HB 153

1	A bill to be entitled
2	An act relating to health care representatives; amending
3	s. 765.101, F.S.; defining the terms "health care,"
4	"health care representative," and "health information" for
5	purposes of ch. 765, F.S.; revising definitions to conform
6	to changes made by the act; amending s. 765.102, F.S.;
7	revising legislative intent provisions to remove
8	references to incapacity of a principal; amending s.
9	765.103, F.S.; revising the date for confirming the
10	validity of advanced directives validly made under prior
11	law; amending s. 765.104, F.S.; conforming provisions to
12	changes made by the act; amending s. 765.105, F.S.;
13	conforming provisions to changes made by the act;
14	providing for expedited judicial intervention upon belief
15	that a health care representative has not kept the
16	principal reasonably informed of matters that he or she
17	has performed on behalf of the principal under specified
18	provisions; amending ss. 765.109, 765.1103, 765.1105, and
19	765.113, F.S.; conforming provisions to changes made by
20	the act; amending s. 765.202, F.S.; revising provisions
21	relating to the designation of health care surrogates;
22	amending s. 765.203, F.S.; conforming provisions to
23	changes made by the act; amending s. 765.204, F.S.;
24	conforming provisions to changes made by the act; deleting
25	references to medical powers of attorney; conforming a
26	cross-reference to changes made by the act; amending s.
27	765.205, F.S.; conforming provisions to changes made by
28	the act; creating s. 765.251, F.S.; providing a short
29	title; creating s. 765.252, F.S.; providing for
30	designation of a health care representative; providing for
31	execution of a designation; providing for an alternate
32	representative; providing for a designation of a separate
33	health care representative to consent to mental health
34	treatment in certain circumstances; providing for the
35	effective date of a designation; providing that a written
36	designation creates a rebuttable presumption of clear and
37	convincing evidence of the principal's designation;
38	creating s. 765.253, F.S.; providing a suggested form for
39	designation of a health care representative; creating s.
40	765.254, F.S.; providing that the designation of a health
41	care representative is not affected by a principal's
42	subsequent incapacity; creating s. 765.255, F.S.;
43	specifying the responsibilities of a health care
44	representative; providing that the authority of a health
45	care representative is not terminated upon the appointment
46	of a guardian for a principal unless so ordered by a
47	guardianship court; amending ss. 765.304, 765.305,
48	765.401, 765.512, 765.522, 744.3115, and 872.04, F.S.;
49	conforming provisions to changes made by the act; amending
50	ss. 394.4598 and 406.11, F.S.; conforming cross-references
51	to changes made by the act; providing an effective date.
52
53	Be It Enacted by the Legislature of the State of Florida:
54
55	Section 1.  Subsections (5) through (7) of section 765.101,
56	Florida Statutes, are renumbered as subsections (6) through (8),
57	respectively, present subsections (8) through (17) are
58	renumbered as subsections (11) through (20), respectively, new
59	subsections (5), (9), and (10) are added to that section, and
60	present subsections (1), (5), and (16) are amended, to read:
61	765.101  Definitions.--As used in this chapter:
62	(1)  "Advance directive" means a witnessed written document
63	or oral statement in which instructions are given by a principal
64	or in which the principal's desires are expressed concerning any
65	aspect of the principal's health care, and includes, but is not
66	limited to, the designation of a health care surrogate, the
67	designation of a health care representative, a living will, or
68	an anatomical gift made pursuant to part VI V of this chapter.
69	(5)  "Health care" means care, services, or supplies
70	related to the health of an individual and includes, but is not
71	limited to, preventive, diagnostic, therapeutic, rehabilitative,
72	maintenance, or palliative care, and counseling, service,
73	assessment, or procedure with respect to the individual's
74	physical or mental condition or functional status or that affect
75	the structure or function of the individual's body.
76	(6)(5)  "Health care decision" means:
77	(a)  Informed consent, refusal of consent, or withdrawal of
78	consent to any and all health care, including life-prolonging
79	procedures and mental health treatment, unless otherwise stated
80	in the advance directive directives.
81	(b)  The decision to apply for private, public, government,
82	or veterans' benefits to defray the cost of health care.
83	(c)  The right of access to health information all records
84	of the principal reasonably necessary for a health care
85	surrogate or health care representative to make decisions
86	involving health care and to apply for benefits.
87	(d)  The decision to make an anatomical gift pursuant to
88	part VI V of this chapter.
89	(9)  "Health care representative" means any competent adult
90	expressly designated by a principal to make health care
91	decisions or to receive health information, or both, on behalf
92	of the principal pursuant to 45 C.F.R. s. 164.504(g) and the
93	Health Insurance Portability and Accountability Act of 1996,
94	Pub. L. No. 104-191, 110 Stat. 1936, without the necessity for a
95	determination of incapacity under s. 765.204(2).
