Monday, April 4, 2016

Changes to Health Care Surrogacy in Florida

A health care advance directive/surrogacy document is an extremely important planning technique that appoints a representative to make medical decisions in the event you are unable. This person will be permitted to make decisions, and give your consent for medical treatment and the administration of medication.

Historically, a health care surrogate had authority to act on an individual’s behalf only if that individual was deemed incapacitated. For many years, Florida followed this rule, and Florida statutes (Chapter 765) specifically stated that an individual is presumed to be capable of making health care decisions for his or her self unless he or she is determined to be incapacitated by a physician.

Although individuals have the ability to designate a health care decision-maker for one’s incapacity, many individuals also require assistance with health care decisions while they are still competent. Furthermore, many health care surrogates are not equipped with the proper knowledge of the individual’s complete condition and medical history prior to the individual’s incapacity. This in turn hinders the surrogate’s ability to make proper health-related decisions.

 In October 2015, Florida’s Health Care Advance Directives statute was amended, resulting in a change from the historical rule. A provision was added to Chapter 765 providing that a health care surrogate is permitted to make health care decisions on an individual’s behalf while that individual still has capacity. Although a surrogate now has this ability, the statute provides a safeguard stating that where an individual has capacity and his or her decision conflicts with that of a surrogate, the decision of the individual will control.

This Amendment will be most effective when used in conjunction with the Health Insurance Portability and Accountability Act (HIPAA). HIPAA permits health care providers to disclose protected medical information to persons designated by an individual in a written waiver. Thus, when designating a health care surrogate, it is also important to include the surrogate as an authorized recipient in a HIPAA waiver.      
This change will ultimately enable a health care surrogate to engage in more effective care of an individual should his or her health decline. Therefore, when designating a health care surrogate it is important to choose someone who you not only trust, but someone who you feel has the ability to effectively communicate medical treatment options not only for you, but also with you.

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