Bill Text: FL S1224 | 2015 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Health Care Representatives
Spectrum: Slight Partisan Bill (? 2-1)
Status: (Introduced - Dead) 2015-04-23 - Laid on Table, companion bill(s) passed, see CS/CS/CS/HB 889 (Ch. 2015-153) [S1224 Detail]
Download: Florida-2015-S1224-Introduced.html
Bill Title: Health Care Representatives
Spectrum: Slight Partisan Bill (? 2-1)
Status: (Introduced - Dead) 2015-04-23 - Laid on Table, companion bill(s) passed, see CS/CS/CS/HB 889 (Ch. 2015-153) [S1224 Detail]
Download: Florida-2015-S1224-Introduced.html
Florida Senate - 2015 SB 1224
By Senator Joyner
19-00673-15 20151224__
1 A bill to be entitled
2 An act relating to health care representatives;
3 amending s. 743.0645, F.S.; conforming provisions to
4 changes made by the act; amending s. 765.101, F.S.;
5 defining terms for purposes of provisions relating to
6 health care advanced directives; revising definitions
7 to conform to changes made by the act; amending s.
8 765.102, F.S.; revising legislative intent to include
9 reference to surrogate authority that is not dependent
10 on a determination of incapacity; amending s. 765.104,
11 F.S.; conforming provisions to changes made by the
12 act; amending s. 765.105, F.S.; conforming provisions
13 to changes made by the act; providing an exception for
14 a patient who has designated a surrogate to make
15 health care decisions and receive health information
16 without a determination of incapacity being required;
17 amending ss. 765.1103 and 765.1105, F.S.; conforming
18 provisions to changes made by the act; amending s.
19 765.202, F.S.; revising provisions relating to the
20 designation of health care surrogates; amending s.
21 765.203, F.S.; revising the suggested form for
22 designation of a health care surrogate; creating s.
23 765.2035, F.S.; providing for the designation of
24 health care surrogates for minors; providing for
25 designation of an alternate surrogate; providing for
26 decisionmaking if neither the designated surrogate nor
27 the designated alternate surrogate is willing, able,
28 or reasonably available to make health care decisions
29 for the minor on behalf of the minor’s principal;
30 authorizing designation of a separate surrogate to
31 consent to mental health treatment for a minor;
32 providing that the health care surrogate authorized to
33 make health care decisions for a minor is also the
34 minor’s principal’s choice to make decisions regarding
35 mental health treatment for the minor unless provided
36 otherwise; providing that a written designation of a
37 health care surrogate establishes a rebuttable
38 presumption of clear and convincing evidence of the
39 minor’s principal’s designation of the surrogate;
40 creating s. 765.2038, F.S.; providing a suggested form
41 for the designation of a health care surrogate for a
42 minor; amending s. 765.204, F.S.; conforming
43 provisions to changes made by the act; providing for
44 notification of incapacity of a principal; amending s.
45 765.205, F.S.; conforming provisions to changes made
46 by the act; providing an additional requirement when a
47 patient has designated a surrogate to make health care
48 decisions and receive health information, or both,
49 without a determination of incapacity being required;
50 amending ss. 765.302, 765.303, 765.304, 765.306,
51 765.404, and 765.516, F.S.; conforming provisions to
52 changes made by the act; providing an effective date.
53
54 Be It Enacted by the Legislature of the State of Florida:
55
56 Section 1. Paragraph (b) of subsection (1) and paragraph
57 (a) of subsection (2) of section 743.0645, Florida Statutes, are
58 amended to read:
59 743.0645 Other persons who may consent to medical care or
60 treatment of a minor.—
61 (1) As used in this section, the term:
62 (b) “Medical care and treatment” includes ordinary and
63 necessary medical and dental examination and treatment,
64 including blood testing, preventive care including ordinary
65 immunizations, tuberculin testing, and well-child care, but does
66 not include surgery, general anesthesia, provision of
67 psychotropic medications, or other extraordinary procedures for
68 which a separate court order, health care surrogate designation
69 under s. 765.2035 executed after September 30, 2015, power of
70 attorney executed after July 1, 2001, but before October 1,
71 2015, or informed consent as provided by law is required, except
72 as provided in s. 39.407(3).
73 (2) Any of the following persons, in order of priority
74 listed, may consent to the medical care or treatment of a minor
75 who is not committed to the Department of Children and Families
76 or the Department of Juvenile Justice or in their custody under
77 chapter 39, chapter 984, or chapter 985 when, after a reasonable
78 attempt, a person who has the power to consent as otherwise
79 provided by law cannot be contacted by the treatment provider
80 and actual notice to the contrary has not been given to the
81 provider by that person:
82 (a) A health care surrogate designated under s. 765.2035
83 after September 30, 2015, or a person who possesses a power of
84 attorney to provide medical consent for the minor executed
85 before October 1, 2015. A health care surrogate designation
86 under s. 765.2035 executed after September 30, 2015, and a power
87 of attorney executed after July 1, 2001, but before October 1,
88 2015, to provide medical consent for a minor includes the power
89 to consent to medically necessary surgical and general
90 anesthesia services for the minor unless such services are
91 excluded by the individual executing the health care surrogate
92 designation for a minor or power of attorney.
