What Is a Healthcare Surrogate in Florida?

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By Gary M. Landau, Esq.

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Most of us take the ability to make important medical decisions for ourselves for granted. But what happens if an illness or serious accident renders you incapable of communicating your preferences? Who would become the decision-maker for you? The answer is your “health care surrogate.”

What is a healthcare surrogate in Florida?

This blog, from a knowledgeable South Florida attorney serving clients throughout the state from his boutique law firm in Coral Springs, describes what you need to know about health care surrogacy. Information includes how to choose the right person and how to ensure your wishes are documented in a way that is legally valid.

The Definition & Role of a Health Care Surrogate

A health care surrogate is an individual legally authorized to make medical decisions on your behalf if you ever became incapacitated or rendered unable to convey your wishes.

The surrogate acts as your voice for medical treatment and other healthcare matters, including discussing treatment options with your healthcare providers and approving procedures or surgery. The decisions your surrogate makes would ideally be those you would have made if you were able to, because they align with your values, preferences, and desires for your life.

As children, our parents were automatically authorized to act as surrogates. But as an adult, you need to select the person. Even your spouse is not an automatic surrogate unless you take this action.

The designation of a health care surrogate is formalized in a legal document known as a Designation of Healthcare Surrogate form. Law firms often draft this, along with a living will, when clients come in to make their last will and testament, but it can be created on its own as well.

(Learn more in our blog, What are the steps to making a will in Florida.) 

Why Is a Health Care Surrogate Important?

Life is unpredictable. Should you have a sudden accident or medical emergency, or even a longtime illness that takes a turn for the worse, you might not be able to make health care decisions for yourself, or to communicate these wishes to your care team. This could hamper your recovery and also lead to struggles among family members who might have differing views about what is best for you, leading to disputes and delays.

Designating a single person as a healthcare surrogate prevents this confusion. The medical team will have one person to turn to, the surrogate, to make timely, informed decisions that represent what you would want.

Our law firm has seen cases where an elderly relative needed immediate surgery according to their doctors, but some of their grown children refused this course of action. The physicians could not move forward until the children came to an agreement, delaying care in ways that often harmed the patient.

Legally designating one person as the official decision-maker avoids these issues. Plus, it gives you the opportunity in advance to roleplay with the surrogate about various scenarios you might find yourself in, helping them later align their decisions with your wishes.

Who Can Serve as a Healthcare Surrogate?

Under Florida law, anyone over the age of 18 who is of sound mind can be a healthcare surrogate. They could be a family member, a close friend, or anyone you trust to do the job well.

When selecting this person, think not only about whose decisions will most align with your preferences, but also who is most likely to remain clear-headed and calm in what would inevitably be an emotional and chaotic situation. While the surrogate does not have to reside near you, it is generally best to name someone who could get to your bedside in a hospital quickly.

Before you finalize your decision, talk to the person you’re considering to confirm they want to do it, that they understand their responsibilities, and will honor the healthcare preferences you discuss with them in one or more candid conversations. You should also name an alternate surrogate in case your primary choice is unable to do the job when the time comes.

It’s smart to periodically review all estate planning documents, including your healthcare surrogacy form, to ensure the person you name remains right for the job. Note that if you’re married and designate your spouse, divorce typically voids their designation as your surrogate unless otherwise specified in your document.

How Do You Designate a Health Care Surrogate in Florida?

A surrogate is officially named in a Designation of Healthcare Surrogate document. This specifies both who will act as your surrogate and what types of decisions they will be authorized to make.

A legally valid healthcare surrogate document in Florida must include:

  1. Signatures. You must sign and date the form. If you cannot sign for yourself, you may direct someone to sign on your behalf in your presence.
  2. Witnesses. State law requires two adults to witness your signing. These witnesses cannot include your designated surrogate, and at least one witness cannot be your spouse or blood relative. Both witnesses must also sign the form.

While it’s possible to create a healthcare surrogacy document on your own, it is advisable to have an attorney draft it–along with your will and living will. Attorneys are familiar with the laws pertaining to these documents and can ensure they will be deemed valid when they are needed.

