence of the principal's wishes.
• Florida law respects an individual's right to refuse life-prolonging procedures. Specific instructions and requirements about these measures should be detailed in the principal's Medical Power of Attorney.
• A healthcare surrogate or proxy cannot initiate mental health treatments without meeting the legal standards for involuntary examination.

Can the Medical Power of Attorney be revoked?

In Florida, a principal who has executed a Medical Power of Attorney retains the right to revoke or amend it at any time, provided they are in sound mind. Under Florida Statutes section 765.104(1), a principal may revoke their power of attorney through a written and signed statement expressing their intent to revoke or by executing a subsequent power of attorney that supersedes the prior one. They can do so in the following ways:

• Drafting a signed and dated written statement explicitly indicating their intent to revoke the power of attorney.
• Executing a new power of attorney that supersedes the previous one.
• Providing notice of the revocation to the agent who had authority under the previous Medical Power of Attorney.
• Physical destruction of the Medical Power of Attorney document.
• In Florida, a divorce decree automatically revokes any designation of a former spouse as an agent under a Medical Power of Attorney.

How Do I Revoke a Medical Power of Attorney in Florida?

Changes in life circumstances may require the revocation of a previously executed Medical Power of Attorney (POA). Follow these steps for revoking a medical POA:

• Prepare a notice of revocation of the Power of Attorney document.
• Execute the revocation document in the presence of a notary public. Florida law requires notarization to ensure the document's validity.
• Deliver a copy of the notarized revocation to the former agent, healthcare providers, and other relevant third parties who interacted with the agent under the POA.
• If the original POA was recorded with the clerk of court in the county where you reside, it's advisable to record the notice of revocation in the same manner.
• To prevent confusion, physically destroy all copies of the original Power of Attorney document.

Under Florida law, third parties are under no obligation to honor an updated or revoked Medical Power of Attorney until they have received actual notice of the change. This underscores the importance of ensuring proper revocation. The revocation must be in writing and express the principal's clear intent, and the principal must take steps to notify any individuals or institutions relying on the previous Medical Power of Attorney.