Estate Planning

What Are Florida Health Care Directives?

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You should be the only person who dictates what happens to your body when you are ill. An important tool for planning for incapacity and illness is the Designation of Health Care Surrogate in Florida.

What is a Designation of Health Care Surrogate?

The Florida Designation of Health Care Surrogate is a legal document that allows you to appoint a Surrogate to make your health care decisions when you are unable to do so. You can decide whether the document becomes effective immediately or in the event of incapacity. By executing a Heath Care Surrogate, you can provide a list of instructions to your Agent as to what you want regarding your health care and medical treatment. Some examples include:

  • Whether my Agent can execute a Do-Not-Resuscitate on my behalf;
  • Whether experimental produces should be used;
  • Assisted Living v. Home Health Care of some variation.

The Health Care Designation remains effective until you revoke it or dictate a termination date within the document.

Why do I need one?

If you are unable to make your medical and/or health care decisions due to incapacity, who is going to make your decisions for you? Your doctor? Someone at a hospital that you do not know? There are a myriad of doctor/patient privilege statutes and HIPPA compliance laws that prevent doctors from disclosing your personal and private medical information with third parties, unless you expressly authorize them to do so within your Health Care Directive.

What is a HIPAA Authorization?

The Health Insurance Portability and Accountability Act (HIPAA) of 1996 was created to protect sensitive patient information. It protects a patient’s medical file from being disclosed by providers such as doctors, nurses, and pharmacists. HIPAA language should be included in your Health Care Surrogate, Durable Power of Attorney and other estate planning documents.

When is “incapacity” determined?

Pursuant to Florida Statute 765.204, you retain control of making health care decisions until a physician determines that you lack capacity to make those said decisions. If a physician declares you to lack capacity, you can no longer execute legal documents, such as a Health Care Surrogate. If you don’t have one in place, you will find yourself in guardianship Court.

If a Florida Court determines you lack capacity, the Court will appoint a Guardian to make your health and medical decisions on your behalf. Guardianship litigation is expensive, and it will continue until your rights are restored or you die. It can be avoided by a properly executed estate plan, of which, that includes a Health Care Surrogate and Power of Attorney for finances.

What are the requirements of a or the Health Care Surrogate under Florida Statute 765.202?

  • You must be identified in the document
  • You must designate an Agent who is over the age of 18.
  • You must state when the document becomes effective and when it terminates
  • The documents must be executed in the presence of two witness who must also sign the document in your presence. The witnesses must be 18. You cannot serve as one of your witnesses.

If you don’t designate a Health Care Surrogate, Florida Statute 765.401 provides a list of persons who can make decisions on your behalf whether you want to or not. Said persons, in order of priority are as follows:

  • A Court Appointed Guardian
  • Your spouse
  • You adult children
  • Your parents
  • Your siblings
  • Other relatives

Problems occur when your family members do not agree. Emergency litigation can take place. Litigation is expensive and can be avoided by you creating an estate plan that includes a Health Care Directive.

Why Hire the Horton Law Group, P.A?

The principal partner at the Horton Law Group, P.A., Attorney Sommer C. Horton, has been drafting quality estate plans for 20 years. She is an experienced and aggressive estate litigator. She anticipates issues that may be the subject of litigation and she tries to dispel those issues when drafting estate plans, so litigation can be avoided in the future. She is highly regarded for her creative, strategic judgment and her uncanny ability to deliver persuasive legal arguments in the courtroom. She has a tremendous skill for being an aggressive advocate for her clients, while being one who understands and appreciates how trying litigation can be, thus, she is extremely sensitive to her clients’ needs.

Ms. Horton is passionate about the law and believes in seeking justice for her clients in an ethical and economic manner. Ms. Horton fights for each and every one of her clients – every step of the way. Ms. Horton will spend time with you to make sure you understand the law, understand your rights and she will draft your estate plans for you so that you and your family are protected. In addition, she can assist you with your business planning, estate planning and asset protection needs too.

The Horton Law Firm, P.A. is a boutique civil litigation law firm that only takes on a limited number of cases so that personal attention can be given to every client. Make the right call – schedule a free 30-minute consultation with Ms. Horton. You can make an appointment by calling 561-299-0018 or emailing

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