96	(10)  "Health information" means any information, whether
97	oral or recorded in any form or medium, that:
98	(a)  Is created or received by a health care provider,
99	health care facility, health plan, public health authority,
100	employer, life insurer, school or university, or health care
101	clearinghouse; and
102	(b)  Relates to the past, present, or future physical or
103	mental health or condition of the principal; the provision of
104	health care to the principal; or the past, present, or future
105	payment for the provision of health care to the principal.
106	(19)(16)  "Surrogate" means any competent adult expressly
107	designated by a principal to make health care decisions and to
108	receive health information on behalf of the principal upon the
109	principal's incapacity as set forth in s. 765.204.
110	Section 2.  Subsections (2) and (3) of section 765.102,
111	Florida Statutes, are amended to read:
112	765.102  Legislative findings and intent.--
113	(2)  To ensure that such right is not lost or diminished by
114	virtue of later physical or mental incapacity, the Legislature
115	intends that a procedure be established to allow a person to
116	execute plan for incapacity by executing a document or orally
117	designate designating another person to direct the course of his
118	or her medical treatment upon his or her incapacity. Such
119	procedure should be less expensive and less restrictive than
120	guardianship and permit a previously incapacitated person to
121	exercise his or her full right to make health care decisions as
122	soon as the capacity to make such decisions has been regained.
123	(3)  The Legislature recognizes that for some the
124	administration of life-prolonging medical procedures may result
125	in only a precarious and burdensome existence. In order to
126	ensure that the rights and intentions of a person may be
127	respected even after he or she is no longer able to participate
128	actively in decisions concerning himself or herself, and to
129	encourage communication among such patient, his or her family,
130	and his or her physician, the Legislature declares that the laws
131	of this state recognize the right of a competent adult to make
132	an advance directive instructing his or her physician to
133	provide, withhold, or withdraw life-prolonging procedures, or to
134	designate another to make the treatment decision for him or her
135	in the event that such person should become incapacitated and
136	unable to personally direct his or her medical care.
137	Section 3.  Section 765.103, Florida Statutes, is amended
138	to read:
139	765.103  Existing advance directives.--Any advance
140	directive made prior to October 1, 2009 1999, shall be given
141	effect as executed, provided such directive was legally
142	effective when written.
143	Section 4.  Section 765.104, Florida Statutes, is amended
144	to read:
145	765.104  Amendment or revocation.--
146	(1)  An advance directive or a designation of a health care
147	surrogate or health care representative may be amended or
148	revoked at any time by a competent principal:
149	(a)  By means of a signed, dated writing;
150	(b)  By means of the physical cancellation or destruction
151	of the advance directive by the principal or by another in the
152	principal's presence and at the principal's direction;
153	(c)  By means of an oral expression of intent to amend or
154	revoke; or
155	(d)  By means of a subsequently executed advance directive
156	that is materially different from a previously executed advance
157	directive.
158	(2)  Unless otherwise provided in the advance directive or
159	in an order of dissolution or annulment of marriage, the
160	dissolution or annulment of marriage of the principal revokes
161	the designation of the principal's former spouse as a surrogate
162	or health care representative.
163	(3)  Any such amendment or revocation will be effective
164	when it is communicated to the surrogate, health care
165	representative, health care provider, or health care facility.
166	No civil or criminal liability shall be imposed upon any person
167	for a failure to act upon an amendment or revocation unless that
168	person has actual knowledge of such amendment or revocation.
169	(4)  Any patient for whom a medical proxy has been
170	recognized under s. 765.401 and for whom any previous legal
171	disability that precluded the patient's ability to consent is
172	removed may amend or revoke the recognition of the medical proxy
173	and any uncompleted decision made by that proxy. The amendment
174	or revocation takes effect when it is communicated to the proxy,
175	the health care provider, or the health care facility in writing
176	or, if communicated orally, in the presence of a third person.
177	Section 5.  Section 765.105, Florida Statutes, is amended
178	to read:
179	765.105  Review of surrogate, health care representative,
180	or proxy's decision.--The patient's family, the health care
181	facility, or the attending physician, or any other interested
182	person who may reasonably be expected to be directly affected by
183	the surrogate, health care representative, or proxy's decision
184	concerning any health care decision may seek expedited judicial
185	intervention pursuant to rule 5.900 of the Florida Probate
186	Rules, if that person believes:
187	(1)  The surrogate, health care representative, or proxy's
188	decision is not in accord with the patient's known desires or
189	the provisions of this chapter;
190	(2)  The advance directive is ambiguous, or the patient has
191	changed his or her mind after execution of the advance
192	directive;
193	(3)  The surrogate, health care representative, or proxy
194	was improperly designated or appointed, or the designation of
195	the surrogate or representative is no longer effective or has
196	been revoked;
197	(4)  The surrogate, health care representative, or proxy
198	has failed to discharge duties, or incapacity or illness renders
199	the surrogate or proxy incapable of discharging duties;
200	(5)  The surrogate, health care representative, or proxy
201	has abused his or her powers; or
202	(6)  As to a surrogate or proxy, the patient has sufficient
203	capacity to make his or her own health care decisions; or.
