Florida Senate - 2015                                    SB 1224
       
       
        
       By Senator Joyner
       
       
       
       
       
       19-00673-15                                           20151224__
    1                        A bill to be entitled                      
    2         An act relating to health care representatives;
    3         amending s. 743.0645, F.S.; conforming provisions to
    4         changes made by the act; amending s. 765.101, F.S.;
    5         defining terms for purposes of provisions relating to
    6         health care advanced directives; revising definitions
    7         to conform to changes made by the act; amending s.
    8         765.102, F.S.; revising legislative intent to include
    9         reference to surrogate authority that is not dependent
   10         on a determination of incapacity; amending s. 765.104,
   11         F.S.; conforming provisions to changes made by the
   12         act; amending s. 765.105, F.S.; conforming provisions
   13         to changes made by the act; providing an exception for
   14         a patient who has designated a surrogate to make
   15         health care decisions and receive health information
   16         without a determination of incapacity being required;
   17         amending ss. 765.1103 and 765.1105, F.S.; conforming
   18         provisions to changes made by the act; amending s.
   19         765.202, F.S.; revising provisions relating to the
   20         designation of health care surrogates; amending s.
   21         765.203, F.S.; revising the suggested form for
   22         designation of a health care surrogate; creating s.
   23         765.2035, F.S.; providing for the designation of
   24         health care surrogates for minors; providing for
   25         designation of an alternate surrogate; providing for
   26         decisionmaking if neither the designated surrogate nor
   27         the designated alternate surrogate is willing, able,
   28         or reasonably available to make health care decisions
   29         for the minor on behalf of the minor’s principal;
   30         authorizing designation of a separate surrogate to
   31         consent to mental health treatment for a minor;
   32         providing that the health care surrogate authorized to
   33         make health care decisions for a minor is also the
   34         minor’s principal’s choice to make decisions regarding
   35         mental health treatment for the minor unless provided
   36         otherwise; providing that a written designation of a
   37         health care surrogate establishes a rebuttable
   38         presumption of clear and convincing evidence of the
   39         minor’s principal’s designation of the surrogate;
   40         creating s. 765.2038, F.S.; providing a suggested form
   41         for the designation of a health care surrogate for a
   42         minor; amending s. 765.204, F.S.; conforming
   43         provisions to changes made by the act; providing for
   44         notification of incapacity of a principal; amending s.
   45         765.205, F.S.; conforming provisions to changes made
   46         by the act; providing an additional requirement when a
   47         patient has designated a surrogate to make health care
   48         decisions and receive health information, or both,
   49         without a determination of incapacity being required;
   50         amending ss. 765.302, 765.303, 765.304, 765.306,
   51         765.404, and 765.516, F.S.; conforming provisions to
   52         changes made by the act; providing an effective date.
   53          
   54  Be It Enacted by the Legislature of the State of Florida:
   55  
   56         Section 1. Paragraph (b) of subsection (1) and paragraph
   57  (a) of subsection (2) of section 743.0645, Florida Statutes, are
   58  amended to read:
   59         743.0645 Other persons who may consent to medical care or
   60  treatment of a minor.—
   61         (1) As used in this section, the term:
   62         (b) “Medical care and treatment” includes ordinary and
   63  necessary medical and dental examination and treatment,
   64  including blood testing, preventive care including ordinary
   65  immunizations, tuberculin testing, and well-child care, but does
   66  not include surgery, general anesthesia, provision of
   67  psychotropic medications, or other extraordinary procedures for
   68  which a separate court order, health care surrogate designation
   69  under s. 765.2035 executed after September 30, 2015, power of
   70  attorney executed after July 1, 2001, but before October 1,
   71  2015, or informed consent as provided by law is required, except
   72  as provided in s. 39.407(3).
   73         (2) Any of the following persons, in order of priority
   74  listed, may consent to the medical care or treatment of a minor
   75  who is not committed to the Department of Children and Families
   76  or the Department of Juvenile Justice or in their custody under
   77  chapter 39, chapter 984, or chapter 985 when, after a reasonable
   78  attempt, a person who has the power to consent as otherwise
   79  provided by law cannot be contacted by the treatment provider
   80  and actual notice to the contrary has not been given to the
   81  provider by that person:
   82         (a) A health care surrogate designated under s. 765.2035
   83  after September 30, 2015, or a person who possesses a power of
   84  attorney to provide medical consent for the minor executed
   85  before October 1, 2015. A health care surrogate designation
   86  under s. 765.2035 executed after September 30, 2015, and a power
   87  of attorney executed after July 1, 2001, but before October 1,
   88  2015, to provide medical consent for a minor includes the power
   89  to consent to medically necessary surgical and general
   90  anesthesia services for the minor unless such services are
   91  excluded by the individual executing the health care surrogate
   92  designation for a minor or power of attorney.
   93  
   94  There shall be maintained in the treatment provider’s records of
   95  the minor documentation that a reasonable attempt was made to
   96  contact the person who has the power to consent.
   97         Section 2. Section 765.101, Florida Statutes, is amended to
   98  read:
   99         765.101 Definitions.—As used in this chapter:
  100         (1) “Advance directive” means a witnessed written document
  101  or oral statement in which instructions are given by a principal
  102  or in which the principal’s desires are expressed concerning any
  103  aspect of the principal’s health care or health information, and
  104  includes, but is not limited to, the designation of a health
  105  care surrogate, a living will, or an anatomical gift made
  106  pursuant to part V of this chapter.