93
94 There shall be maintained in the treatment provider’s records of
95 the minor documentation that a reasonable attempt was made to
96 contact the person who has the power to consent.
97 Section 2. Section 765.101, Florida Statutes, is amended to
98 read:
99 765.101 Definitions.—As used in this chapter:
100 (1) “Advance directive” means a witnessed written document
101 or oral statement in which instructions are given by a principal
102 or in which the principal’s desires are expressed concerning any
103 aspect of the principal’s health care or health information, and
104 includes, but is not limited to, the designation of a health
105 care surrogate, a living will, or an anatomical gift made
106 pursuant to part V of this chapter.
107 (2) “Attending physician” means the primary physician who
108 has responsibility for the treatment and care of the patient.
109 (2)(3) “Close personal friend” means any person 18 years of
110 age or older who has exhibited special care and concern for the
111 patient, and who presents an affidavit to the health care
112 facility or to the attending or treating physician stating that
113 he or she is a friend of the patient; is willing and able to
114 become involved in the patient’s health care; and has maintained
115 such regular contact with the patient so as to be familiar with
116 the patient’s activities, health, and religious or moral
117 beliefs.
118 (3)(4) “End-stage condition” means an irreversible
119 condition that is caused by injury, disease, or illness which
120 has resulted in progressively severe and permanent
121 deterioration, and which, to a reasonable degree of medical
122 probability, treatment of the condition would be ineffective.
123 (4) “Health care” means care, services, or supplies related
124 to the health of an individual and includes, but is not limited
125 to, preventive, diagnostic, therapeutic, rehabilitative,
126 maintenance, or palliative care, and counseling, service,
127 assessment, or procedure with respect to the individual’s
128 physical or mental condition or functional status or that affect
129 the structure or function of the individual’s body.
130 (5) “Health care decision” means:
131 (a) Informed consent, refusal of consent, or withdrawal of
132 consent to any and all health care, including life-prolonging
133 procedures and mental health treatment, unless otherwise stated
134 in the advance directives.
135 (b) The decision to apply for private, public, government,
136 or veterans’ benefits to defray the cost of health care.
137 (c) The right of access to health information all records
138 of the principal reasonably necessary for a health care
139 surrogate or proxy to make decisions involving health care and
140 to apply for benefits.
141 (d) The decision to make an anatomical gift pursuant to
142 part V of this chapter.
143 (6) “Health care facility” means a hospital, nursing home,
144 hospice, home health agency, or health maintenance organization
145 licensed in this state, or any facility subject to part I of
146 chapter 394.
147 (7) “Health care provider” or “provider” means any person
148 licensed, certified, or otherwise authorized by law to
149 administer health care in the ordinary course of business or
150 practice of a profession.
151 (8) “Health information” means any information, whether
152 oral or recorded in any form or medium, as defined in 45 C.F.R.
153 s. 160.103 and the Health Insurance Portability and
154 Accountability Act of 1996, 42 U.S.C. s. 1320d, as amended,
155 that:
156 (a) Is created or received by a health care provider,
157 health care facility, health plan, public health authority,
158 employer, life insurer, school or university, or health care
159 clearinghouse; and
160 (b) Relates to the past, present, or future physical or
161 mental health or condition of the principal; the provision of
162 health care to the principal; or the past, present, or future
163 payment for the provision of health care to the principal.
164 (9)(8) “Incapacity” or “incompetent” means the patient is
165 physically or mentally unable to communicate a willful and
166 knowing health care decision. For the purposes of making an
167 anatomical gift, the term also includes a patient who is
168 deceased.
169 (10)(9) “Informed consent” means consent voluntarily given
170 by a person after a sufficient explanation and disclosure of the
171 subject matter involved to enable that person to have a general
172 understanding of the treatment or procedure and the medically
173 acceptable alternatives, including the substantial risks and
174 hazards inherent in the proposed treatment or procedures, and to
175 make a knowing health care decision without coercion or undue
176 influence.
177 (11)(10) “Life-prolonging procedure” means any medical
178 procedure, treatment, or intervention, including artificially
179 provided sustenance and hydration, which sustains, restores, or
180 supplants a spontaneous vital function. The term does not
181 include the administration of medication or performance of
182 medical procedure, when such medication or procedure is deemed
183 necessary to provide comfort care or to alleviate pain.
184 (12)(11) “Living will” or “declaration” means:
185 (a) A witnessed document in writing, voluntarily executed
186 by the principal in accordance with s. 765.302; or
187 (b) A witnessed oral statement made by the principal
188 expressing the principal’s instructions concerning life
189 prolonging procedures.
190 (13) “Minor’s principal” means a principal who is a natural
191 guardian as defined in s. 744.301(1); legal custodian; or,
192 subject to chapter 744, legal guardian of the person of a minor.
193 (14)(12) “Persistent vegetative state” means a permanent
194 and irreversible condition of unconsciousness in which there is:
195 (a) The absence of voluntary action or cognitive behavior
196 of any kind.
