A Health Care Surrogate is a type of advance directive in which you authorize someone to make your health care decisions if you are unable to do so.
Like many of our clients, you may wish to name two people, perhaps two adult children, as co-surrogates. You trust both, they get along well, and both are willing to serve. Clients often tell us they do not want to show favoritism by naming one child and not the other.
Those feelings are understandable. Notwithstanding, under Florida’s health care law, you may name only ONE primary health care surrogate. (Of course, you may and should name an alternate surrogate to serve as backup, who will step in if the primate surrogate is unwilling, unable or reasonably unavailable to act.)
The Rationale Behind One Surrogate
The Florida law was designed to ensure that health care decisions can be made expeditiously, and without medical providers finding themselves in the middle of family disagreements over a patient’s care. While no doubt all your loved ones want what is best for you, disagreements can pop up if family members have different ideas about what is “best.”
For example, let’s say a decision has to be made about whether you undergo a certain surgery. One child may be all for it, focusing on its potential to improve your functionality. His sibling, no less concerned about you, may oppose it out of concern that an unsuccessful procedure could diminish your quality of life. Another example is if nursing home placement is being considered for you. One child may think that a facility offers the physical safety and professional care you need. Her sibling may object, thinking that what is more important is the greater psychological comfort and stability of remaining at home in familiar surroundings.
Steps To Encourage Family Consensus About Your Care
You can take steps that will minimize the likelihood of disagreements about your care.
- First, let your loved ones know you are naming one person as your surrogate (and another as backup) not because you think more highly of one, but because that is what the law requires.
- Second, even though only one person can serve as your primary surrogate, you should share your values and wishes about health care with everyone in your family. Tell them what you would want to happen under different circumstances. This will give everyone greater clarity about your desires and what you consider “best” for you.
- Last, encourage your surrogate to turn to other loved ones for support and feedback when a difficult decision must be made about your care. Toward that end, remember that you may execute a federal HIPAA release allowing as many people as you wish to receive your confidential medical information, even those people not legally authorized to make your decisions. This will keep everyone in the loop so no one feels shut out or ignored. Many people who consult with us have provided a HIPAA release for their surrogate, but neglected to authorize anyone else to access their medical information. If this is your situation, we recommend getting your documents revised to include everyone you wish to have your health information.
If You Do Not Have A Valid Health Care Surrogate
If you are incapacitated and cannot make your own medical decisions, and you do not have a valid health care surrogate, Florida Statute 765.401 applies. This statute outlines who can serve as your proxy decision makers. There is a hierarchy of who may serve, as follows:
- First, your guardian, if one has been appointed for you by the courts.
- Your spouse.
- Your adult child, or if you have multiple children, a majority of the adult children who can be reached for consultation.
- Your parent.
- Your adult siblings, and if there are multiple adult siblings, a majority who can be reached for consultation.
- Any of your adult relatives who has been in regular contact with you and is familiar with your activities, health, and moral or religious beliefs.
- Your close friend.
- A clinical social worker.
At The Karp Law Firm, we will assist you to establish advance care directives. A health care surrogate, with HIPAA releases for multiple parties, are key documents everyone needs. Contact us at (561) 625-1100 to schedule a consultation.
