Health Care Surrogates vs. Living Wills

Some people assume that if they are unable to make decisions or if a decision relates to “end of life,” that those closest to them, most often immediate family members, automatically make these decisions on their behalf. Others are aware that to carry out their directives that they need to sign documents generally known as Health Care Surrogates and Living Wills but aren’t quite sure of the difference between the two documents. Clients regularly ask – “what is the difference between a Health Care Surrogate and a Living Will, and why do I need both of these documents?”

Every competent adult in Florida has the fundamental right to make decisions pertaining to his or her own health, including the right to choose or refuse medical treatment. In order to ensure that this right is not diminished or even lost as a result of a person’s incapacity, the Florida legislature has codified the requirements for the creation of two different documents to facilitate medical decisions – the Health Care Surrogate and the Living Will. The Florida legislature has prescribed specific requirements for both the content and execution of these documents to be accepted by hospitals and physicians, and enforceable under the law.

The document which nominates a person to make medical decisions for you is called your Designation of Health Care Surrogate. This person(s), known as your Health Care Surrogate, is permitted to receive all of your health information relating to past, present or future physical or mental health as well as make health care decisions, give consent on your behalf for medical treatment, make anatomical gifts, etc. Your designation of health care surrogate needs to be signed by you in the presence of two witnesses (who also sign the document), who ideally are not related to you. Additionally, you should also designate an alternative surrogate if the original surrogate is not willing, not able or unavailable to perform the required duties.

The Living Will is a document generally used only to direct the providing, withholding or withdrawal of life-prolonging procedures in the event that such person has an end-stage condition or is in a persistent vegetative state. Two physicians, one being the patient’s primary physician, must separately examine the patient and conclude that death is clearly imminent before life-prolonging procedures may be withheld or withdrawn. In order to be effective, Florida law dictates that a living will be signed in the presence of two witnesses (who also sign the document) and again, ideally, these witnesses should, although one does not have to, be unrelated to the person signing the living will. In the absence of a living will, the designated health care surrogate will generally be entitled to make end of life decisions.

You may also hear the term “advance directive” in association with a living will or a designation of health care surrogate. Both the living will and the health care surrogate are themselves types of advance directives under Florida law. (Florida Statutes § 765.101(1)).

It is important to note that if an advance directive is executed in another state and is in compliance with the laws of that state, Florida physicians will generally be required to follow such directive. For example, if you executed a living will in New York that follows New York law, Florida physicians should honor your New York living will.

Most importantly, if you want your health care and end of life wishes carried out, it is imperative that you have both the Health Care Surrogate, and if appropriate, a separate Living Will.

We hope this discussion has been helpful. We encourage you to contact us for any clarification.