How Does a Health Care Surrogate Resign?
Full Question:
Answer:
A health care surrogate’s authority to make decisions for the principal does not exist until a physician determines the principal lacks capacity. The directive may be revoked by the principal or amended to name another or alternate surrogate. If the surrogate named refuses to act, a health care facility may seek the appointment of a proxy. We suggest you seek support from your local Alanon group. Please see:
http://www.al-anon-pinellas.org/meetings.htm
Please see the following FL statutes:
765.104 Amendment or revocation. —
(1) An advance directive or designation of a surrogate may be amended or
revoked at any time by a competent principal:
(a) By means of a signed, dated writing;
(b) By means of the physical cancellation or destruction of the advance
directive by the principal or by another in the principal's presence and at
the principal's direction;
(c) By means of an oral expression of intent to amend or revoke; or
(d) By means of a subsequently executed advance directive that is
materially different from a previously executed advance directive.
(2) Unless otherwise provided in the advance directive or in an order of
dissolution or annulment of marriage, the dissolution or annulment of
marriage of the principal revokes the designation of the principal's former
spouse as a surrogate.
(3) Any such amendment or revocation will be effective when it is
communicated to the surrogate, health care provider, or health care
facility. No civil or criminal liability shall be imposed upon any person
for a failure to act upon an amendment or revocation unless that person has
actual knowledge of such amendment or revocation.
(4) Any patient for whom a medical proxy has been recognized under s.
765.401 and for whom any previous legal disability that precluded the
patient's ability to consent is removed may amend or revoke the recognition
of the medical proxy and any uncompleted decision made by that proxy. The
amendment or revocation takes effect when it is communicated to the proxy,
the health care provider, or the health care facility in writing or, if
communicated orally, in the presence of a third person.
765.202 Designation of a health care surrogate. —
(1) A written document designating a surrogate to make health care
decisions for a principal shall be signed by the principal in the presence
of two subscribing adult witnesses. A principal unable to sign the
instrument may, in the presence of witnesses, direct that another person
sign the principal's name as required herein. An exact copy of the
instrument shall be provided to the surrogate.
(2) The person designated as surrogate shall not act as witness to the
execution of the document designating the health care surrogate. At least
one person who acts as a witness shall be neither the principal's spouse
nor blood relative.
(3) A document designating a health care surrogate may also designate an
alternate surrogate provided the designation is explicit. The alternate
surrogate may assume his or her duties as surrogate for the principal if
the original surrogate is unwilling or unable to perform his or her duties.
The principal's failure to designate an alternate surrogate shall not
invalidate the designation.
(4) If neither the designated surrogate nor the designated alternate
surrogate is able or willing to make health care decisions on behalf of the
principal and in accordance with the principal's instructions, the health
care facility may seek the appointment of a proxy pursuant to part IV.
(5) A principal may designate a separate surrogate to consent to mental
health treatment in the event that the principal is determined by a court
to be incompetent to consent to mental health treatment and a guardian
advocate is appointed as provided under s. 394.4598. However, unless the
document designating the health care surrogate expressly states otherwise,
the court shall assume that the health care surrogate authorized to make
health care decisions under this chapter is also the principal's choice to
make decisions regarding mental health treatment.
(6) Unless the document states a time of termination, the designation
shall remain in effect until revoked by the principal.
(7) A written designation of a health care surrogate executed pursuant to
this section establishes a rebuttable presumption of clear and convincing
evidence of the principal's designation of the surrogate.
765.204 Capacity of principal; procedure. —
(1) A principal is presumed to be capable of making health care decisions
for herself or himself unless she or he is determined to be incapacitated.
Incapacity may not be inferred from the person's voluntary or involuntary
hospitalization for mental illness or from her or his mental retardation.
(2) If a principal's capacity to make health care decisions for herself
or himself or provide informed consent is in question, the attending
physician shall evaluate the principal's capacity and, if the physician
concludes that the principal lacks capacity, enter that evaluation in the
principal's medical record. If the attending physician has a question as to
whether the principal lacks capacity, another physician shall also evaluate
the principal's capacity, and if the second physician agrees that the
principal lacks the capacity to make health care decisions or provide
informed consent, the health care facility shall enter both physician's
evaluations in the principal's medical record. If the principal has
designated a health care surrogate or has delegated authority to make
health care decisions to an attorney in fact under a durable power of
attorney, the facility shall notify such surrogate or attorney in fact in
writing that her or his authority under the instrument has commenced, as
provided in chapter 709 or s. 765.203.
(3) The surrogate's authority shall commence upon a determination under
subsection (2) that the principal lacks capacity, and such authority shall
remain in effect until a determination that the principal has regained such
capacity. Upon commencement of the surrogate's authority, a surrogate who
is not the principal's spouse shall notify the principal's spouse or adult
children of the principal's designation of the surrogate. In the event the
attending physician determines that the principal has regained capacity,
the authority of the surrogate shall cease, but shall recommence if the
principal subsequently loses capacity as determined pursuant to this
section.
(4) A determination made pursuant to this section that a principal lacks
capacity to make health care decisions shall not be construed as a finding
that a principal lacks capacity for any other purpose.
(5) In the event the surrogate is required to consent to withholding or
withdrawing life-prolonging procedures, the provisions of part III shall
apply.
765.205 Responsibility of the surrogate. —
(1) The surrogate, in accordance with the principal's instructions,
unless such authority has been expressly limited by the principal, shall:
(a) Have authority to act for the principal and to make all health care
decisions for the principal during the principal's incapacity.
(b) Consult expeditiously with appropriate health care providers to
provide informed consent, and make only health care decisions for the
principal which he or she believes the principal would have made under the
circumstances if the principal were capable of making such decisions. If
there is no indication of what the principal would have chosen, the
surrogate may consider the patient's best interest in deciding that
proposed treatments are to be withheld or that treatments currently in
effect are to be withdrawn.
(c) Provide written consent using an appropriate form whenever consent is
required, including a physician's order not to resuscitate.
(d) Be provided access to the appropriate medical records of the
principal.
(e) Apply for public benefits, such as Medicare and Medicaid, for the
principal and have access to information regarding the principal's income
and assets and banking and financial records to the extent required to make
application. A health care provider or facility may not, however, make such
application a condition of continued care if the principal, if capable,
would have refused to apply.
(2) The surrogate may authorize the release of information and medical
records to appropriate persons to ensure the continuity of the principal's
health care and may authorize the admission, discharge, or transfer of the
principal to or from a health care facility or other facility or program
licensed under chapter 400 or chapter 429.
(3) If, after the appointment of a surrogate, a court appoints a
guardian, the surrogate shall continue to make health care decisions for
the principal, unless the court has modified or revoked the authority of
the surrogate pursuant to s. 744.3115. The surrogate may be directed by the
court to report the principal's health care status to the guardian.
744.3115 Advance directives for health care. —
In each proceeding in which a guardian is appointed under this chapter,
the court shall determine whether the ward, prior to incapacity, has
executed any valid advance directive under chapter 765. If any advance
directive exists, the court shall specify in its order and letters of
guardianship what authority, if any, the guardian shall exercise over the
surrogate. Pursuant to the grounds listed in s. 765.105, the court, upon
its own motion, may, with notice to the surrogate and any other appropriate
parties, modify or revoke the authority of the surrogate to make health
care decisions for the ward. For purposes of this section, the term "health
care decision" has the same meaning as in s. 765.101.