  107         (2) “Attending physician” means the primary physician who
  108  has responsibility for the treatment and care of the patient.
  109         (2)(3) “Close personal friend” means any person 18 years of
  110  age or older who has exhibited special care and concern for the
  111  patient, and who presents an affidavit to the health care
  112  facility or to the attending or treating physician stating that
  113  he or she is a friend of the patient; is willing and able to
  114  become involved in the patient’s health care; and has maintained
  115  such regular contact with the patient so as to be familiar with
  116  the patient’s activities, health, and religious or moral
  117  beliefs.
  118         (3)(4) “End-stage condition” means an irreversible
  119  condition that is caused by injury, disease, or illness which
  120  has resulted in progressively severe and permanent
  121  deterioration, and which, to a reasonable degree of medical
  122  probability, treatment of the condition would be ineffective.
  123         (4) “Health care” means care, services, or supplies related
  124  to the health of an individual and includes, but is not limited
  125  to, preventive, diagnostic, therapeutic, rehabilitative,
  126  maintenance, or palliative care, and counseling, service,
  127  assessment, or procedure with respect to the individual’s
  128  physical or mental condition or functional status or that affect
  129  the structure or function of the individual’s body.
  130         (5) “Health care decision” means:
  131         (a) Informed consent, refusal of consent, or withdrawal of
  132  consent to any and all health care, including life-prolonging
  133  procedures and mental health treatment, unless otherwise stated
  134  in the advance directives.
  135         (b) The decision to apply for private, public, government,
  136  or veterans’ benefits to defray the cost of health care.
  137         (c) The right of access to health information all records
  138  of the principal reasonably necessary for a health care
  139  surrogate or proxy to make decisions involving health care and
  140  to apply for benefits.
  141         (d) The decision to make an anatomical gift pursuant to
  142  part V of this chapter.
  143         (6) “Health care facility” means a hospital, nursing home,
  144  hospice, home health agency, or health maintenance organization
  145  licensed in this state, or any facility subject to part I of
  146  chapter 394.
  147         (7) “Health care provider” or “provider” means any person
  148  licensed, certified, or otherwise authorized by law to
  149  administer health care in the ordinary course of business or
  150  practice of a profession.
  151         (8) “Health information” means any information, whether
  152  oral or recorded in any form or medium, as defined in 45 C.F.R.
  153  s. 160.103 and the Health Insurance Portability and
  154  Accountability Act of 1996, 42 U.S.C. s. 1320d, as amended,
  155  that:
  156         (a) Is created or received by a health care provider,
  157  health care facility, health plan, public health authority,
  158  employer, life insurer, school or university, or health care
  159  clearinghouse; and
  160         (b) Relates to the past, present, or future physical or
  161  mental health or condition of the principal; the provision of
  162  health care to the principal; or the past, present, or future
  163  payment for the provision of health care to the principal.
  164         (9)(8) “Incapacity” or “incompetent” means the patient is
  165  physically or mentally unable to communicate a willful and
  166  knowing health care decision. For the purposes of making an
  167  anatomical gift, the term also includes a patient who is
  168  deceased.
  169         (10)(9) “Informed consent” means consent voluntarily given
  170  by a person after a sufficient explanation and disclosure of the
  171  subject matter involved to enable that person to have a general
  172  understanding of the treatment or procedure and the medically
  173  acceptable alternatives, including the substantial risks and
  174  hazards inherent in the proposed treatment or procedures, and to
  175  make a knowing health care decision without coercion or undue
  176  influence.
  177         (11)(10) “Life-prolonging procedure” means any medical
  178  procedure, treatment, or intervention, including artificially
  179  provided sustenance and hydration, which sustains, restores, or
  180  supplants a spontaneous vital function. The term does not
  181  include the administration of medication or performance of
  182  medical procedure, when such medication or procedure is deemed
  183  necessary to provide comfort care or to alleviate pain.
  184         (12)(11) “Living will” or “declaration” means:
  185         (a) A witnessed document in writing, voluntarily executed
  186  by the principal in accordance with s. 765.302; or
  187         (b) A witnessed oral statement made by the principal
  188  expressing the principal’s instructions concerning life
  189  prolonging procedures.
  190         (13) “Minor’s principal” means a principal who is a natural
  191  guardian as defined in s. 744.301(1); legal custodian; or,
  192  subject to chapter 744, legal guardian of the person of a minor.
  193         (14)(12) “Persistent vegetative state” means a permanent
  194  and irreversible condition of unconsciousness in which there is:
  195         (a) The absence of voluntary action or cognitive behavior
  196  of any kind.
  197         (b) An inability to communicate or interact purposefully
  198  with the environment.
  199         (15)(13) “Physician” means a person licensed pursuant to
  200  chapter 458 or chapter 459.
  201         (16) “Primary physician” means a physician designated by an
  202  individual or the individual’s surrogate, proxy, or agent under
  203  a durable power of attorney as provided in chapter 709, to have
  204  primary responsibility for the individual’s health care or, in
  205  the absence of a designation or if the designated physician is
  206  not reasonably available, a physician who undertakes the
  207  responsibility.