197 (b) An inability to communicate or interact purposefully
198 with the environment.
199 (15)(13) “Physician” means a person licensed pursuant to
200 chapter 458 or chapter 459.
201 (16) “Primary physician” means a physician designated by an
202 individual or the individual’s surrogate, proxy, or agent under
203 a durable power of attorney as provided in chapter 709, to have
204 primary responsibility for the individual’s health care or, in
205 the absence of a designation or if the designated physician is
206 not reasonably available, a physician who undertakes the
207 responsibility.
208 (17)(14) “Principal” means a competent adult executing an
209 advance directive and on whose behalf health care decisions are
210 to be made or health care information is to be received, or
211 both.
212 (18)(15) “Proxy” means a competent adult who has not been
213 expressly designated to make health care decisions for a
214 particular incapacitated individual, but who, nevertheless, is
215 authorized pursuant to s. 765.401 to make health care decisions
216 for such individual.
217 (19) “Reasonably available” means readily able to be
218 contacted without undue effort and willing and able to act in a
219 timely manner considering the urgency of the patient’s health
220 care needs.
221 (20)(16) “Surrogate” means any competent adult expressly
222 designated by a principal to make health care decisions and to
223 receive health information. The principal may stipulate whether
224 the authority of the surrogate to make health care decisions or
225 to receive health information is exercisable immediately without
226 the necessity for a determination of incapacity or only upon the
227 principal’s incapacity as provided in s. 765.204 on behalf of
228 the principal upon the principal’s incapacity.
229 (21)(17) “Terminal condition” means a condition caused by
230 injury, disease, or illness from which there is no reasonable
231 medical probability of recovery and which, without treatment,
232 can be expected to cause death.
233 Section 3. Present subsections (3) through (6) of section
234 765.102, Florida Statutes, are renumbered as subsections (4)
235 through (7), respectively, present subsections (2) and (3) are
236 amended, and a new subsection (3) is added to that section, to
237 read:
238 765.102 Legislative findings and intent.—
239 (2) To ensure that such right is not lost or diminished by
240 virtue of later physical or mental incapacity, the Legislature
241 intends that a procedure be established to allow a person to
242 plan for incapacity by executing a document or orally
243 designating another person to direct the course of his or her
244 health care or receive his or her health information, or both,
245 medical treatment upon his or her incapacity. Such procedure
246 should be less expensive and less restrictive than guardianship
247 and permit a previously incapacitated person to exercise his or
248 her full right to make health care decisions as soon as the
249 capacity to make such decisions has been regained.
250 (3) The Legislature also recognizes that some competent
251 adults may want to receive immediate assistance in making health
252 care decisions or accessing health information, or both, without
253 a determination of incapacity. The Legislature intends that a
254 procedure be established to allow a person to designate a
255 surrogate to make health care decisions or receive health
256 information, or both, without the necessity for a determination
257 of incapacity under this chapter.
258 (4)(3) The Legislature recognizes that for some the
259 administration of life-prolonging medical procedures may result
260 in only a precarious and burdensome existence. In order to
261 ensure that the rights and intentions of a person may be
262 respected even after he or she is no longer able to participate
263 actively in decisions concerning himself or herself, and to
264 encourage communication among such patient, his or her family,
265 and his or her physician, the Legislature declares that the laws
266 of this state recognize the right of a competent adult to make
267 an advance directive instructing his or her physician to
268 provide, withhold, or withdraw life-prolonging procedures, or to
269 designate another to make the health care treatment decision for
270 him or her in the event that such person should become
271 incapacitated and unable to personally direct his or her health
272 medical care.
273 Section 4. Subsection (1) of section 765.104, Florida
274 Statutes, is amended to read:
275 765.104 Amendment or revocation.—
276 (1) An advance directive or designation of a surrogate may
277 be amended or revoked at any time by a competent principal:
278 (a) By means of a signed, dated writing;
279 (b) By means of the physical cancellation or destruction of
280 the advance directive by the principal or by another in the
281 principal’s presence and at the principal’s direction;
282 (c) By means of an oral expression of intent to amend or
283 revoke; or
284 (d) By means of a subsequently executed advance directive
285 that is materially different from a previously executed advance
286 directive.
287 Section 5. Section 765.105, Florida Statutes, is amended to
288 read:
289 765.105 Review of surrogate or proxy’s decision.—
290 (1) The patient’s family, the health care facility, or the
291 attending physician, or any other interested person who may
292 reasonably be expected to be directly affected by the surrogate
293 or proxy’s decision concerning any health care decision may seek
294 expedited judicial intervention pursuant to rule 5.900 of the
295 Florida Probate Rules, if that person believes:
296 (a)(1) The surrogate or proxy’s decision is not in accord
297 with the patient’s known desires or the provisions of this
298 chapter;
299 (b)(2) The advance directive is ambiguous, or the patient
300 has changed his or her mind after execution of the advance
301 directive;
302 (c)(3) The surrogate or proxy was improperly designated or
303 appointed, or the designation of the surrogate is no longer
304 effective or has been revoked;
305 (d)(4) The surrogate or proxy has failed to discharge
306 duties, or incapacity or illness renders the surrogate or proxy
307 incapable of discharging duties;
308 (e)(5) The surrogate or proxy has abused his or her powers;
309 or
310 (f)(6) The patient has sufficient capacity to make his or
311 her own health care decisions.