(Read our blog, Understanding the benefits of estate planning in Florida.)

What Happens If You Don’t Name a Healthcare Surrogate?

If you don’t formally designate a healthcare surrogate, the law in Florida determines who can make medical decisions for you. The hierarchy typically starts with a court-appointed guardian (if it is determined one is needed), followed by your spouse, adult children, parents, siblings, and then other close relatives. If no suitable individual is identified, a hospital social worker may be assigned to make medical decisions on your behalf.

Without a designated surrogate, your loved ones could face family disputes or even a lengthy legal process. But when you name a healthcare surrogate, you can feel confident that your medical decisions will be in the hands of the person you want.

Do I Need the Guidance of an Attorney and Law Office?

At the Law Office of Gary M. Landau, a law firm based in Coral Springs, Florida, we have over two decades of experience assisting residents across Florida with practice areas that include advance directives, living wills, healthcare surrogates, wills, and probate.

Our legal practice listens to your specific concerns and preferences before recommending the legal instruments that will protect your health and financial affairs. Our law firm offers:

  • Personalized Guidance: Every individual’s situation is different. We take the time to understand your needs and help you make practical, informed decisions about your healthcare surrogate designation.
  • Legally-Sound Documents: We comply fully with Florida law when crafting and executing your documents, avoiding errors that may otherwise render them invalid when you need them.
  • Comprehensive Estate Planning: Beyond the healthcare surrogate form, we draft living wills to communicate your preferences for end-of-life care, as well as wills, trusts, and durable powers of attorney, helping to give you peace of mind about your and your family’s future.
  • Convenience: With flexible options for in-person, phone, or Zoom meetings, we make the process as simple as possible.

Start Protecting Your Future Today with the Law Office of Gary M. Landau in South Florida

The best gift you can give your loved ones is clarity on who should make medical decisions when you cannot. Designating a healthcare surrogate authorizes a trusted individual to act as your advocate and fulfill your wishes.

Are you ready to explore estate planning with the assistance of a proficient attorney? Whether you’re seeking an advance directive that includes a health care surrogate form, a will, and/or a trust, our attorney offers personalized and informed guidance.

Have you been searching online for a “Florida advance directive,” “Florida estate planning lawyers,” or “estate planning lawyers near me?”

With more than 25 years of experience in our practice areas and countless satisfied clients, attorney Gary M. Landau and his team are uniquely positioned to help you with your probate and real estate title and closing needs in Coral Springs, Parkland, and throughout Florida. Whether you’re ready to probate a loved one’s estate or to write your own will, or if you are purchasing a home, have inherited a home, or want a closing agent to handle title insurance and all documents for your closing or refinancing, the LAW OFFICE OF GARY M. LANDAU, P.A. is ready to work with you.

Call our office at (954) 979-6566 or complete our online form today to schedule a free consultation. We work with our clients in person, over the phone, or on Zoom.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction.

LAW OFFICE OF GARY M. LANDAU, P.A.
7401 Wiles Road, Suite 204
Coral Springs, FL 33067
(954) 979-6566
https://garylandau.com/

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Frequently Asked Questions

A will is the simplest way to ensure that your funds, property and personal things will be distributed after your death the way you want them to. Even if you have very few assets, you will benefit from having a will. About half of all Americans die without a will (known in legal terminology as dying intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to state law. A will ensures that your assets will be given to family members or other beneficiaries you designate.

 

Having a will is doubly important if you have young children. One section of the will allows you to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children, who may not be the person you desire.

Many Florida residents have out-of-state wills, drawn up while they were still living among the hills of North Carolina or the hubbub of New York. If the will was valid according to your old state’s laws at the time you made it, it is still legal in Florida. However, if you are a Florida resident, you may benefit greatly by having a new will drawn up in Florida, because it will likely be more easily admitted to probate.

