Although many of us don’t consider the rare circumstance when we are unable to communicate or decide our own wishes, it’s important to put in place the necessary legal documents just in case that situation arises. One of those documents is a Designation of Health Care Surrogate.

What is a Health Care Surrogate?

A health care surrogate is a person of your choice who will make health care decisions and receive health care information on your behalf if you are ever incapacitated. You might choose your spouse, an adult child, a parent, a sibling, or a close friend or relative as your health care surrogate. Your surrogate should be someone who knows you well enough to know what health care decisions you would likely make for yourself. Upon choosing a health care surrogate, you should have a conversation with the person about your beliefs and preferences relating to health care and end-of-life care, including any religious preferences which may be relevant.

Why do I Need a Health Care Surrogate?

Every adult needs a health care surrogate because the unexpected can happen. While we hope you will avoid tragedy your whole life, a disaster in need of medical attention can happen to anyone and at any age. In the event you lose your physical or mental power of decision-making, your health care surrogate will make those important medical decisions for you.

Who Should I Choose as My Health Care Surrogate?

When you consider which of your close family members or friends will be the person to make important healthcare decisions for you, a few factors can guide you. For one, you will want a person who is willing and able. Is the person you are considering someone who is responsible and good at making decisions under pressure? Can he or she follow directives and speak up for you at a time of crisis? Is the person in good physical and mental shape him or herself? Next, will you want someone who lives near you and will be at your bedside while making these decisions, or can this person dictate from afar? You may want to choose a surrogate who has similar religious and/or medical wishes as you. It may not be easy for someone to implement directives which are far opposed to that person’s own beliefs.

What Happens if I Don’t Have a Health Care Surrogate?

If you have not properly designated a health care surrogate and end up needing someone to make health care decisions for you, the State of Florida supplies a list of people who will be designated by default, the first of which will act as your proxy and then continuing down the line:

  • A court-appointed guardian (if you have one)
  • Your spouse
  • Your adult child or children
  • Your parent or parents
  • Your adult sibling or siblings
  • A close relative who has exhibited special care/concern for you and has maintained regular contact
  • A close friend
  • A clinical social worker

While the list may be in line with your wishes and was created to supply a good method of picking the right person, it’s not necessarily right for everyone. Or, in the case where your two parents or two children must agree, for example, the two may not agree easily and the person who gets the vote may not be the one whose thoughts are in line with yours. To minimize the confusion and to maximize the chance that the right choice will be made, every adult should property designate a health care surrogate.

Does a Designation of Health Care Surrogate Need to be Notarized?

No, you do not need to notarize your designation, but you will need to sign the designation before two witnesses and have the witnesses attest to your signature. At least one of the witnesses must not be a blood relative. After you and the witnesses have signed, your designated surrogate should receive a copy. It’s a good idea to let other people who are close to you know about the designation and where to find a copy.

Designating an Alternate Surrogate

It’s best to designate a second person as your next-in-line, or alternate, surrogate, in case the first person is not available. Then, only if your alternate is also not available will the Florida default list control.

The Importance of a Living Will

While having a designated health care surrogate is an important aspect of ensuring your wishes are respected if you are incapacitated, a living will is another important document that can help in such a situation. A living will states your specific medical directives and guides the doctors or other medical staff to make the right choice for you. Only if the living will is unclear or does not cover the situation at hand will your health care surrogate need to make a decision on your behalf.

It’s important to speak to a qualified elder law attorney before creating either of these important documents. Contact our experienced attorneys at Mortellaro Law for a free consultation today.