312 (2) This section does not apply to a patient who is not
313 incapacitated and who has designated a surrogate who has
314 immediate authority to make health care decisions and receive
315 health information, or both, on behalf of the patient.
316 Section 6. Subsection (1) of section 765.1103, Florida
317 Statutes, is amended to read:
318 765.1103 Pain management and palliative care.—
319 (1) A patient shall be given information concerning pain
320 management and palliative care when he or she discusses with the
321 attending or treating physician, or such physician’s designee,
322 the diagnosis, planned course of treatment, alternatives, risks,
323 or prognosis for his or her illness. If the patient is
324 incapacitated, the information shall be given to the patient’s
325 health care surrogate or proxy, court-appointed guardian as
326 provided in chapter 744, or attorney in fact under a durable
327 power of attorney as provided in chapter 709. The court
328 appointed guardian or attorney in fact must have been delegated
329 authority to make health care decisions on behalf of the
330 patient.
331 Section 7. Section 765.1105, Florida Statutes, is amended
332 to read:
333 765.1105 Transfer of a patient.—
334 (1) A health care provider or facility that refuses to
335 comply with a patient’s advance directive, or the treatment
336 decision of his or her surrogate or proxy, shall make reasonable
337 efforts to transfer the patient to another health care provider
338 or facility that will comply with the directive or treatment
339 decision. This chapter does not require a health care provider
340 or facility to commit any act which is contrary to the
341 provider’s or facility’s moral or ethical beliefs, if the
342 patient:
343 (a) Is not in an emergency condition; and
344 (b) Has received written information upon admission
345 informing the patient of the policies of the health care
346 provider or facility regarding such moral or ethical beliefs.
347 (2) A health care provider or facility that is unwilling to
348 carry out the wishes of the patient or the treatment decision of
349 his or her surrogate or proxy because of moral or ethical
350 beliefs must within 7 days either:
351 (a) Transfer the patient to another health care provider or
352 facility. The health care provider or facility shall pay the
353 costs for transporting the patient to another health care
354 provider or facility; or
355 (b) If the patient has not been transferred, carry out the
356 wishes of the patient or the patient’s surrogate or proxy,
357 unless the provisions of s. 765.105 applies apply.
358 Section 8. Subsections (1), (3), and (4) of section
359 765.202, Florida Statutes, are amended, present subsections (6)
360 and (7) are renumbered as subsections (7) and (8), respectively,
361 and a new subsection (6) is added to that section, to read:
362 765.202 Designation of a health care surrogate.—
363 (1) A written document designating a surrogate to make
364 health care decisions for a principal or receive health
365 information on behalf of a principal, or both, shall be signed
366 by the principal in the presence of two subscribing adult
367 witnesses. A principal unable to sign the instrument may, in the
368 presence of witnesses, direct that another person sign the
369 principal’s name as required herein. An exact copy of the
370 instrument shall be provided to the surrogate.
371 (3) A document designating a health care surrogate may also
372 designate an alternate surrogate provided the designation is
373 explicit. The alternate surrogate may assume his or her duties
374 as surrogate for the principal if the original surrogate is not
375 willing, able, or reasonably available unwilling or unable to
376 perform his or her duties. The principal’s failure to designate
377 an alternate surrogate shall not invalidate the designation of a
378 surrogate.
379 (4) If neither the designated surrogate nor the designated
380 alternate surrogate is willing, able, or reasonably available
381 able or willing to make health care decisions on behalf of the
382 principal and in accordance with the principal’s instructions,
383 the health care facility may seek the appointment of a proxy
384 pursuant to part IV.
385 (6) A principal may stipulate in the document that the
386 authority of the surrogate to receive health information or make
387 health care decisions or both is exercisable immediately without
388 the necessity for a determination of incapacity as provided in
389 s. 765.204.
390 Section 9. Section 765.203, Florida Statutes, is amended to
391 read:
392 765.203 Suggested form of designation.—A written
393 designation of a health care surrogate executed pursuant to this
394 chapter may, but need not be, in the following form:
395
396 DESIGNATION OF HEALTH CARE SURROGATE
397
398 I, ....(name)...., designate as my health care surrogate under
399 s. 765.202, Florida Statutes:
400
401 Name: ...(name of health care surrogate)...
402 Address: ...(address)...
403 Phone: ...(telephone)...
404
405 If my health care surrogate is not willing, able, or reasonably
406 available to perform his or her duties, I designate as my
407 alternate health care surrogate:
408
409 Name: ...(name of alternate health care surrogate)...
410 Address: ...(address)...
411 Phone: ...(telephone)...
412
413 INSTRUCTIONS FOR HEALTH CARE
414 I authorize my health care surrogate to:
415 ...(Initial here)... Receive any of my health information,
416 whether oral or recorded in any form or medium, that:
417 1. Is created or received by a health care provider, health
418 care facility, health plan, public health authority, employer,
419 life insurer, school or university, or health care
420 clearinghouse; and
421 2. Relates to my past, present, or future physical or
422 mental health or condition; the provision of health care to me;
423 or the past, present, or future payment for the provision of
424 health care to me.