  208         (17)(14) “Principal” means a competent adult executing an
  209  advance directive and on whose behalf health care decisions are
  210  to be made or health care information is to be received, or
  211  both.
  212         (18)(15) “Proxy” means a competent adult who has not been
  213  expressly designated to make health care decisions for a
  214  particular incapacitated individual, but who, nevertheless, is
  215  authorized pursuant to s. 765.401 to make health care decisions
  216  for such individual.
  217         (19) “Reasonably available” means readily able to be
  218  contacted without undue effort and willing and able to act in a
  219  timely manner considering the urgency of the patient’s health
  220  care needs.
  221         (20)(16) “Surrogate” means any competent adult expressly
  222  designated by a principal to make health care decisions and to
  223  receive health information. The principal may stipulate whether
  224  the authority of the surrogate to make health care decisions or
  225  to receive health information is exercisable immediately without
  226  the necessity for a determination of incapacity or only upon the
  227  principal’s incapacity as provided in s. 765.204 on behalf of
  228  the principal upon the principal’s incapacity.
  229         (21)(17) “Terminal condition” means a condition caused by
  230  injury, disease, or illness from which there is no reasonable
  231  medical probability of recovery and which, without treatment,
  232  can be expected to cause death.
  233         Section 3. Present subsections (3) through (6) of section
  234  765.102, Florida Statutes, are renumbered as subsections (4)
  235  through (7), respectively, present subsections (2) and (3) are
  236  amended, and a new subsection (3) is added to that section, to
  237  read:
  238         765.102 Legislative findings and intent.—
  239         (2) To ensure that such right is not lost or diminished by
  240  virtue of later physical or mental incapacity, the Legislature
  241  intends that a procedure be established to allow a person to
  242  plan for incapacity by executing a document or orally
  243  designating another person to direct the course of his or her
  244  health care or receive his or her health information, or both,
  245  medical treatment upon his or her incapacity. Such procedure
  246  should be less expensive and less restrictive than guardianship
  247  and permit a previously incapacitated person to exercise his or
  248  her full right to make health care decisions as soon as the
  249  capacity to make such decisions has been regained.
  250         (3) The Legislature also recognizes that some competent
  251  adults may want to receive immediate assistance in making health
  252  care decisions or accessing health information, or both, without
  253  a determination of incapacity. The Legislature intends that a
  254  procedure be established to allow a person to designate a
  255  surrogate to make health care decisions or receive health
  256  information, or both, without the necessity for a determination
  257  of incapacity under this chapter.
  258         (4)(3) The Legislature recognizes that for some the
  259  administration of life-prolonging medical procedures may result
  260  in only a precarious and burdensome existence. In order to
  261  ensure that the rights and intentions of a person may be
  262  respected even after he or she is no longer able to participate
  263  actively in decisions concerning himself or herself, and to
  264  encourage communication among such patient, his or her family,
  265  and his or her physician, the Legislature declares that the laws
  266  of this state recognize the right of a competent adult to make
  267  an advance directive instructing his or her physician to
  268  provide, withhold, or withdraw life-prolonging procedures, or to
  269  designate another to make the health care treatment decision for
  270  him or her in the event that such person should become
  271  incapacitated and unable to personally direct his or her health
  272  medical care.
  273         Section 4. Subsection (1) of section 765.104, Florida
  274  Statutes, is amended to read:
  275         765.104 Amendment or revocation.—
  276         (1) An advance directive or designation of a surrogate may
  277  be amended or revoked at any time by a competent principal:
  278         (a) By means of a signed, dated writing;
  279         (b) By means of the physical cancellation or destruction of
  280  the advance directive by the principal or by another in the
  281  principal’s presence and at the principal’s direction;
  282         (c) By means of an oral expression of intent to amend or
  283  revoke; or
  284         (d) By means of a subsequently executed advance directive
  285  that is materially different from a previously executed advance
  286  directive.
  287         Section 5. Section 765.105, Florida Statutes, is amended to
  288  read:
  289         765.105 Review of surrogate or proxy’s decision.—
  290         (1) The patient’s family, the health care facility, or the
  291  attending physician, or any other interested person who may
  292  reasonably be expected to be directly affected by the surrogate
  293  or proxy’s decision concerning any health care decision may seek
  294  expedited judicial intervention pursuant to rule 5.900 of the
  295  Florida Probate Rules, if that person believes:
  296         (a)(1) The surrogate or proxy’s decision is not in accord
  297  with the patient’s known desires or the provisions of this
  298  chapter;
  299         (b)(2) The advance directive is ambiguous, or the patient
  300  has changed his or her mind after execution of the advance
  301  directive;
  302         (c)(3) The surrogate or proxy was improperly designated or
  303  appointed, or the designation of the surrogate is no longer
  304  effective or has been revoked;
  305         (d)(4) The surrogate or proxy has failed to discharge
  306  duties, or incapacity or illness renders the surrogate or proxy
  307  incapable of discharging duties;
  308         (e)(5) The surrogate or proxy has abused his or her powers;
  309  or
  310         (f)(6) The patient has sufficient capacity to make his or
  311  her own health care decisions.
  312         (2) This section does not apply to a patient who is not
  313  incapacitated and who has designated a surrogate who has
  314  immediate authority to make health care decisions and receive
  315  health information, or both, on behalf of the patient.
