The Florida Health Care Surrogate Designation
§§ 765.202, 765.203, 765.302, 765.401
A health care surrogate is the person you name, in advance, to make medical decisions if you cannot make them yourself. Florida law treats this differently from a living will, which states your own end-of-life wishes, and differently again from a proxy, the default decision-maker the statute assigns when no surrogate was ever named.
What it is
Two documents get confused constantly, and the confusion matters. A health care surrogate designation, under § 765.202, is a written document naming a specific person — and typically an alternate — to make health care decisions on your behalf if your primary physician determines you lack the capacity to make them yourself. Unlike a living will, which states what you want to happen in specific end-of-life circumstances, a surrogate designation names who decides across the full range of medical situations, from a single surgery decision to long-term care placement.
A living will, governed by § 765.302, is a separate document expressing your own wishes about life-prolonging procedures if you are in a terminal condition, an end-stage condition, or a persistent vegetative state, as those terms are defined by Chapter 765 and confirmed by your attending and a second physician. It operates by stating your own directive; it does not, by itself, name a decision-maker for medical questions that fall outside those specific end-of-life circumstances.
The two documents work together rather than duplicating each other: the surrogate designation names who has authority to interpret and apply your wishes to real situations as they arise, and the living will gives that surrogate — and your physicians — a clear statement of your intent for the specific end-of-life scenarios it covers. A surrogate acting without a living will still has authority under § 765.401 to make decisions consistent with your known wishes and best interest, but the living will removes ambiguity for the most consequential decisions.
If you never name a surrogate, Florida does not leave the decision undetermined. Fla. Stat. § 765.401 establishes a statutory proxy — a specific priority order running from a court-appointed guardian, to a spouse, to an adult child (or a majority of adult children reasonably available), to a parent, and down a defined list — who steps in by operation of law. The proxy has real authority, but you have no say in who it is, and a family with multiple adult children in that tier can find themselves needing consensus among people who may not agree.
Who Should Have a Health Care Surrogate Designation
Every adult benefits from naming their own surrogate rather than defaulting to the statutory proxy — the designation matters most when:
- You want a specific person — not necessarily the person Florida's default proxy priority would select — making medical decisions on your behalf.
- You have a blended family, multiple adult children, or a family situation where the statutory proxy tier could produce disagreement among several equally ranked people.
- You want your surrogate to have HIPAA access and the authority to discuss your condition with providers before any decision point is reached, not only once incapacity is certified.
- You have specific wishes about treatment, quality of life, or end-of-life care that go beyond what a living will's defined terminal/end-stage/persistent-vegetative-state scenarios cover.
- You are unmarried, or your closest statutory-priority relative is not the person you would actually choose — the proxy statute does not account for an unmarried partner at all unless separately authorized.
Naming your own surrogate costs nothing beyond executing the document, and it replaces a statutory default you had no hand in choosing with the specific person you trust most.
Executing a Health Care Surrogate Designation
The document is short by design, but choosing and briefing the right person matters more than the paperwork itself.
- Step 1: Choose a primary surrogate and at least one alternate — someone willing to make difficult decisions under pressure, and ideally someone who lives close enough, or is reachable enough, to act quickly.
- Step 2: Decide whether to execute a companion living will stating your own wishes for terminal, end-stage, or persistent vegetative state situations, so your surrogate is applying your stated intent rather than guessing.
- Step 3: Execute the designation before two witnesses, per § 765.202 — no notary is required, unlike a will or power of attorney.
- Step 4: Include HIPAA authorization language so the surrogate can access medical information and speak with providers even before a capacity determination is made.
- Step 5: Give copies to the named surrogate and alternate, your primary care physician, and any hospital system you use regularly — a document your surrogate can't produce when needed doesn't help.
- Step 6: Talk to your surrogate directly about your wishes — the document names the decision-maker, but the conversation is what actually guides the decision.
Why work with an attorney
Modest in complexity but meaningful in coordination. The document itself is straightforward to execute, but it works best drafted alongside a living will that removes ambiguity for the hardest decisions, and alongside the Florida Durable Power of Attorney: Agent Authority so financial and medical authority are held by people you actually chose — rather than defaulting, for either role, to Florida's statutory priority list. We make sure the designation, the living will, and the HIPAA authorization are internally consistent and actually reach the providers and institutions that will need to act on them.
Frequently Asked Questions
What's the difference between a health care surrogate and a living will?
A health care surrogate is the person you name to make medical decisions on your behalf across any situation where you lack capacity. A living will is a separate document stating your own wishes about life-prolonging treatment specifically for terminal, end-stage, or persistent vegetative state conditions. Most Florida estate plans include both — the surrogate to decide, the living will to guide that decision for its most difficult scenarios.
What happens if I never name a health care surrogate?
Fla. Stat. § 765.401 supplies a default proxy through a statutory priority order — starting with a court-appointed guardian if one exists, then a spouse, then an adult child or a majority of adult children reasonably available, then a parent, and down a defined list. The proxy has real legal authority, but you have no control over who fills that role.
Does my health care surrogate need to be a family member?
No. You can name anyone you trust — a friend, an unmarried partner, or a family member who isn't necessarily the person Florida's statutory proxy order would select. This is one of the main reasons to execute a designation rather than rely on the default.
When does my health care surrogate's authority actually begin?
Generally when your attending physician determines, and documents in your medical record, that you lack the capacity to make your own health care decisions. Until that determination is made, you continue to make your own medical decisions.
Do I need a notary to sign a Florida health care surrogate designation?
No. Unlike a will or a durable power of attorney, Fla. Stat. § 765.202 requires only two witnesses, not a notary, for the designation to be valid.
Can my health care surrogate access my medical records before I lose capacity?
Only if the document includes HIPAA authorization language granting that access in advance. Without it, your surrogate may need to wait for the incapacity determination before providers will share information — a delay worth avoiding by including the authorization when the document is drafted.
The information on this page is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Florida law changes. Consult a licensed Florida attorney for guidance specific to your matter.
Choose who makes your medical decisions — before you need them to
Without a designation, Florida's default proxy order decides for you. Call (407) 843-0430 or schedule a consultation with our Orlando estate planning attorneys to name the person you actually trust.
Or text PROBATE to (407) 906-9507 for a faster response.
Yergey & Yergey, P.A. | 910 N. Fern Creek Avenue, Orlando, FL 32803
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