425 I further authorize my health care surrogate to:
426 ...(Initial here)... Make all health care decisions for me,
427 which means he or she has the authority to:
428 1. Provide informed consent, refusal of consent, or
429 withdrawal of consent to any and all of my health care,
430 including life-prolonging procedures.
431 2. Apply on my behalf for private, public, government, or
432 veterans’ benefits to defray the cost of health care.
433 3. Access my health information reasonably necessary for
434 the health care surrogate to make decisions involving my health
435 care and to apply for benefits for me.
436 4. Decide to make an anatomical gift pursuant to part V of
437 chapter 765, Florida Statutes.
438 ...(Initial here)... Specific instructions and restrictions:....
439 ................................................................
440 ................................................................
441
442 To the extent I am capable of understanding, my health care
443 surrogate shall keep me reasonably informed of all decisions
444 that he or she has made on my behalf and matters concerning me.
445
446 THIS HEALTH CARE SURROGATE DESIGNATION IS NOT AFFECTED BY MY
447 SUBSEQUENT INCAPACITY EXCEPT AS PROVIDED IN CHAPTER 765, FLORIDA
448 STATUTES.
449
450 MY HEALTH CARE SURROGATE’S AUTHORITY BECOMES EFFECTIVE WHEN MY
451 PRIMARY PHYSICIAN DETERMINES THAT I AM UNABLE TO MAKE MY OWN
452 HEALTH CARE DECISIONS UNLESS I INITIAL EITHER OR BOTH OF THE
453 FOLLOWING BOXES:
454
455 IF I INITIAL THIS BOX [ ], MY HEALTH CARE SURROGATE’S AUTHORITY
456 TO RECEIVE MY HEALTH INFORMATION TAKES EFFECT IMMEDIATELY.
457
458 IF I INITIAL THIS BOX [ ], MY HEALTH CARE SURROGATE’S AUTHORITY
459 TO MAKE HEALTH CARE DECISIONS FOR ME TAKES EFFECT IMMEDIATELY.
460
461 SIGNATURES: Sign and date the form here:
462 ...(date)... ...(sign your name)...
463 ...(address)... ...(print your name)...
464 ...(city)... ...(state)...
465
466 SIGNATURES OF WITNESSES:
467 First witness Second witness
468 ...(print name)... ...(print name)...
469 ...(address)... ...(address)...
470 ...(city)... ...(city)...
471 ...(state)... ...(state)...
472 ...(signature of witness)... ...(signature of witness)...
473 ...(date)... ...(date)...
474 Name:....(Last)....(First)....(Middle Initial)....
475 In the event that I have been determined to be
476 incapacitated to provide informed consent for medical treatment
477 and surgical and diagnostic procedures, I wish to designate as
478 my surrogate for health care decisions:
479
480 Name:...........................................................
481 Address:........................................................
482 ........................ Zip Code:........
483 Phone:................
484 If my surrogate is unwilling or unable to perform his or
485 her duties, I wish to designate as my alternate surrogate:
486 Name:...........................................................
487 Address:........................................................
488 ........................ Zip Code:........
489 Phone:................
490 I fully understand that this designation will permit my
491 designee to make health care decisions and to provide, withhold,
492 or withdraw consent on my behalf; to apply for public benefits
493 to defray the cost of health care; and to authorize my admission
494 to or transfer from a health care facility.
495 Additional instructions (optional):.............................
496 ................................................................
497 ................................................................
498 ................................................................
499 I further affirm that this designation is not being made as
500 a condition of treatment or admission to a health care facility.
501 I will notify and send a copy of this document to the following
502 persons other than my surrogate, so they may know who my
503 surrogate is.
504 Name:...........................................................
505 Name:...........................................................
506 ................................................................
507 ................................................................
508 Signed:.........................................................
509 Date:...........................................................
510 Witnesses:1.
511 2.
512 Section 10. Section 765.2035, Florida Statutes, is created
513 to read:
514 765.2035 Designation of a health care surrogate for a
515 minor.—
516 (1) A natural guardian as defined in s. 744.301(1), legal
517 custodian, or legal guardian of the person of a minor may
518 designate a competent adult to serve as a surrogate to make
519 health care decisions for the minor. Such designation shall be
520 made by a written document signed by the minor’s principal in
521 the presence of two subscribing adult witnesses. If a minor’s
522 principal is unable to sign the instrument, the principal may,
523 in the presence of witnesses, direct that another person sign
524 the minor’s principal’s name as required by this subsection. An
525 exact copy of the instrument shall be provided to the surrogate.
526 (2) The person designated as surrogate may not act as
527 witness to the execution of the document designating the health
528 care surrogate.