  316         Section 6. Subsection (1) of section 765.1103, Florida
  317  Statutes, is amended to read:
  318         765.1103 Pain management and palliative care.—
  319         (1) A patient shall be given information concerning pain
  320  management and palliative care when he or she discusses with the
  321  attending or treating physician, or such physician’s designee,
  322  the diagnosis, planned course of treatment, alternatives, risks,
  323  or prognosis for his or her illness. If the patient is
  324  incapacitated, the information shall be given to the patient’s
  325  health care surrogate or proxy, court-appointed guardian as
  326  provided in chapter 744, or attorney in fact under a durable
  327  power of attorney as provided in chapter 709. The court
  328  appointed guardian or attorney in fact must have been delegated
  329  authority to make health care decisions on behalf of the
  330  patient.
  331         Section 7. Section 765.1105, Florida Statutes, is amended
  332  to read:
  333         765.1105 Transfer of a patient.—
  334         (1) A health care provider or facility that refuses to
  335  comply with a patient’s advance directive, or the treatment
  336  decision of his or her surrogate or proxy, shall make reasonable
  337  efforts to transfer the patient to another health care provider
  338  or facility that will comply with the directive or treatment
  339  decision. This chapter does not require a health care provider
  340  or facility to commit any act which is contrary to the
  341  provider’s or facility’s moral or ethical beliefs, if the
  342  patient:
  343         (a) Is not in an emergency condition; and
  344         (b) Has received written information upon admission
  345  informing the patient of the policies of the health care
  346  provider or facility regarding such moral or ethical beliefs.
  347         (2) A health care provider or facility that is unwilling to
  348  carry out the wishes of the patient or the treatment decision of
  349  his or her surrogate or proxy because of moral or ethical
  350  beliefs must within 7 days either:
  351         (a) Transfer the patient to another health care provider or
  352  facility. The health care provider or facility shall pay the
  353  costs for transporting the patient to another health care
  354  provider or facility; or
  355         (b) If the patient has not been transferred, carry out the
  356  wishes of the patient or the patient’s surrogate or proxy,
  357  unless the provisions of s. 765.105 applies apply.
  358         Section 8. Subsections (1), (3), and (4) of section
  359  765.202, Florida Statutes, are amended, present subsections (6)
  360  and (7) are renumbered as subsections (7) and (8), respectively,
  361  and a new subsection (6) is added to that section, to read:
  362         765.202 Designation of a health care surrogate.—
  363         (1) A written document designating a surrogate to make
  364  health care decisions for a principal or receive health
  365  information on behalf of a principal, or both, shall be signed
  366  by the principal in the presence of two subscribing adult
  367  witnesses. A principal unable to sign the instrument may, in the
  368  presence of witnesses, direct that another person sign the
  369  principal’s name as required herein. An exact copy of the
  370  instrument shall be provided to the surrogate.
  371         (3) A document designating a health care surrogate may also
  372  designate an alternate surrogate provided the designation is
  373  explicit. The alternate surrogate may assume his or her duties
  374  as surrogate for the principal if the original surrogate is not
  375  willing, able, or reasonably available unwilling or unable to
  376  perform his or her duties. The principal’s failure to designate
  377  an alternate surrogate shall not invalidate the designation of a
  378  surrogate.
  379         (4) If neither the designated surrogate nor the designated
  380  alternate surrogate is willing, able, or reasonably available
  381  able or willing to make health care decisions on behalf of the
  382  principal and in accordance with the principal’s instructions,
  383  the health care facility may seek the appointment of a proxy
  384  pursuant to part IV.
  385         (6) A principal may stipulate in the document that the
  386  authority of the surrogate to receive health information or make
  387  health care decisions or both is exercisable immediately without
  388  the necessity for a determination of incapacity as provided in
  389  s. 765.204.
  390         Section 9. Section 765.203, Florida Statutes, is amended to
  391  read:
  392         765.203 Suggested form of designation.—A written
  393  designation of a health care surrogate executed pursuant to this
  394  chapter may, but need not be, in the following form:
  395  
  396                DESIGNATION OF HEALTH CARE SURROGATE               
  397  
  398  I, ....(name)...., designate as my health care surrogate under
  399  s. 765.202, Florida Statutes:
  400  
  401  Name: ...(name of health care surrogate)...
  402  Address: ...(address)...
  403  Phone: ...(telephone)...
  404  
  405  If my health care surrogate is not willing, able, or reasonably
  406  available to perform his or her duties, I designate as my
  407  alternate health care surrogate:
  408  
  409  Name: ...(name of alternate health care surrogate)...
  410  Address: ...(address)...
  411  Phone: ...(telephone)...
  412  
  413                    INSTRUCTIONS FOR HEALTH CARE                   
  414  I authorize my health care surrogate to:
  415         ...(Initial here)... Receive any of my health information,
  416  whether oral or recorded in any form or medium, that:
  417         1. Is created or received by a health care provider, health
  418  care facility, health plan, public health authority, employer,
  419  life insurer, school or university, or health care
  420  clearinghouse; and
  421         2. Relates to my past, present, or future physical or
  422  mental health or condition; the provision of health care to me;
  423  or the past, present, or future payment for the provision of
  424  health care to me.
