Florida’s Health Care Directives Chapter, Chapter 765 of the Florida Statutes, to which I will refer as “the chapter,” has an extensive definitions section. That section at paragraph (21) defines surrogate to mean “any competent adult expressly designated by a principal to make health care decisions and to receive health information.” The chapter often describes such a surrogate as a Health Care Surrogate. That’s the description that I will use most of the time in this post, Health Care Surrogate.
The chapter states that our client, the “principal,” confers the surrogacy on the agent by means of an “express designation,” the meaning of which could include an expression orally. In fact the “Legislative Findings and Intent” section of the chapter states in paragraph (2) that the “Legislature intends that a procedure be established to allow a person to plan for incapacity by executing a document or orally designating another person to direct the course of his or her health care or to receive his or her health information, or both, upon his or her incapacity.” Whether or not oral designations are on a practical basis effective, the chapter gives clear instructions on making the designation in a written document. Such a written document must “be signed by the principal in the presence of two subscribing adult witnesses,” the person designated as surrogate may not serve as a witness to the document, and at least one of the persons who act as witnesses shall be neither the principal’s spouse nor a blood relative. The chapter also states that an “exact copy of the instrument shall be provided to the surrogate.”
The chapter does not, on the other hand, require any of the principal, the witnesses, and the surrogate to sign the document before a notary or that the document must include a notary’s acknowledgement.
The scope of the words health care decision at paragraph (6) of the definitions section is quite wide. For one thing, the definition of a health care decision is not limited to activities related to health care in the sense of diagnoses and therapy. The chapter states that a health care decision also includes the decision to apply for private, public, government, or veterans’ benefits to defray the cost of healthcare, the right of access to health information of the principal reasonably necessary for a health care surrogate or proxy to make decisions involving healthcare, and the authority to make an anatomical gift.
The chapter defines health care itself, of course. Health care, according to paragraph (5) of the definitions section,
means care, services, or supplies related to the health of an individual and includes, but is not limited to, preventative, diagnostic, therapeutic, rehabilitative, maintenance, or palliative care, and counseling, service, assessment, or procedure with respect to the individual’s physical or mental condition or functional status or that affect the structure or function of the individual’s body.
There is a limitation to this broad definition, however. Absent express authority, a surrogate may not provide consent for abortion, sterilization, electroshock therapy, psychosurgery, certain experimental treatments, or voluntary admission to a mental health facility.
I write all of this by way of introduction to the main point that I would like to make in this post. The main point arises from the fact that there are two types of Health Care Surrogate Designations, one that I will call “springing” and one that I will call “immediate.” The main point, then, is that it is important that those who consider making a designation of Health Care Surrogate know the difference between the two types and make informed choices about which type to use.
The “springing” designation has been part of the chapter for many years, and it remains so. The springing designation is not immediately effective. The authority of the surrogate only arises when the principal lacks “the capacity to make care decisions” for himself or herself or the capacity “to provide informed consent” to anything that falls within the definition of health care. In other words, the power and authority of the surrogate “springs” into life only when the principal crosses the threshold of incapacity that the chapter requires.
But who defines the threshold for purposes of the designation? Once defined, who makes the determination of whether the principal has crossed it? I imagine that if I am lying on a fire-rescue stretcher out cold, and my wife is there with a springing designation in hand, then the EMT will probably discuss with her my situation and heed her directions, say to go to Hospital A and not Hospital B. But what if she appears at the records center of a giant hospital and asks for a copy of my medical records, will they respond to her on the basis of a springing designation?
Something like those problems – the problem of defining a disability threshold and determining whether it has been crossed – led the Florida Legislature last year to amend the Health Care Designation to authorize what I would call an “immediate” designation of Health Care Surrogate. Thus, the principal may immediately deputize the surrogate, giving that person an authority that is then and there effective. There are no thresholds of disability with which anyone need be concerned.
So now we have two main forms of Health Care Surrogate Designation: immediate and springing.
My thinking is that spouses should give each other an immediate and not a springing designation of Health Care Surrogate. Elderly people, especially elderly single people, should give a younger person an immediate designation, especially where the younger person is deeply involved already in the principal’s health care. For example, an immediate designation would probably be appropriate where the surrogate candidate as a matter of course accompanies the principal to her doctor’s visits, even into the examining room.
To the extent that a surrogate has distance from the principal, say in terms of physical location or of familiarity with the principal, then perhaps there is reason for a springing designation.
Before ending this discussion, let me add that the new Health Care Surrogate rules that allow for an immediate designation of a Health Care surrogate also direct that control shall remain in the principal. Thus, in the case of a disagreement between the principal and the surrogate, the principal’s decision controls. Furthermore, the principal can revoke the designation at any time. Provided, however, that in each case the principal is competent to make those decisions.
There is more to say about the Designation of Health Care Surrogate, but we will save that for future posts.