529 (3) A document designating a health care surrogate may also
530 designate an alternate surrogate; however, such designation must
531 be explicit. The alternate surrogate may assume his or her
532 duties as surrogate if the original surrogate is not willing,
533 able, or reasonably available to perform his or her duties. The
534 minor’s principal’s failure to designate an alternate surrogate
535 does not invalidate the designation.
536 (4) If neither the designated surrogate or the designated
537 alternate surrogate is willing, able, or reasonably available to
538 make health care decisions for the minor on behalf of the
539 minor’s principal and in accordance with the minor’s principal’s
540 instructions, s. 743.0645(2) shall apply as if no surrogate had
541 been designated.
542 (5) A natural guardian as defined in s. 744.301(1), legal
543 custodian, or legal guardian of the person of a minor may
544 designate a separate surrogate to consent to mental health
545 treatment for the minor. However, unless the document
546 designating the health care surrogate expressly states
547 otherwise, the court shall assume that the health care surrogate
548 who is authorized to make health care decisions for a minor
549 under this chapter is also the minor’s principal’s choice to
550 make decisions regarding mental health treatment for the minor.
551 (6) Unless the document states a time of termination, the
552 designation shall remain in effect until revoked by the minor’s
553 principal. An otherwise valid designation of a surrogate for a
554 minor shall not be invalid solely because it was made before the
555 birth of the minor.
556 (7) A written designation of a health care surrogate
557 executed pursuant to this section establishes a rebuttable
558 presumption of clear and convincing evidence of the minor’s
559 principal’s designation of the surrogate and becomes effective
560 pursuant to s. 743.0645(2)(a).
561 Section 11. Section 765.2038, Florida Statutes, is created
562 to read:
563 765.2038 Designation of health care surrogate for a minor;
564 suggested form.—A written designation of a health care surrogate
565 for a minor executed pursuant to this chapter may, BUT NEED NOT,
566 be, in the following form:
567 DESIGNATION OF HEALTH CARE SURROGATE
568 FOR MINOR
569 I/We, _...(name/names)..., the [....] natural guardian(s)
570 as defined in s. 744.301(1), Florida Statutes; [....] legal
571 custodian(s); [....] legal guardian(s) [check one] of the
572 following minor(s):
573
574 .......................................;
575 .......................................;
576 .......................................,
577
578 pursuant to s. 765.2035, Florida Statutes, designate the
579 following person to act as my/our surrogate for health care
580 decisions for such minor(s) in the event that I/we am/are not
581 able or reasonably available to provide consent for medical
582 treatment and surgical and diagnostic procedures:
583
584 Name: ...(name)...
585 Address: ...(address)...
586 Zip Code: ...(zip code)...
587 Phone: ...(telephone)...
588
589 If my/our designated health care surrogate for a minor is
590 not willing, able, or reasonably available to perform his or her
591 duties, I/we designate the following person as my/our alternate
592 health care surrogate for a minor:
593
594 Name: ...(name)...
595 Address: ...(address)...
596 Zip Code: ...(zip code)...
597 Phone: ...(telephone)...
598
599 I/We authorize and request all physicians, hospitals, or
600 other providers of medical services to follow the instructions
601 of my/our surrogate or alternate surrogate, as the case may be,
602 at any time and under any circumstances whatsoever, with regard
603 to medical treatment and surgical and diagnostic procedures for
604 a minor, provided the medical care and treatment of any minor is
605 on the advice of a licensed physician.
606
607 I/We fully understand that this designation will permit
608 my/our designee to make health care decisions for a minor and to
609 provide, withhold, or withdraw consent on my/our behalf, to
610 apply for public benefits to defray the cost of health care, and
611 to authorize the admission or transfer of a minor to or from a
612 health care facility.
613
614 I/We will notify and send a copy of this document to the
615 following person(s) other than my/our surrogate, so that they
616 may know the identity of my/our surrogate:
617
618 Name: ...(name)...
619 Name: ...(name)...
620
621 Signed: ...(signature)...
622 Date: ...(date)...
623
624 WITNESSES:
625 1. ...(witness)...
626 2. ...(witness)...
627 Section 12. Section 765.204, Florida Statutes, is amended
628 to read:
629 765.204 Capacity of principal; procedure.—
630 (1) A principal is presumed to be capable of making health
631 care decisions for herself or himself unless she or he is
632 determined to be incapacitated. Incapacity may not be inferred
633 from the person’s voluntary or involuntary hospitalization for
634 mental illness or from her or his intellectual disability.
635 (2) If a principal’s capacity to make health care decisions
636 for herself or himself or provide informed consent is in
637 question, the attending physician shall evaluate the principal’s
638 capacity and, if the physician concludes that the principal
639 lacks capacity, enter that evaluation in the principal’s medical
640 record. If the attending physician has a question as to whether
641 the principal lacks capacity, another physician shall also
642 evaluate the principal’s capacity, and if the second physician
643 agrees that the principal lacks the capacity to make health care
644 decisions or provide informed consent, the health care facility
645 shall enter both physician’s evaluations in the principal’s
646 medical record. If the principal has designated a health care
647 surrogate or has delegated authority to make health care
648 decisions to an attorney in fact under a durable power of
649 attorney, the health care facility shall notify such surrogate
650 or attorney in fact in writing that her or his authority under
651 the instrument has commenced, as provided in chapter 709 or s.