  425  I further authorize my health care surrogate to:
  426         ...(Initial here)... Make all health care decisions for me,
  427  which means he or she has the authority to:
  428         1. Provide informed consent, refusal of consent, or
  429  withdrawal of consent to any and all of my health care,
  430  including life-prolonging procedures.
  431         2. Apply on my behalf for private, public, government, or
  432  veterans’ benefits to defray the cost of health care.
  433         3. Access my health information reasonably necessary for
  434  the health care surrogate to make decisions involving my health
  435  care and to apply for benefits for me.
  436         4. Decide to make an anatomical gift pursuant to part V of
  437  chapter 765, Florida Statutes.
  438  ...(Initial here)... Specific instructions and restrictions:....
  439  ................................................................
  440  ................................................................
  441  
  442  To the extent I am capable of understanding, my health care
  443  surrogate shall keep me reasonably informed of all decisions
  444  that he or she has made on my behalf and matters concerning me.
  445  
  446  THIS HEALTH CARE SURROGATE DESIGNATION IS NOT AFFECTED BY MY
  447  SUBSEQUENT INCAPACITY EXCEPT AS PROVIDED IN CHAPTER 765, FLORIDA
  448  STATUTES.
  449  
  450  MY HEALTH CARE SURROGATE’S AUTHORITY BECOMES EFFECTIVE WHEN MY
  451  PRIMARY PHYSICIAN DETERMINES THAT I AM UNABLE TO MAKE MY OWN
  452  HEALTH CARE DECISIONS UNLESS I INITIAL EITHER OR BOTH OF THE
  453  FOLLOWING BOXES:
  454  
  455  IF I INITIAL THIS BOX [ ], MY HEALTH CARE SURROGATE’S AUTHORITY
  456  TO RECEIVE MY HEALTH INFORMATION TAKES EFFECT IMMEDIATELY.
  457  
  458  IF I INITIAL THIS BOX [ ], MY HEALTH CARE SURROGATE’S AUTHORITY
  459  TO MAKE HEALTH CARE DECISIONS FOR ME TAKES EFFECT IMMEDIATELY.
  460  
  461  SIGNATURES: Sign and date the form here:
  462  ...(date)... ...(sign your name)...
  463  ...(address)... ...(print your name)...
  464  ...(city)... ...(state)...
  465  
  466  SIGNATURES OF WITNESSES:
  467  First witness					Second witness
  468  ...(print name)...				...(print name)...
  469  ...(address)...				...(address)...
  470  ...(city)...					...(city)...
  471  ...(state)...					...(state)...
  472  ...(signature of witness)...		...(signature of witness)...
  473  ...(date)...					...(date)...
  474  Name:....(Last)....(First)....(Middle Initial)....
  475         In the event that I have been determined to be
  476  incapacitated to provide informed consent for medical treatment
  477  and surgical and diagnostic procedures, I wish to designate as
  478  my surrogate for health care decisions:
  479  
  480  Name:...........................................................
  481  Address:........................................................
  482  ........................  Zip Code:........
  483  Phone:................
  484         If my surrogate is unwilling or unable to perform his or
  485  her duties, I wish to designate as my alternate surrogate:
  486  Name:...........................................................
  487  Address:........................................................
  488  ........................  Zip Code:........
  489  Phone:................
  490         I fully understand that this designation will permit my
  491  designee to make health care decisions and to provide, withhold,
  492  or withdraw consent on my behalf; to apply for public benefits
  493  to defray the cost of health care; and to authorize my admission
  494  to or transfer from a health care facility.
  495  Additional instructions (optional):.............................
  496  ................................................................
  497  ................................................................
  498  ................................................................
  499         I further affirm that this designation is not being made as
  500  a condition of treatment or admission to a health care facility.
  501  I will notify and send a copy of this document to the following
  502  persons other than my surrogate, so they may know who my
  503  surrogate is.
  504  Name:...........................................................
  505  Name:...........................................................
  506  ................................................................
  507  ................................................................
  508  Signed:.........................................................
  509  Date:...........................................................
  510  Witnesses:1.	                                                      
  511    2.	                                                              
  512         Section 10. Section 765.2035, Florida Statutes, is created
  513  to read:
  514         765.2035 Designation of a health care surrogate for a
  515  minor.—
  516         (1) A natural guardian as defined in s. 744.301(1), legal
  517  custodian, or legal guardian of the person of a minor may
  518  designate a competent adult to serve as a surrogate to make
  519  health care decisions for the minor. Such designation shall be
  520  made by a written document signed by the minor’s principal in
  521  the presence of two subscribing adult witnesses. If a minor’s
  522  principal is unable to sign the instrument, the principal may,
  523  in the presence of witnesses, direct that another person sign
  524  the minor’s principal’s name as required by this subsection. An
  525  exact copy of the instrument shall be provided to the surrogate.
  526         (2) The person designated as surrogate may not act as
  527  witness to the execution of the document designating the health
  528  care surrogate.
  529         (3) A document designating a health care surrogate may also
  530  designate an alternate surrogate; however, such designation must
  531  be explicit. The alternate surrogate may assume his or her
  532  duties as surrogate if the original surrogate is not willing,
  533  able, or reasonably available to perform his or her duties. The
  534  minor’s principal’s failure to designate an alternate surrogate
  535  does not invalidate the designation.
