A question that we often receive from clients is: “What is a Health Care Surrogate?” A Health Care Surrogate is the person that is designated to make health care and/or medical decisions on a patient’s behalf, if the patient is incapacitated. A person can state this decision in writing beforehand as to who will be his or her health care surrogate in a document that is often called a Designation Naming Health Care Surrogate or a Declaration Naming Health Care Surrogate. The Designation can name alternates to the original health care surrogate. Also, other states may call the health care surrogate by other names, such as Health Care Power of Attorney or Health Care Proxy.
A person is presumed to be capable of making his or her own health care decisions and giving informed consent to medical treatment, unless they are determined to be incapacitated. So, as long as the patient is capable of making medical decisions, the health care surrogate has no authority to make those types of decisions. If anyone questions whether the patient has capacity to make health care decisions, that patient’s attending physician shall evaluate him or her for capacity, and if the physician so concludes that the patient lacks capacity, the physician must enter the evaluation into the patient’s medical records. If the attending physician is unsure whether the patient lacks capacity, then another physician must evaluate the patient. If the second physician evaluates the patient and finds that the patient lacks capacity to make medical decisions, the facility must enter in both evaluations into the patient’s medical records.
Upon finding the patient lacks capacity to make medical decisions, the facility will notify the health care surrogate that his authority to make health care and medical decisions has started. As long as the patient remains incapacitated, the health care surrogate has the authority to make medical decisions. If the patient regains capacity then the health care surrogate’s authority stops and the surrogate can not make medical or health care decisions. If the surrogate is not the patient’s spouse, once the surrogate has the authority to make health care decisions, the surrogate must notify the patient’s spouse or adult children that he is the surrogate and has the authority.
The document designated the health care surrogate must be in writing and signed by the patient and two adult witnesses. The person named as surrogate must not be one of the witnesses and at least one witness can not be the patient’s spouse or relative. Sometimes instead of signing a Designation Naming Health Care Surrogate or Declaration of Health Care Surrogate, the patient will sign a Durable Power of Attorney that confers the power to make medical and health care decisions. In this case, the facility will notify the power of attorney agent that the patient lacks capacity. Even if the power of attorney document grants the agent authority upon signing, the power of attorney agent does not have the right to make medical decisions until the patient is incapacitated.
In the event that a patient is incapacitated and has not signed a document that designates a health care surrogate or a power of attorney that allows for making health care decisions, then a health care proxy can act. The Florida Statues have default provisions that state who has the right to serve as health care proxy and who has priority. This will be discussed in a later blog entry.
As the facility will contact the health care surrogate or power of attorney agent if the patient lacks capacity, it is important to give a copy of your document that designates a health care surrogate or power of attorney to your doctor ahead of time. Also, if you check into the hospital, you should bring these documents with you. Even if you do not give a copy of the document to your doctor beforehand, you should still sign a designation of health care surrogate or health care power of attorney so that the facility, your family and your friends know who you want to make your health care decisions in the event you are incapacitated.
At Osterhout & McKinney, we prepare designations of health care surrogate and other estate planning documents, so that your wishes may be known. Please call us at (239) 939-4888.