652 765.203.
653 (3) The surrogate’s authority shall commence upon a
654 determination under subsection (2) that the principal lacks
655 capacity, and such authority shall remain in effect until a
656 determination that the principal has regained such capacity.
657 Upon commencement of the surrogate’s authority, a surrogate who
658 is not the principal’s spouse shall notify the principal’s
659 spouse or adult children of the principal’s designation of the
660 surrogate. In the event the attending physician determines that
661 the principal has regained capacity, the authority of the
662 surrogate shall cease, but shall recommence if the principal
663 subsequently loses capacity as determined pursuant to this
664 section.
665 (4) Notwithstanding subsections (2) and (3), if the
666 principal has designated a health care surrogate and has
667 stipulated that the authority of the surrogate is to take effect
668 immediately, or has appointed an agent under a durable power of
669 attorney as provided in chapter 709 to make health care
670 decisions for the principal, the health care facility shall
671 notify such surrogate or agent in writing when a determination
672 of incapacity has been entered into the principal’s medical
673 record.
674 (5)(4) A determination made pursuant to this section that a
675 principal lacks capacity to make health care decisions shall not
676 be construed as a finding that a principal lacks capacity for
677 any other purpose.
678 (6)(5) If In the event the surrogate is required to consent
679 to withholding or withdrawing life-prolonging procedures, the
680 provisions of part III applies shall apply.
681 Section 13. Section 765.205, Florida Statutes, is amended
682 to read:
683 765.205 Responsibility of the surrogate.—
684 (1) The surrogate, in accordance with the principal’s
685 instructions, unless such authority has been expressly limited
686 by the principal, shall:
687 (a) Have authority to act for the principal and to make all
688 health care decisions for the principal during the principal’s
689 incapacity.
690 (b) Consult expeditiously with appropriate health care
691 providers to provide informed consent, and make only health care
692 decisions for the principal which he or she believes the
693 principal would have made under the circumstances if the
694 principal were capable of making such decisions. If there is no
695 indication of what the principal would have chosen, the
696 surrogate may consider the patient’s best interest in deciding
697 that proposed treatments are to be withheld or that treatments
698 currently in effect are to be withdrawn.
699 (c) Provide written consent using an appropriate form
700 whenever consent is required, including a physician’s order not
701 to resuscitate.
702 (d) Be provided access to the appropriate health
703 information medical records of the principal.
704 (e) Apply for public benefits, such as Medicare and
705 Medicaid, for the principal and have access to information
706 regarding the principal’s income and assets and banking and
707 financial records to the extent required to make application. A
708 health care provider or facility may not, however, make such
709 application a condition of continued care if the principal, if
710 capable, would have refused to apply.
711 (2) The surrogate may authorize the release of health
712 information and medical records to appropriate persons to ensure
713 the continuity of the principal’s health care and may authorize
714 the admission, discharge, or transfer of the principal to or
715 from a health care facility or other facility or program
716 licensed under chapter 400 or chapter 429.
717 (3) Notwithstanding subsections (1) and (2), if the
718 principal has designated a health care surrogate and has
719 stipulated that the authority of the surrogate is to take effect
720 immediately, or has appointed an agent under a durable power of
721 attorney as provided in chapter 709 to make health care
722 decisions for the principal, the fundamental right of self
723 determination of every competent adult regarding his or her
724 health care decisions shall be controlling. Before implementing
725 a health care decision made for a principal who is not
726 incapacitated, the primary physician, another physician, a
727 health care provider, or a health care facility, if possible,
728 must promptly communicate to the principal the decision made and
729 the identity of the person making the decision.
730 (4)(3) If, after the appointment of a surrogate, a court
731 appoints a guardian, the surrogate shall continue to make health
732 care decisions for the principal, unless the court has modified
733 or revoked the authority of the surrogate pursuant to s.
734 744.3115. The surrogate may be directed by the court to report
735 the principal’s health care status to the guardian.
736 Section 14. Subsection (2) of section 765.302, Florida
737 Statutes, is amended to read:
738 765.302 Procedure for making a living will; notice to
739 physician.—
740 (2) It is the responsibility of the principal to provide
741 for notification to her or his attending or treating physician
742 that the living will has been made. In the event the principal
743 is physically or mentally incapacitated at the time the
744 principal is admitted to a health care facility, any other
745 person may notify the physician or health care facility of the
746 existence of the living will. A An attending or treating
747 physician or health care facility which is so notified shall
748 promptly make the living will or a copy thereof a part of the
749 principal’s medical records.