  536         (4) If neither the designated surrogate or the designated
  537  alternate surrogate is willing, able, or reasonably available to
  538  make health care decisions for the minor on behalf of the
  539  minor’s principal and in accordance with the minor’s principal’s
  540  instructions, s. 743.0645(2) shall apply as if no surrogate had
  541  been designated.
  542         (5) A natural guardian as defined in s. 744.301(1), legal
  543  custodian, or legal guardian of the person of a minor may
  544  designate a separate surrogate to consent to mental health
  545  treatment for the minor. However, unless the document
  546  designating the health care surrogate expressly states
  547  otherwise, the court shall assume that the health care surrogate
  548  who is authorized to make health care decisions for a minor
  549  under this chapter is also the minor’s principal’s choice to
  550  make decisions regarding mental health treatment for the minor.
  551         (6) Unless the document states a time of termination, the
  552  designation shall remain in effect until revoked by the minor’s
  553  principal. An otherwise valid designation of a surrogate for a
  554  minor shall not be invalid solely because it was made before the
  555  birth of the minor.
  556         (7) A written designation of a health care surrogate
  557  executed pursuant to this section establishes a rebuttable
  558  presumption of clear and convincing evidence of the minor’s
  559  principal’s designation of the surrogate and becomes effective
  560  pursuant to s. 743.0645(2)(a).
  561         Section 11.  Section 765.2038, Florida Statutes, is created
  562  to read:
  563         765.2038 Designation of health care surrogate for a minor;
  564  suggested form.—A written designation of a health care surrogate
  565  for a minor executed pursuant to this chapter may, BUT NEED NOT,
  566  be, in the following form:
  567                DESIGNATION OF HEALTH CARE SURROGATE               
  568                              FOR MINOR                            
  569         I/We, _...(name/names)..., the [....] natural guardian(s)
  570  as defined in s. 744.301(1), Florida Statutes; [....] legal
  571  custodian(s); [....] legal guardian(s) [check one] of the
  572  following minor(s):
  573  
  574  .......................................;
  575  .......................................;
  576  .......................................,
  577  
  578  pursuant to s. 765.2035, Florida Statutes, designate the
  579  following person to act as my/our surrogate for health care
  580  decisions for such minor(s) in the event that I/we am/are not
  581  able or reasonably available to provide consent for medical
  582  treatment and surgical and diagnostic procedures:
  583  
  584  Name: ...(name)...
  585  Address: ...(address)...
  586  Zip Code: ...(zip code)...
  587  Phone: ...(telephone)...
  588  
  589         If my/our designated health care surrogate for a minor is
  590  not willing, able, or reasonably available to perform his or her
  591  duties, I/we designate the following person as my/our alternate
  592  health care surrogate for a minor:
  593  
  594  Name: ...(name)...
  595  Address: ...(address)...
  596  Zip Code: ...(zip code)...
  597  Phone: ...(telephone)...
  598  
  599         I/We authorize and request all physicians, hospitals, or
  600  other providers of medical services to follow the instructions
  601  of my/our surrogate or alternate surrogate, as the case may be,
  602  at any time and under any circumstances whatsoever, with regard
  603  to medical treatment and surgical and diagnostic procedures for
  604  a minor, provided the medical care and treatment of any minor is
  605  on the advice of a licensed physician.
  606  
  607         I/We fully understand that this designation will permit
  608  my/our designee to make health care decisions for a minor and to
  609  provide, withhold, or withdraw consent on my/our behalf, to
  610  apply for public benefits to defray the cost of health care, and
  611  to authorize the admission or transfer of a minor to or from a
  612  health care facility.
  613  
  614         I/We will notify and send a copy of this document to the
  615  following person(s) other than my/our surrogate, so that they
  616  may know the identity of my/our surrogate:
  617  
  618  Name: ...(name)...
  619  Name: ...(name)...
  620  
  621  Signed: ...(signature)...
  622  Date: ...(date)...
  623  
  624  WITNESSES:
  625  1. ...(witness)...
  626  2. ...(witness)...
  627         Section 12. Section 765.204, Florida Statutes, is amended
  628  to read:
  629         765.204 Capacity of principal; procedure.—
  630         (1) A principal is presumed to be capable of making health
  631  care decisions for herself or himself unless she or he is
  632  determined to be incapacitated. Incapacity may not be inferred
  633  from the person’s voluntary or involuntary hospitalization for
  634  mental illness or from her or his intellectual disability.
  635         (2) If a principal’s capacity to make health care decisions
  636  for herself or himself or provide informed consent is in
  637  question, the attending physician shall evaluate the principal’s
  638  capacity and, if the physician concludes that the principal
  639  lacks capacity, enter that evaluation in the principal’s medical
  640  record. If the attending physician has a question as to whether
  641  the principal lacks capacity, another physician shall also
  642  evaluate the principal’s capacity, and if the second physician
  643  agrees that the principal lacks the capacity to make health care
  644  decisions or provide informed consent, the health care facility
  645  shall enter both physician’s evaluations in the principal’s
  646  medical record. If the principal has designated a health care
  647  surrogate or has delegated authority to make health care
  648  decisions to an attorney in fact under a durable power of
  649  attorney, the health care facility shall notify such surrogate
  650  or attorney in fact in writing that her or his authority under
  651  the instrument has commenced, as provided in chapter 709 or s.
