What Is a Health Care Surrogate in Florida?
A Florida health care surrogate designation is a written document naming the person who makes medical decisions for you when you can’t make them yourself. It takes effect while you are alive. Your will does not — a will only operates after death, and only for assets passing through probate.
That gap is the whole problem. Most Florida families who believe they are “covered” have a will and nothing else, which means they have planned carefully for the day they die and not at all for the far more likely day they end up in a hospital unable to speak.
Here is what actually governs that situation in Florida.
I do this type of work because I saw firsthand what happens to families who don’t have a plan. I had a meeting with a potential client today, and it was a complete disaster because her grandfather and father didn’t have simple wills.
Will vs. advance directive — what each one can do
Swipe or scroll sideways to compare all columns.
| Comparison | Last Will and Testament | Advance Directives |
|---|---|---|
| When it operates | Only after death | While you are alive and incapacitated |
| What it controls | Asset distribution through probate | Medical decisions and access to medical records |
| Who it names | Personal representative; guardians for minor children | Health care surrogate |
| Can it authorize medical decisions? | No | Yes |
| Can it let someone talk to your doctors? | No | Yes |
You cannot name a medical decision-maker in your will. It is a common belief, and it is simply not how the documents work — they are separate instruments governed by separate chapters of Florida law.
What “Advance Directives” Actually Means
An advance directive is an umbrella term. In Florida practice, it generally covers three things, and they are usually combined into a single document:
- Health care surrogate designation — names the person (Fla. Stat. §765.202)
- Living will — states your own end-of-life wishes in writing (Fla. Stat. §765.302)
- HIPAA release — authorizes access to your medical information
Some attorneys prepare these as three separate documents. There is no legal advantage to it, and a separate document is one more thing to locate in an emergency. They are used at the same time, by the same person, in the same room.
One situation where separating them makes sense is if you want one person making medical decisions and a different person able to talk to your doctors and see your records. A standalone HIPAA release handles that.
The Health Care Surrogate Designation
Choosing the right person
You can name whomever you want. You are not restricted to a spouse or a family member, and this matters more than people expect:
- Married, but you would rather someone else decide. You can name someone else. The designation overrides the default.
- Unmarried with a long-term partner. Without a designation, your partner has no standing in Florida’s default hierarchy — your parents or adult children do.
- In a difficult marriage, or a pending dissolution. If you have filed for divorce and have no health care surrogate designation, your spouse is still first in line under Florida law. This is one of the most urgent reasons to sign one.
The practical test is not “who would be offended” but who actually knows what you want, can absorb difficult information under pressure, and will speak clearly to a physician on your behalf.
Tell that person what your wishes are. A surrogate with legal authority and no idea what you would have wanted is only a marginal improvement over no surrogate at all.
When does it take effect? (This is the part most people skip)
Florida lets you choose, and the choice is made by initialing boxes in the document. There are two separate switches:
Access to your medical information. Effective immediately, or only upon a determination of incapacity.
Authority to make medical decisions. Effective immediately, or only upon a determination of incapacity.
Most people make the medical-information half effective right away, and stop there. But the decision-making half is worth real thought, because of a scenario that comes up constantly: the fuzzy period.
Someone is not incapacitated. No physician would sign anything saying they were. But they are not fully themselves either — they are making decisions their family can see are wrong, and nobody has legal standing to help. Making the designation immediately exercisable lets a trusted surrogate step in and assist during that window, well before any formal incapacity determination.
Florida law is explicit that this does not cost you control. As long as you have capacity, your own decision overrides your surrogate’s. You are adding a helper, not surrendering authority.
Under Fla. Stat. §765.204, incapacity is determined by the physician with primary responsibility for your care, documented in your medical record. If that physician has any question about the conclusion, a second physician must evaluate as well.
Other authorities you can grant
The document includes specific powers you initial individually. Experimental treatments is the one that gives people pause, and it is worth understanding: initialing it does not mean you want experimental treatment. It means your surrogate has the authority to consider it if the situation arises. A great deal of modern medicine falls under that heading.
