When Can A Family Member Serve As A Surrogate Decision-Maker?

When it is time to make a plan for your end-of-life care, you may have numerous questions about what to include in your advance directive. One of many considerations is who to designate as a surrogate decision-maker or who will serve if no plan is in place. If you are ready to build or update your estate plan, consider contacting an experienced Florida estate planning attorney with Loughlin Law, P.A., by calling (561) 677-8384 to schedule a consultation.

What Is a Surrogate Decision-Maker?

A surrogate decision-maker is a person who is authorized to make healthcare decisions on behalf of another person who is unable to make his or her own decisions. This role is often given to an immediate family member, but a close friend or court-appointed guardian may also perform the duties of a surrogate. The surrogate decision-maker ensures that the medical treatment and care align with the wishes and best interests of the incapacitated person.

The responsibilities of this position can encompass a range of decisions from routine medical care to end-of-life choices. Because of the significance of the choices that must be made, many people choose to plan ahead by legally designating a trusted person as a surrogate decision-maker. This person will be one who is most familiar with the wishes of the principal, the one who makes the designation.

Understanding the Role of a Surrogate Decision-Maker

The role of a surrogate decision-maker is multifaceted and involves understanding the principal’s values, preferences, and previously expressed wishes. This understanding helps to guide the surrogate in making decisions that align with the principal’s desires, especially when normal communication is not possible due to incapacity.

The surrogate must also collaborate with healthcare providers to evaluate treatment options, weigh potential risks and benefits, and help determine the best course of action. This role requires not only a personal knowledge of the principal, with certain exceptions, but also clear communication skills, empathy, and a strong sense of responsibility.

What Are the Legal Requirements for a Surrogate Decision-Maker in Florida?

According to section 765.202 of the 2024 Florida Statutes, a principal may designate a surrogate to make decisions regarding the principal’s health care if he or she becomes incapacitated. This designation must be made in writing, typically using the Designation of Health Care Surrogate form, which has space to name a surrogate decision-maker and an alternate in case the first is unwilling or unable to fulfill the duties. The document must be signed by the principal and two witnesses. In the absence of a signed document naming a surrogate decision-maker, section 765.401 of the 2024 Florida Statutes establishes the following hierarchy of individuals who may serve:

• A court-appointed guardian, if one already exists for the patient
• The patient’s spouse
• Adult child or children (a majority decision) of the patient
• A parent of the patient
• The patient’s sibling or siblings (a majority decision)
• Another adult relative of the patient
• A close friend of the patient
• A social worker, if no one else can be found

If no one is available, willing, or competent to perform the duties of a surrogate in a previous priority group, someone from the next group may be selected. The surrogate must act in good faith to make decisions that are based on the patient’s known wishes or, if unknown, are in the patient’s best interests. A skilled Florida estate planning attorney with Loughlin Law, P.A., may be able to answer questions regarding the validity of a surrogate designation document or help with preparing new documents to protect your wishes in case of your incapacitation.

Situations That Require a Surrogate Decision-Maker

A surrogate decision-maker may never need to perform the assigned duties. However, if the principal becomes incapacitated and, therefore, unable to make informed healthcare decisions, the pre-established relationship of a surrogate will be called into action. Incapacity can occur due to various conditions, such as severe illness, cognitive impairment, or unconsciousness. Examples include patients with advanced dementia, those in a coma due to illness or injury, or those undergoing major surgery with complications. In such cases, the surrogate steps in to ensure that necessary medical decisions will be made promptly and appropriately, according to the patient’s wishes if possible.

How To Choose a Family Member To Serve As a Surrogate Decision-Maker

Choosing the right family member to serve as a surrogate decision-maker is crucial. The surrogate should be someone who understands the principal’s values and wishes, someone who can handle stressful situations, and someone who is capable of making difficult decisions.

When selecting a family member to serve as a surrogate decision-maker, it is important to discuss the matter with the family members and consider the following factors:

• The potential surrogate’s relationship with the principal
• The potential surrogate’s ability to communicate effectively with healthcare providers
• The potential surrogate’s willingness to take on the responsibility

Ethical and Emotional Considerations

The role of a surrogate decision-maker can be both ethically and emotionally challenging. Surrogates must balance respecting the patient’s autonomy with making decisions that promote his or her well-being. A surrogate may find the task difficult, especially when dealing with end-of-life care or conflicting opinions from family or friends.

Surrogates may experience emotional stress, guilt, or uncertainty. Neglecting personal physical and emotional health can impact a surrogate’s ability to make informed, compassionate decisions for the principal. When dealing with the potentially conflicting emotions involved in performing the duties of a surrogate, it may help to meet with a healthcare professional, counselor, or support group.

Contact a Lawyer With Your Estate Planning Questions Today

Surrogate decision-makers take on a responsibility that requires a clear understanding of the patient’s wishes. Performing the duties of a surrogate also requires clear communication with healthcare providers and the ability to make challenging decisions under pressure. Legal requirements and ethical implications are important factors to consider when searching for the right family member to designate in the event of incapacity. Open communication and preparation are essential for ensuring that your loved ones will provide care that aligns with your values and best interests. If you are ready to review or create your estate plan, consider consulting with an experienced Florida estate planning lawyer with Loughlin Law, P.A., by calling (561) 677-8384 today to learn more about what to include in your advance directive.