  652  765.203.
  653         (3) The surrogate’s authority shall commence upon a
  654  determination under subsection (2) that the principal lacks
  655  capacity, and such authority shall remain in effect until a
  656  determination that the principal has regained such capacity.
  657  Upon commencement of the surrogate’s authority, a surrogate who
  658  is not the principal’s spouse shall notify the principal’s
  659  spouse or adult children of the principal’s designation of the
  660  surrogate. In the event the attending physician determines that
  661  the principal has regained capacity, the authority of the
  662  surrogate shall cease, but shall recommence if the principal
  663  subsequently loses capacity as determined pursuant to this
  664  section.
  665         (4) Notwithstanding subsections (2) and (3), if the
  666  principal has designated a health care surrogate and has
  667  stipulated that the authority of the surrogate is to take effect
  668  immediately, or has appointed an agent under a durable power of
  669  attorney as provided in chapter 709 to make health care
  670  decisions for the principal, the health care facility shall
  671  notify such surrogate or agent in writing when a determination
  672  of incapacity has been entered into the principal’s medical
  673  record.
  674         (5)(4) A determination made pursuant to this section that a
  675  principal lacks capacity to make health care decisions shall not
  676  be construed as a finding that a principal lacks capacity for
  677  any other purpose.
  678         (6)(5)If In the event the surrogate is required to consent
  679  to withholding or withdrawing life-prolonging procedures, the
  680  provisions of part III applies shall apply.
  681         Section 13. Section 765.205, Florida Statutes, is amended
  682  to read:
  683         765.205 Responsibility of the surrogate.—
  684         (1) The surrogate, in accordance with the principal’s
  685  instructions, unless such authority has been expressly limited
  686  by the principal, shall:
  687         (a) Have authority to act for the principal and to make all
  688  health care decisions for the principal during the principal’s
  689  incapacity.
  690         (b) Consult expeditiously with appropriate health care
  691  providers to provide informed consent, and make only health care
  692  decisions for the principal which he or she believes the
  693  principal would have made under the circumstances if the
  694  principal were capable of making such decisions. If there is no
  695  indication of what the principal would have chosen, the
  696  surrogate may consider the patient’s best interest in deciding
  697  that proposed treatments are to be withheld or that treatments
  698  currently in effect are to be withdrawn.
  699         (c) Provide written consent using an appropriate form
  700  whenever consent is required, including a physician’s order not
  701  to resuscitate.
  702         (d) Be provided access to the appropriate health
  703  information medical records of the principal.
  704         (e) Apply for public benefits, such as Medicare and
  705  Medicaid, for the principal and have access to information
  706  regarding the principal’s income and assets and banking and
  707  financial records to the extent required to make application. A
  708  health care provider or facility may not, however, make such
  709  application a condition of continued care if the principal, if
  710  capable, would have refused to apply.
  711         (2) The surrogate may authorize the release of health
  712  information and medical records to appropriate persons to ensure
  713  the continuity of the principal’s health care and may authorize
  714  the admission, discharge, or transfer of the principal to or
  715  from a health care facility or other facility or program
  716  licensed under chapter 400 or chapter 429.
  717         (3) Notwithstanding subsections (1) and (2), if the
  718  principal has designated a health care surrogate and has
  719  stipulated that the authority of the surrogate is to take effect
  720  immediately, or has appointed an agent under a durable power of
  721  attorney as provided in chapter 709 to make health care
  722  decisions for the principal, the fundamental right of self
  723  determination of every competent adult regarding his or her
  724  health care decisions shall be controlling. Before implementing
  725  a health care decision made for a principal who is not
  726  incapacitated, the primary physician, another physician, a
  727  health care provider, or a health care facility, if possible,
  728  must promptly communicate to the principal the decision made and
  729  the identity of the person making the decision.
  730         (4)(3) If, after the appointment of a surrogate, a court
  731  appoints a guardian, the surrogate shall continue to make health
  732  care decisions for the principal, unless the court has modified
  733  or revoked the authority of the surrogate pursuant to s.
  734  744.3115. The surrogate may be directed by the court to report
  735  the principal’s health care status to the guardian.
  736         Section 14. Subsection (2) of section 765.302, Florida
  737  Statutes, is amended to read:
  738         765.302 Procedure for making a living will; notice to
  739  physician.—
  740         (2) It is the responsibility of the principal to provide
  741  for notification to her or his attending or treating physician
  742  that the living will has been made. In the event the principal
  743  is physically or mentally incapacitated at the time the
  744  principal is admitted to a health care facility, any other
  745  person may notify the physician or health care facility of the
  746  existence of the living will. A An attending or treating
  747  physician or health care facility which is so notified shall
  748  promptly make the living will or a copy thereof a part of the
  749  principal’s medical records.