How it has to be signed
Florida’s execution rules differ from document to document, which is a genuine trap. For a health care surrogate designation:
- Two adult subscribing witnesses, with you signing in their presence
- At least one witness must be neither your spouse nor a blood relative
- The person you are naming as surrogate cannot serve as a witness
- No notary required
That last point surprises people. The only estate planning document Florida requires to be notarized is the durable power of attorney. (A will needs two witnesses to be valid; notarization is what makes it self-proving, which is separate.)
Notarizing a health care surrogate anyway does no harm, and many firms do it as a matter of course simply because all the documents get signed in one sitting.
The Living Will: Your Wishes, in Writing
A living will is the document people mean when they say “pull the plug.” It states, in advance and in your own words, what you want if you are being kept alive by machines and are not going to recover.
It applies in a narrow set of circumstances defined by Florida law — when you have a terminal condition, an end-stage condition, or are in a persistent vegetative state, and physicians have determined there is no reasonable medical probability of recovery. If you are expected to recover, this document is not part of the conversation. You stay on the machines.
A properly executed Florida living will creates a rebuttable presumption of clear and convincing evidence of your wishes. In plain terms: it is hard to override.
Execution requirements mirror the surrogate designation — two witnesses, at least one of whom is neither your spouse nor a blood relative. No notary required.
Do you need one if you have a surrogate?
No. If you name a health care surrogate and skip the living will, your surrogate makes those decisions instead. Both approaches are valid, and the right answer depends on you.
Why people choose the living will: it puts your wishes on the record, and — this is the part that matters most — it takes an enormous weight off the person you named. Your surrogate is no longer making the decision to remove you from life support. They are carrying out yours.
Why some people decline it: they cannot anticipate every circumstance, and they would rather their surrogate apply judgment to the actual situation than follow instructions written years earlier.
Either is a legitimate choice. The mistake is making it by default instead of making it deliberately.
A note on religious language
Families sometimes want detailed religious or philosophical language written into these documents. Be careful here. Hospitals implement what is clear and enforceable, and language they cannot operationalize can create ambiguity at exactly the moment ambiguity is most damaging. The intent is usually better served by naming a surrogate who shares your beliefs and knows your wishes.
Living Will vs. DNR: These Are Not the Same Document
This is the most common and most consequential confusion in this entire area.
A DNR — in Florida, a Do Not Resuscitate Order (DNRO) — means no one may attempt to resuscitate you if you stop breathing or your heart stops. Not the paramedics, not the hospital. It applies regardless of whether you would have survived.
A DNRO is for someone who is seriously ill or very near the end of life and has decided that when the moment comes, it is their time.
A living will applies later in the sequence entirely. You have already been resuscitated. You are on machines. Physicians have determined you are not going to recover. Only then does the living will speak.
Most people want to be resuscitated. A DNRO is a deliberate, specific choice — not a general statement about end-of-life preferences.
How a Florida DNRO works
This one does not come from a law office. It is a medical order, governed by Fla. Stat. §401.45 and Rule 64J-2.018 of the Florida Administrative Code:
- It is DH Form 1896, issued by the Florida Department of Health
- It must be printed on yellow paper — any shade, but yellow, or it is not honored
- It must be signed by the patient (or the patient’s representative) and by a Florida licensed physician, osteopathic physician, autonomous-practice APRN, or physician assistant
- Photocopies are valid if the signatures reproduce accurately and the copy is on a yellow background
- The form includes a wallet-sized duplicate you can detach and carry
If a DNRO is right for your situation, it is a conversation with your physician, not your attorney.
The HIPAA Release
HIPAA is the federal privacy law protecting your medical information. Without an authorization, the people closest to you can be told nothing.
The form you sign at a doctor’s office covers that office. That hospital. That practice. It does not travel. If you have an emergency somewhere else — another county, another state, a hospital you have never been to — that form does nothing for you.
