Change in Florida Health Care Surrogate Law: What It Means for You

Florida Health Care Surrogate Statutes have changed. The creation of Florida Statute 765.2035, and the changes to Florida Statute 765.202, became effective October 1, 2015. The change is very important for those with minor children. However, even those who do not have minor children may be impacted and should determine whether any action is needed. Below I provide the facts and recommendations:

If you have minor children

 

Florida has never had a law specifically authorizing the parent of a minor child to designate a competent adult to serve as the minor's health care decision maker. Obviously many parents want to name someone for this job, should the parent be unavailable. For this purpose, in the past The Karp Law Firm drafted a document in which our clients empowered a health care decision-maker for their minor child. Without going into the finer legal points, we believe that legal instrument has a firm basis in common law - but as noted above, no specific statutory authority. 

Now, Statute 765.2035 has been created, giving parents of a minor child the specific authority to create a written instrument called a Designation of a Health Care Surrogate for a Minor. If you are the parent or guardian of a minor child, you will want to create such a document in order to protect your child. Contact The Karp Law Firm for assistance.

  If you do not have minor children

 

Florida Health Care Surrogate Statute 765.202 provides one of two methods by which a Florida resident may empower someone to make health care decisions for him/her should incapacity strike. (The other method, the Health Care Power of Attorney, is the method The Karp Law Firm uses for clients.) Whether you are affected by the changes in the surrogate law will be determined by what type of documents you presently have, if any, as well as when they were drafted.

 

Until now, the Florida Health Care Surrogate statute allowed you to empower your health care surrogate to make decisions only if you were determined to be incapacitated. Additionally, the statute did not provide a legal basis for your surrogate to get your HIIPAA-privileged information from your health care providers.

Now, the statute has been modified in two ways:

• First, you can authorize your surrogate to make health care decisions on your behalf even if no determination of incapacity has been made.

• Second, you can authorize your surrogate to have immediate access to your medical information that would otherwise be confidential under federal HIPAA law.

Actions to be considered now:

• Clients of The Karp Law Firm for whom we prepared a Health Care Power of Attorney in 2004 or later: You need not take any steps. Here is why: First, it is unlikely that you would want to authorize a surrogate to make your medical decisions prior to your incapacity. Second, if you executed the Health Care Power of Attorney we created for you in 2004 or later, it has a HIPAA waiver incorporated into it that gives your agent immediate authority to receive your confidential medical information. Thus, you will gain nothing from creating a Health Care Surrogate - unless for some reason you want to give immediate authority to someone to make your health care decisions.

• Clients of our law firm for whom we prepared a Health Care Power of Attorney prior to 2004, and who have not had their document updated since then:  Changes may need to be made to ensure your Health Care Power of Attorney complies with HIPAA laws. Contact us for assistance.

• Individuals who are NOT clients of the Karp Law Firm:  Our firm can assist you. You should have your documents reviewed to ensure that they allow your decision-makers to have immediate access to HIPAA-privileged information. Contact us here.

 

Read more about the Florida Health Care Power of Attorney, Health Care Surrogate, Living Wills and other advance directives here.  

Read the Florida Health Care Surrogate Statute here.