  750         Section 15. Subsection (1) of section 765.303, Florida
  751  Statutes, is amended to read:
  752         765.303 Suggested form of a living will.—
  753         (1) A living will may, BUT NEED NOT, be in the following
  754  form:
  755                             Living Will                           
  756         Declaration made this .... day of ...., ...(year)..., I,
  757  ........, willfully and voluntarily make known my desire that my
  758  dying not be artificially prolonged under the circumstances set
  759  forth below, and I do hereby declare that, if at any time I am
  760  incapacitated and
  761         ...(initial)... I have a terminal condition
  762         or ...(initial)... I have an end-stage condition
  763         or ...(initial)... I am in a persistent vegetative state
  764  
  765  and if my attending or treating physician and another consulting
  766  physician have determined that there is no reasonable medical
  767  probability of my recovery from such condition, I direct that
  768  life-prolonging procedures be withheld or withdrawn when the
  769  application of such procedures would serve only to prolong
  770  artificially the process of dying, and that I be permitted to
  771  die naturally with only the administration of medication or the
  772  performance of any medical procedure deemed necessary to provide
  773  me with comfort care or to alleviate pain.
  774         It is my intention that this declaration be honored by my
  775  family and physician as the final expression of my legal right
  776  to refuse medical or surgical treatment and to accept the
  777  consequences for such refusal.
  778         In the event that I have been determined to be unable to
  779  provide express and informed consent regarding the withholding,
  780  withdrawal, or continuation of life-prolonging procedures, I
  781  wish to designate, as my surrogate to carry out the provisions
  782  of this declaration:
  783  
  784  Name:...........................................................
  785  Address:........................................................
  786  ........................  Zip Code:........
  787  Phone:................
  788         I understand the full import of this declaration, and I am
  789  emotionally and mentally competent to make this declaration.
  790  Additional Instructions (optional):
  791  ................................................................
  792  ................................................................
  793  ................................................................
  794                          ....(Signed)....                         
  795                           ....Witness....                         
  796                           ....Address....                         
  797                            ....Phone....                          
  798                           ....Witness....                         
  799                           ....Address....                         
  800                            ....Phone....                          
  801  
  802         Section 16. Subsection (1) of section 765.304, Florida
  803  Statutes, is amended to read:
  804         765.304 Procedure for living will.—
  805         (1) If a person has made a living will expressing his or
  806  her desires concerning life-prolonging procedures, but has not
  807  designated a surrogate to execute his or her wishes concerning
  808  life-prolonging procedures or designated a surrogate under part
  809  II, the person’s attending physician may proceed as directed by
  810  the principal in the living will. In the event of a dispute or
  811  disagreement concerning the attending physician’s decision to
  812  withhold or withdraw life-prolonging procedures, the attending
  813  physician shall not withhold or withdraw life-prolonging
  814  procedures pending review under s. 765.105. If a review of a
  815  disputed decision is not sought within 7 days following the
  816  attending physician’s decision to withhold or withdraw life
  817  prolonging procedures, the attending physician may proceed in
  818  accordance with the principal’s instructions.
  819         Section 17. Section 765.306, Florida Statutes, is amended
  820  to read:
  821         765.306 Determination of patient condition.—In determining
  822  whether the patient has a terminal condition, has an end-stage
  823  condition, or is in a persistent vegetative state or may recover
  824  capacity, or whether a medical condition or limitation referred
  825  to in an advance directive exists, the patient’s attending or
  826  treating physician and at least one other consulting physician
  827  must separately examine the patient. The findings of each such
  828  examination must be documented in the patient’s medical record
  829  and signed by each examining physician before life-prolonging
  830  procedures may be withheld or withdrawn.
  831         Section 18. Section 765.404, Florida Statutes, is amended
  832  to read:
  833         765.404 Persistent vegetative state.—For persons in a
  834  persistent vegetative state, as determined by the person’s
  835  attending physician in accordance with currently accepted
  836  medical standards, who have no advance directive and for whom
  837  there is no evidence indicating what the person would have
  838  wanted under such conditions, and for whom, after a reasonably
  839  diligent inquiry, no family or friends are available or willing
  840  to serve as a proxy to make health care decisions for them,
  841  life-prolonging procedures may be withheld or withdrawn under
  842  the following conditions:
  843         (1) The person has a judicially appointed guardian
  844  representing his or her best interest with authority to consent
  845  to medical treatment; and
  846         (2) The guardian and the person’s attending physician, in
  847  consultation with the medical ethics committee of the facility
  848  where the patient is located, conclude that the condition is
  849  permanent and that there is no reasonable medical probability
  850  for recovery and that withholding or withdrawing life-prolonging
  851  procedures is in the best interest of the patient. If there is
  852  no medical ethics committee at the facility, the facility must
  853  have an arrangement with the medical ethics committee of another
  854  facility or with a community-based ethics committee approved by
  855  the Florida Bio-ethics Network. The ethics committee shall
  856  review the case with the guardian, in consultation with the
  857  person’s attending physician, to determine whether the condition
  858  is permanent and there is no reasonable medical probability for
  859  recovery. The individual committee members and the facility
  860  associated with an ethics committee shall not be held liable in
  861  any civil action related to the performance of any duties
  862  required in this subsection.
  863         Section 19. Paragraph (c) of subsection (1) of section
  864  765.516, Florida Statutes, is amended to read:
  865         765.516 Donor amendment or revocation of anatomical gift.—
  866         (1) A donor may amend the terms of or revoke an anatomical
  867  gift by:
  868         (c) A statement made during a terminal illness or injury
  869  addressed to a treating an attending physician, who must
  870  communicate the revocation of the gift to the procurement
  871  organization.
  872         Section 20. This act shall take effect October 1, 2015.