Thursday, January 28, 2016

Elder Law: Recent Amendment Allows Health Care Surrogates Authority to Act Immediately

By Jacqueline O. Ellett

       You don’t have to be a doctor to know the aging process varies significantly from one person to the next. Some aging individuals are first confronted with a physical disability, while others face cognitive impairment long before experiencing physical ailments. Just as the status of a physical disability may fluctuate, so too may the capacity of a person diagnosed with certain mental conditions, such as dementia. Before the legislature amended section 765.202, Florida Statutes, this past summer, a health care surrogate could not act on behalf of the principal until the principal was determined incapacitated. This hard and fast approach created headaches for those acting on behalf of principals with fluctuating capacity levels because it necessitated a redetermination of incapacity each time a surrogate needed to make a medical decision for the principal.

       But with the recent amendment to section 765.202, which went into effect on October 1, 2015, a principal may now give his or her health care surrogate immediate authority to act even though the principal may still have capacity. In the event a health care surrogate disagrees with a competent principal’s health care decision, the principal’s wishes control the outcome.

       The amended statute also provides that the principal may allow his or her health care surrogate to access and receive a competent principal’s medical records and health care information. This authority may be given to a surrogate exclusively or in conjunction with the power to make health care decisions for a competent principal. Granting the surrogate permission to access this information at all times allows the surrogate to stay apprised of developments in the principal’s condition. Moreover, advancing the principal’s medical information to the surrogate better prepares the surrogate to make difficult health care decisions on behalf of the principal.

       The amendment also benefits a principal who may be faced with navigating new or confusing treatment options. The legislature added a finding to the statute that plainly states that “some competent adults want a health care surrogate to assist them with making medical decisions.” As medical technology and treatments advance, certain principals will greatly benefit from a surrogate’s guidance when trying to determine the best course of action.

       The amended statute includes a sample format to present these options to the principal. It provides that the surrogate does not have authority to access the principal’s health care information or make health care decisions until the principal becomes incapacitated, unless the principal has initialed the box explicitly granting that power. Forms that do not specifically address the ability of a surrogate to access medical information or to make health care decisions for a competent principal effectively require the principal to be incapacitated before the surrogate can act.

       When a client arrives to execute his or her health care surrogate designation, the attorney should be prepared to discuss the options available to the client now. If asked by a client how to proceed with these elections, consider how each power operates in light of the circumstances unique to that client. An open dialogue with your client addressing these factors should guide him or her to an appropriate decision.