Your own HIPAA release, usually built into the health care surrogate designation, works wherever you end up. Which matters, because you do not get to choose where you end up.
What Happens in Florida If You Have No Health Care Surrogate
Florida has a default. Most people assume it means “my spouse decides,” and it is considerably messier than that.
Under Fla. Stat. §765.401, if no surrogate has been designated, health care decisions fall to the following, in order — moving to the next class only when no one in the prior class is reasonably available, willing, and competent to act:
- A judicially appointed guardian with authority to consent to medical treatment
- The spouse
- Adult children — or, if there is more than one, a majority of the adult children who are reasonably available
- A parent
- Adult siblings — or a majority of them, if more than one
- An adult relative who has maintained regular contact and shown special care and concern
- A close friend
- A licensed clinical social worker selected by the provider’s bioethics committee
Two things to notice.
A court-appointed guardian outranks your spouse. That is the structure guardianship proceedings create, and it is the outcome these documents exist to prevent.
“A majority of adult children” is not a solution — it is a negotiation. If you have three adult children who do not agree, someone has to assemble a majority while a physician waits for an answer. Siblings who have not agreed on anything in twenty years are not going to start in a hospital corridor at two in the morning.
When the people in the same class genuinely deadlock, the path forward runs through court. Court is slow, court is expensive, and it arrives during what is already the worst week of the family’s life.
If You Have a Child Who Just Turned 18
The day your child turns 18 in Florida, you lose legal authority over their medical care. Not gradually. That day.
If your 18-year-old is hospitalized, the hospital is not obligated to speak with you — not about treatment, not about their condition, not at all. Parents discover this at the worst possible moment, frequently by phone, frequently from out of state.
Every 18-year-old should sign:
- A health care surrogate designation with HIPAA release, naming a parent
- A durable power of attorney for financial matters
A living will is usually not appropriate at that age. Eighteen-year-olds have not thought about end-of-life care in any meaningful way, and a document signed without genuine understanding is not worth having.
One thing to check if your child is leaving Florida for college: age of majority is 18 in most states, but not all — it is 19 in Alabama and Nebraska, and 21 in Mississippi for certain purposes. Signing Florida documents before they leave is the simple version.
When my daughter turned 18 and was heading to college in Alabama, she signed her health care surrogate designation with a HIPAA release and a durable power of attorney. She did not sign a living will since at 18, that document doesn’t mean anything yet.
The Companion Document: Durable Power of Attorney
A health care surrogate handles medical decisions. It does nothing for money — and incapacity creates financial problems immediately.
A question from the webinar makes the point better than any explanation: one spouse is on life support, and the other needs to sell jointly owned property to cover the bills. Can they?
It depends on the asset. Joint bank accounts — either spouse generally has full control. Real estate — no. Even jointly owned Florida real property generally cannot be sold or mortgaged without both signatures. One spouse alone cannot do it.
Without a durable power of attorney, the route to that signature is guardianship court.
Three things to know about Florida powers of attorney:
Execution is different from every other document. A Florida power of attorney must be signed by the principal, witnessed by two subscribing witnesses, and acknowledged before a notary. It is the only one that requires all three.
It is effective the moment it is signed. Florida does not permit “springing” powers of attorney that activate upon incapacity — a power of attorney stating it becomes effective at a future date or on a future contingency is ineffective. (Narrow exception: instruments executed before October 1, 2011 that were conditioned on incapacity can still be activated by a physician’s affidavit. If you moved to Florida with an older document, this is worth checking.)
It doesn’t reach anything titled in a trust. A power of attorney lets your agent act for you personally, but the moment an asset is retitled into a living trust, only the trustee has authority over it, not your agent. If your estate plan includes a trust, Why a Power of Attorney Isn’t So Powerful When It Comes to Trusts walks through where that authority actually sits.
Because it is effective on signing, a power of attorney should not be handed out casually. Which leads to the one distribution rule worth memorizing:
Give copies of your health care surrogate designation to everyone you named in it. It only works if the people who need it can produce it quickly. Do not distribute your other documents — especially your power of attorney, which is live from the moment you sign.
