A Brief Introduction to Health Care Surrogates.

What is a Health Care Surrogate? A Health Care Surrogate is a person designated by someone while they are of sound mind to make health care decisions on his or her behalf in case they become incapacitated. A health care surrogate has become more important since the Health Insurance Portability and Accountability Act of 1996 (HIPAA) became effective to ensure the privacy of patients. As a result of this Act, many hospitals and health care providers will refuse to disclose or discuss any healthcare treatments or medications, contest bills, etc. even with family members or live-in partners if they were not previously designated by the patient.

What is the difference between a Health Care Surrogate and Durable Power of Attorney? The powers of attorney documents are discussed under Florida Statute 709; whereas health care surrogates are discussed under Florida Statute §§765.201 – 765.205. While a power of attorney grants the agent or attorney-in-fact general powers, a health care surrogate document is a written document designating a surrogate to make health care decisions for an individual or receive health information on behalf of the individual, or both. The Florida statutes require the document to be signed by the designating individual in the presence of two subscribing adult witnesses, at least one of whom is neither their spouse nor a blood relative.

Can an individual have more than Health Care Surrogate? Normally, we suggest that the individual nominate one person as his or her primary health care surrogate and one alternate surrogate. Similar to the President of the United States or Ms. America, if the primary health care surrogate is unable or chooses not to accept the responsibility of becoming the individual’s decision- maker, then the replacement has already been named. This usually eliminates the need for frequent re-writing of the document designating the surrogate, especially at inopportune times.

How does an individual revoke an appointment of a Health Care Surrogate? A n appointment of a Health Care Surrogate may be revoked in writing, by physically canceling or destroying the original document, by an oral expression of one’s intent to revoke, or by executing a new materially different document. Normally, the revocation language is included in any subsequent documents.

For assistance in drafting your Health Care Surrogate documents, please contact the attorneys at Fletcher & Phillips at 904-353-7733.

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