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Florida Health Care Surrogate law changes

10-1-2015 - Florida Health Care Surrogate Statutes have changed. The creation of Florida Statute 765.2035, and changes to Florida Statute 765.202, became effective October 1, 2015. This legal update explains these changes.

 

Why the creation of Statute 765.2035 impacts you if you have minor children, and what steps you may wish to take now

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, most of our clients with young children wish to plan for such an event, should the parent be incapacitated, work long hours with limited availability, travel extensively, etc. To address their legal needs, our office had previously drafted a document in which the parent authorizes a decision-maker for the child. Without going into the finer legal points, that instrument, we believe, has a firm basis in common law - but 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 our office and we can assist you.   

 

Changes to Florida Statute 765.202: Who should take action?

Florida 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 our office used for clients - more on that below.) Until now, the 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 medical 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.

What you need to do based on the change in the Florida Statute:

  • Clients of our law firm for whom we have prepared a Health Care Power of Attorney in 2004 or later need not take any steps. Here is why: First, it is unlikely that you will want to authorize a surrogate to make your medical decisions prior to your incapacity being established. 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, there is nothing to be gained from creating a Health Care Surrogate, unless 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 documents updated, should speak to us to review their health care document, in order to ensure it complies with HIPAA laws.
  • Individuals who are NOT clients of the Karp Law Firm should have their documents reviewed to ensure that their health care documents allow their decision-makers to have immediate access to HIPAA-privileged information.

 

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

Read the Florida Statutes here

 

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