750 Section 15. Subsection (1) of section 765.303, Florida
751 Statutes, is amended to read:
752 765.303 Suggested form of a living will.—
753 (1) A living will may, BUT NEED NOT, be in the following
754 form:
755 Living Will
756 Declaration made this .... day of ...., ...(year)..., I,
757 ........, willfully and voluntarily make known my desire that my
758 dying not be artificially prolonged under the circumstances set
759 forth below, and I do hereby declare that, if at any time I am
760 incapacitated and
761 ...(initial)... I have a terminal condition
762 or ...(initial)... I have an end-stage condition
763 or ...(initial)... I am in a persistent vegetative state
764
765 and if my attending or treating physician and another consulting
766 physician have determined that there is no reasonable medical
767 probability of my recovery from such condition, I direct that
768 life-prolonging procedures be withheld or withdrawn when the
769 application of such procedures would serve only to prolong
770 artificially the process of dying, and that I be permitted to
771 die naturally with only the administration of medication or the
772 performance of any medical procedure deemed necessary to provide
773 me with comfort care or to alleviate pain.
774 It is my intention that this declaration be honored by my
775 family and physician as the final expression of my legal right
776 to refuse medical or surgical treatment and to accept the
777 consequences for such refusal.
778 In the event that I have been determined to be unable to
779 provide express and informed consent regarding the withholding,
780 withdrawal, or continuation of life-prolonging procedures, I
781 wish to designate, as my surrogate to carry out the provisions
782 of this declaration:
783
784 Name:...........................................................
785 Address:........................................................
786 ........................ Zip Code:........
787 Phone:................
788 I understand the full import of this declaration, and I am
789 emotionally and mentally competent to make this declaration.
790 Additional Instructions (optional):
791 ................................................................
792 ................................................................
793 ................................................................
794 ....(Signed)....
795 ....Witness....
796 ....Address....
797 ....Phone....
798 ....Witness....
799 ....Address....
800 ....Phone....
801
802 Section 16. Subsection (1) of section 765.304, Florida
803 Statutes, is amended to read:
804 765.304 Procedure for living will.—
805 (1) If a person has made a living will expressing his or
806 her desires concerning life-prolonging procedures, but has not
807 designated a surrogate to execute his or her wishes concerning
808 life-prolonging procedures or designated a surrogate under part
809 II, the person’s attending physician may proceed as directed by
810 the principal in the living will. In the event of a dispute or
811 disagreement concerning the attending physician’s decision to
812 withhold or withdraw life-prolonging procedures, the attending
813 physician shall not withhold or withdraw life-prolonging
814 procedures pending review under s. 765.105. If a review of a
815 disputed decision is not sought within 7 days following the
816 attending physician’s decision to withhold or withdraw life
817 prolonging procedures, the attending physician may proceed in
818 accordance with the principal’s instructions.
819 Section 17. Section 765.306, Florida Statutes, is amended
820 to read:
821 765.306 Determination of patient condition.—In determining
822 whether the patient has a terminal condition, has an end-stage
823 condition, or is in a persistent vegetative state or may recover
824 capacity, or whether a medical condition or limitation referred
825 to in an advance directive exists, the patient’s attending or
826 treating physician and at least one other consulting physician
827 must separately examine the patient. The findings of each such
828 examination must be documented in the patient’s medical record
829 and signed by each examining physician before life-prolonging
830 procedures may be withheld or withdrawn.
831 Section 18. Section 765.404, Florida Statutes, is amended
832 to read:
833 765.404 Persistent vegetative state.—For persons in a
834 persistent vegetative state, as determined by the person’s
835 attending physician in accordance with currently accepted
836 medical standards, who have no advance directive and for whom
837 there is no evidence indicating what the person would have
838 wanted under such conditions, and for whom, after a reasonably
839 diligent inquiry, no family or friends are available or willing
840 to serve as a proxy to make health care decisions for them,
841 life-prolonging procedures may be withheld or withdrawn under
842 the following conditions:
843 (1) The person has a judicially appointed guardian
844 representing his or her best interest with authority to consent
845 to medical treatment; and
846 (2) The guardian and the person’s attending physician, in
847 consultation with the medical ethics committee of the facility
848 where the patient is located, conclude that the condition is
849 permanent and that there is no reasonable medical probability
850 for recovery and that withholding or withdrawing life-prolonging
851 procedures is in the best interest of the patient. If there is
852 no medical ethics committee at the facility, the facility must
853 have an arrangement with the medical ethics committee of another
854 facility or with a community-based ethics committee approved by
855 the Florida Bio-ethics Network. The ethics committee shall
856 review the case with the guardian, in consultation with the
857 person’s attending physician, to determine whether the condition
858 is permanent and there is no reasonable medical probability for
859 recovery. The individual committee members and the facility
860 associated with an ethics committee shall not be held liable in
861 any civil action related to the performance of any duties
862 required in this subsection.
863 Section 19. Paragraph (c) of subsection (1) of section
864 765.516, Florida Statutes, is amended to read:
865 765.516 Donor amendment or revocation of anatomical gift.—
866 (1) A donor may amend the terms of or revoke an anatomical
867 gift by:
868 (c) A statement made during a terminal illness or injury
869 addressed to a treating an attending physician, who must
870 communicate the revocation of the gift to the procurement
871 organization.
872 Section 20. This act shall take effect October 1, 2015.