 

It is important to know that each state has its own requirements for what makes a will a legally binding document. For example, Florida doesn’t recognize handwritten wills that haven’t been witnessed (known as “holographic wills”), or oral wills not put into writing, even if other states okay them. There’s also the matter of Florida estate law. In this state, for example, your surviving spouse is entitled to 30 percent of your net probate estate, regardless of what you say in your will. The spouse may also have a “Homestead” interest in property you share here, even if you want your house to go to someone else. In fact, all real property owned in Florida will be subject to this state’s laws, even if you’re a snowbird maintaining a residence in the state where your will was drawn up. Other peculiarities also exist, which is why a Florida will could make things much easier for your heirs.

 

If you would like to have me review your current out-of-state will, I am happy to do so without charge. If it turns out to be in accordance with Florida state laws and procedures, you can continue to rely on it. If not, however, your heirs would rather you discover that now.

It is a good idea to re-read your will every few years to be sure it reflects up-to-date realities (you may not want to leave your heirloom to a niece you are no longer speaking to, nor have someone be named your child’s guardian if they have taken seriously ill since you drafted your will). It is especially important to reexamine your will if:

 

  • You have gotten married since it was last drafted;
  • You have made bequests to people who have fallen out of your favor or are no longer living (I recently updated the will of a man who had left everything to his first wife, who was long deceased), or you have not included people who are now dear to you;
  • You would like to change the person named as the personal representative of the estate. (Note: Florida law does not allow a nonresident of the state to serve in this position, unless it is an immediate family member or certain other relatives);
  • You have acquired pricey or sentimental items that are not accounted for in your will. Do note, though, that Florida law allows you to attach a separate personal property memorandum to your will, detailing who will get which specific items. This list can be changed whenever you want.

Perhaps I should answer this question with where not to store it: in a bank’s safety deposit box. Although it may seem logical to put this with your other important papers, it is often difficult for your heirs to gain access to the box once you die, since the box is sealed then and must be opened in the presence of a bank employee.

 

One good option is to leave your original will with the attorney who drafted it, making copies for your personal representative and other important relatives and letting them know who has the original. For my clients who prefer that I store their original will, I keep it in a fireproof will vault in my office, or in the vault in my bank.

 

As an alternative, you could store the will in a fireproof box or vault in your own home.

 

Wherever you store it, be sure to let your personal representative and other close relatives know where you have put it!

Probate is when the court oversees your assets and liabilities after your death. During probate, the court makes sure that your will is valid and acceptable; that all debts, bills, creditor’s claims, and taxes are paid from your estate’s assets; and that your remaining assets are distributed to your beneficiaries according to your will (or, if no will exists, by Florida law).

 

Probate usually does take longer than most beneficiaries would like. But in order to ensure that everyone with a right to a claim is included in the process, the court requires several steps. If the size and complexity of your estate are minimal, however, the entire process of probate can take as little as a few months. Larger estates that are subject to IRS estate taxes or those involving litigation on the part of creditors or heirs generally take longer, often one or more years.

 

To speed the process along for simple and small estates, the courts allow a shortened form of probate, known as “summary administration,” which requires much less paperwork and time.

A personal representative (PR) is a friend or relative, or an attorney or bank, who is put in charge of the estate until all matters regarding the probate are resolved. (In other states, this person is sometimes called an executor or administrator.) The job of the PR includes identifying all assets, searching for creditors and paying valid claims, filing required estate tax returns if the estate is large enough (the figure escalates over time, according to Congressional laws), coordinating with the probate court and attorneys, and overseeing the distribution of assets–all done under the guidance and assistance of a qualified attorney.

 

Serving as a PR is an important role, and such a person should be selected with care as to who is most willing and best able to serve in this position. By Florida law, your personal representative must be over 18 years of age, and be a blood relative, your spouse, the parent or child of your spouse, or a Florida resident.

Generally, no. If you co-own all property via such legal structures as “tenancy by the entirety” or by “joint tenancy with right of survivorship” the property immediately passed to you upon your spouse’s death. Proof of death is usually all that is needed to pass such jointly owned title for cars, stocks, and other personal property to the surviving spouse.

 

But if even one asset was held solely in the deceased person’s name, or any property is owned in the form of a “tenancy in common,” that estate will be required to go through probate. If the assets are limited, the shorter, simpler form of probate is generally all that is required.
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