Your Three Options
Do nothing. Accept the default hierarchy, the possibility of family deadlock, and the risk of a guardianship proceeding.
Do it yourself online. This is frequently worse than having nothing, because it produces false confidence. Florida’s execution requirements differ document by document — witnesses here, notary there, disqualified witnesses in both — and a document executed incorrectly is a document that fails when it is needed. Worse, a form that does not actually reflect your wishes creates ambiguity, and ambiguity in a hospital is the specific outcome all of this is meant to prevent.
Work with an attorney. Whether that is our firm or another one, have these prepared and executed properly.
It is probably time for a review if:
- You have no health care surrogate designation at all
- Your documents are more than five years old
- You have had a recent health change or hospitalization
- You moved to Florida with documents prepared in another state
- Your family situation changed — marriage, divorce, a death, a child turning 18
Estate planning is not static. Documents signed and filed in a drawer stop reflecting reality, and the version that matters is the one in effect on the day something happens.
Every client leaves our office with a binder like this one, not just for looks. It holds your originals, extra copies for the people you named, and a plain-language summary of who has authority to do what, and when. And because these documents only work if they reflect your life, every client gets a free annual review, so the version in the binder stays the version you actually meant.
Frequently Asked Questions
What is a health care surrogate in Florida? A health care surrogate is the person you name in writing to make medical decisions for you if you become unable to make them yourself. The designation is governed by Fla. Stat. §765.202 and takes effect while you are alive.
Is a living will the same as a health care surrogate designation? No. A living will states your own end-of-life wishes in writing. A health care surrogate designation names a person to make decisions for you. They are often combined in one document but do different jobs.
Is a living will the same as a DNR? No. A Florida DNRO instructs that no resuscitation be attempted if you stop breathing. A living will applies after resuscitation, when you are on life support and physicians have determined you will not recover.
Does a health care surrogate designation have to be notarized in Florida? No. It requires two adult witnesses, at least one of whom is neither your spouse nor a blood relative. The person you name as surrogate cannot be a witness. The durable power of attorney is the only estate planning document Florida requires to be notarized.
Can my spouse make medical decisions for me automatically? Usually, but not always. A spouse is second in Florida’s default hierarchy — behind a court-appointed guardian. And if you have designated someone else as your health care surrogate, that designation controls.
Who makes medical decisions in Florida if I have no advance directive? Fla. Stat. §765.401 sets the order: judicially appointed guardian, spouse, adult children (a majority if more than one), parent, adult siblings, an adult relative with regular contact, a close friend, then a licensed clinical social worker chosen by the provider’s bioethics committee.
Does my will let someone make medical decisions for me? No. A will operates only after death and only for probate assets. It cannot grant any authority while you are alive.
Can I make my health care surrogate effective immediately? Yes. Florida allows you to make the surrogate’s authority to receive medical information, to make medical decisions, or both, exercisable immediately without a determination of incapacity. While you have capacity, your own decisions still control.
My child just turned 18 and is leaving for college. What do they need? A health care surrogate designation with a HIPAA release and a durable power of attorney. Once they turn 18, you have no automatic authority, and the hospital is not required to speak with you.
Watch the Full Webinar Replay
Advance directives raise a lot of “what if” questions that don’t fit neatly into an article. In this webinar, Samantha walks through real scenarios and answers live audience questions on choosing a health care surrogate, HIPAA releases, and living wills. If you’d rather watch than read, the full replay is below.
Talk Through Your Situation
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SJF Law Group is in Plantation, Florida, near Fort Lauderdale and central to Broward, Miami-Dade, and Palm Beach Counties. We work with clients throughout Florida: we review drafts by video conference, send final documents for you to sign, or you can sign in our office if you prefer to come in.
This article is educational and is not legal advice for your specific situation. Florida law changes, and one detail can change the right answer. Please consult an attorney regarding your circumstances.
