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Who Will Make Your Decisions?

Brevard Will                                                       Brevard Trust

Murphy's Law Offices, P.A.

When a person becomes incapacitated and is no longer able to give informed consent, health care providers must look to someone else to make medical decisions for that person.  In Florida, the law provides for two options: a health care surrogate or a health care proxy.  A health care surrogate is a person named in advance to make the health care decisions for the person.  A health care proxy is a person who volunteers to make medical decisions for the person.

A Health Care Surrogate grants a person you choose the power to make important medical decisions for you, if you become incapacitated.  However, you must sign the Designation of Health Care Surrogate document before you become incapacitated.  Once incapacitated a person cannot grant that power any longer.  Incapacity occurs when a physician designates that the person can longer give informed consent.  Once that occurs, the health care surrogate takes over making the medical decisions for the incapacitated person.

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But what happens if there is no Designation of Health Care Surrogate?  A volunteer under the Health Care Proxy statute is the only option. That statute provides a priority of persons to make decisions on behalf of the incapacitated individual, as follows:

Judicially appointed guardian of the person;
Patient's spouse;
Adult child of the patient, or, if more than one, a majority of the adult children;
Adult sibling of the patient, or, if more than one, a majority of the adult siblings;
Adult relative who has shown special care and concern and maintained regular contact;
Close friend of the patient;
Social worker selected by bioethics committee of the health care provider.

Your health care decision maker must use "substituted judgment".  "Substituted judgment" means if they know your desires, then they must follow them.  When you complete the Designation of Health Care Surrogate you should also inform the surrogate what your future medical wishes may be.  If your wishes are unknown, the decision maker must do what is in the "best interests" of the patient.


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The bottom line here is that you are free to designate whomever you want as your health care (decision maker) surrogate.  Absent a Designation of Health Care Surrogate, the Health Care Proxy statute will nominate a health care decision maker for you.  Keep in mind, however, that this volunteer might not be the person that you want making your health care decisions nor the best person to make your medical decisions.  To ensure that your wishes are carried out, it is best to a complete a Designation of Health Care Surrogate naming both a primary and alternate surrogate.


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