Florida has a statute entitled Designation of a Health Care Surrogate for a Minor. For purposes of the designation statute, the definition of “minor” given under the Florida Guardianship Law is implied. That is, a minor is a person “under age 18 years of age whose disabilities have not been removed by marriage or otherwise.” (In other contexts, some other age may limit “minority” under Florida law. For example, Florida’s Uniform Transfers to Minors Act defines a minor as someone “who has not attained the age of 21 years.”)
As one would expect, the parent or parents of a minor are normally the ones to designate a surrogate for a child. The technical question presented by the Designation of Health Care Surrogate for a Minor statute is whether the parent fits within a precisely described class, that is, whether the parent is a “natural guardian as defined in s. 744.301(1)” of a minor. The reference to s. 744.301(1) is an explicit reference to the definition of “natural guardians” in the Florida Guardianship Law. It provides that the parents are “jointly the natural guardians” for their child or children, but with some important qualifications.
If the parents are divorced, “the natural guardianship belongs to the parent to whom sole parental responsibility has been granted” by the divorce court. In case of “shared parental responsibility,” however, “both continue as natural guardians.” (Usually, the matter of the designation of the surrogate for the child is part of the marital settlement agreement whose terms are incorporated in the order dissolving the marriage by the divorce court.) In the case of neither parent being given parental responsibility in case of a divorce, then neither is to be considered “natural guardians.”
If one of the parents dies, then the surviving parent is the sole natural guardian and remains so, even if she remarries. The mother of a child born out-of-wedlock is the natural guardian of the child unless the court enters an order stating otherwise. (The father of a child born out-of-wedlock appears to have no standing under Florida law, absent a court order.) Finally, if the “parental rights” of the parents have been terminated under ch. 39 of the Florida Statutes, then they are no longer considered the minor’s “natural guardians” and their place would be taken by a “legal custodian” or “legal guardian of the person” of that child.
The scope of authority of the child’s surrogate appears to be the same as that of the surrogate of an adult. Both the Health Care Surrogate rules for adults and those for children refer to the same broadly rendered definition of “health care decisions.”
It is worth noting that in either case, adults or children, such decisions under that definition do not necessarily include “abortion, sterilization, electroshock therapy, psychosurgery, certain experimental treatments, or voluntary admission to a mental health facility.” However, if the principal expressly grants the surrogate that authority, then the surrogate may exercise it. It is not clear, at least to me, whether this special authority can be granted by the principal of a Health Care Surrogate designation for a minor, or only where the principal is an adult. But the pertinent statute in Chapter 765 that addresses these extraordinary treatment decisions does not on its face exclude those decisions where they are expressly given to the surrogate of a minor. (I will not discuss here the controversial question of a minor giving consent to an abortion without parental consent.)
The Florida statutes give a “suggested form” for a Designation of Health Care Surrogate for Minor. It is, as one would expect, different from the form that the pertinent statute gives for an adult principal.