If I become temporarily incapacitated and enter an hospital, but I have not executed an advance directive or nominated a health care surrogate, who makes decisions on my behalf?

The answer is the person designated by the Florida legislature as the “proxy.”  Listed below is the Florida Statute 765.401(1).  Please note this is not an exact quote of the statute as I have made some minor edits to make this more readable, and I have added some points to consider in italics. 

(1) If an incapacitated or developmentally disabled patient has not executed an advance directive, or designated a surrogate to execute an advance directive, or the designated or alternate surrogate is no longer available to make health care decisions then health care decisions may be made for the patient by any of the following individuals, in the following order of priority, if no individual in a prior class is reasonably available, willing, or competent to act:

   (a) The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability as defined in Florida Statute 393.063 who has been authorized to consent to medical treatment, if such guardian has previously been appointed; however, this paragraph shall not be construed to require such appointment before a treatment decision can be made under this subsection;

   (b) The patient's spouse [ LLG Note: Is the spouse from a subsequent marriage when you have children of a prior marriage?  If so an advance directive is a good idea to prevent fights over dad or mom’s care.  If there is no surrogate and the second spouse starts to make decisions, the children can always petition for a guardianship under paragraph (a) above, and if there is no surrogate then, the guardian would make the decisions.]

   (c) An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation [LLG Note:  Again, this is a good reason for an advance directive.  Do your children get along?  If the answer is no then this is not a good time for a fight over mom or dad’s care in a guardianship court proceeding.];

   (d) A parent of the patient;

   (e) The adult sibling of the patient or, if the patient has more than one sibling, a majority of the adult siblings who are reasonably available for consultation;

   (f) An adult relative of the patient who has exhibited special care and concern for the patient and who has maintained regular contact with the patient and who is familiar with the patient's activities, health, and religious or moral beliefs; or

   (g) A close friend of the patient  [ LLG Note:  Another reason for a health care surrogate; do you really want the hospital to interpret this statute and decide who “a close friend” is? ]

   (h) A clinical social worker licensed pursuant to chapter 491, or who is a graduate of a court-approved guardianship program. Such a proxy must be selected by the provider's bioethics committee and must not be employed by the provider. If the provider does not have a bioethics committee, then such a proxy may be chosen through an arrangement with the bioethics committee of another provider. The proxy will be notified that, upon request, the provider shall make available a second physician, not involved in the patient's care to assist the proxy in evaluating treatment. Decisions to withhold or withdraw life-prolonging procedures will be reviewed by the facility's bioethics committee. Documentation of efforts to locate proxies from prior classes must be recorded in the patient record.  [LLG Note:  If you haven’t been convinced to designate a health care surrogate to make health care decisions for you yet, then this paragraph should do it.]

For more information Contact Matthew A. Linde, P.A. today.