204	(7)  To the extent that the principal is capable of
205	understanding, the health care representative has not kept the
206	principal reasonably informed of matters that he or she has
207	performed on behalf of the principal under part III of this
208	chapter.
209	Section 6.  Subsection (1) of section 765.109, Florida
210	Statutes, is amended to read:
211	765.109  Immunity from liability; weight of proof;
212	presumption.--
213	(1)  A health care facility, provider, or other person who
214	acts under the direction of a health care facility or provider
215	is not subject to criminal prosecution or civil liability, and
216	will not be deemed to have engaged in unprofessional conduct, as
217	a result of carrying out a health care decision made in
218	accordance with the provisions of this chapter. The surrogate,
219	health care representative, or proxy who makes a health care
220	decision on a patient's behalf, pursuant to this chapter, is not
221	subject to criminal prosecution or civil liability for such
222	action.
223	Section 7.  Section 765.1103, Florida Statutes, is amended
224	to read:
225	765.1103  Pain management and palliative care.--
226	(1)  A patient shall be given information concerning pain
227	management and palliative care when he or she discusses with the
228	attending or treating physician, or such physician's designee,
229	the diagnosis, planned course of treatment, alternatives, risks,
230	or prognosis for his or her illness. If the patient is
231	incapacitated, the information shall be given to the patient's
232	health care surrogate, health care representative, or proxy,
233	court-appointed guardian as provided in chapter 744, or attorney
234	in fact under a durable power of attorney as provided in chapter
235	709. The court-appointed guardian, health care representative,
236	or attorney in fact must have been delegated authority to make
237	health care decisions on behalf of the patient.
238	(2)  Health care providers and practitioners regulated
239	under chapter 458, chapter 459, or chapter 464 must, as
240	appropriate, comply with a request for pain management or
241	palliative care from a patient under their care or, for an
242	incapacitated patient under their care, from a surrogate, health
243	care representative, proxy, guardian, or other representative
244	permitted to make health care decisions for the incapacitated
245	patient. Facilities regulated under chapter 395, chapter 400, or
246	chapter 429 must comply with the pain management or palliative
247	care measures ordered by the patient's physician.
248	Section 8.  Section 765.1105, Florida Statutes, is amended
249	to read:
250	765.1105  Transfer of a patient.--
251	(1)  A health care provider or facility that refuses to
252	comply with a patient's advance directive, or the treatment
253	decision of his or her surrogate or health care representative,
254	shall make reasonable efforts to transfer the patient to another
255	health care provider or facility that will comply with the
256	directive or treatment decision. This chapter does not require a
257	health care provider or facility to commit any act which is
258	contrary to the provider's or facility's moral or ethical
259	beliefs, if the patient:
260	(a)  Is not in an emergency condition; and
261	(b)  Has received written information upon admission
262	informing the patient of the policies of the health care
263	provider or facility regarding such moral or ethical beliefs.
264	(2)  A health care provider or facility that is unwilling
265	to carry out the wishes of the patient or the treatment decision
266	of his or her surrogate or health care representative because of
267	moral or ethical beliefs must within 7 days either:
268	(a)  Transfer the patient to another health care provider
269	or facility. The health care provider or facility shall pay the
270	costs for transporting the patient to another health care
271	provider or facility; or
272	(b)  If the patient has not been transferred, carry out the
273	wishes of the patient or the patient's surrogate or health care
274	representative, unless the provisions of s. 765.105 apply.
275	Section 9.  Section 765.113, Florida Statutes, is amended
276	to read:
277	765.113  Restrictions on providing consent.--Unless the
278	principal expressly delegates such authority to the surrogate or
279	health care representative in writing, or a surrogate, health
280	care representative, or proxy has sought and received court
281	approval pursuant to rule 5.900 of the Florida Probate Rules, a
282	surrogate, health care representative, or proxy may not provide
283	consent for:
284	(1)  Abortion, sterilization, electroshock therapy,
285	psychosurgery, experimental treatments that have not been
286	approved by a federally approved institutional review board in
287	accordance with 45 C.F.R. part 46 or 21 C.F.R. part 56, or
288	voluntary admission to a mental health facility.
289	(2)  Withholding or withdrawing life-prolonging procedures
290	from a pregnant patient prior to viability as defined in s.
291	390.0111(4).
292	Section 10.  Subsections (4) and (6) of section 765.202,
293	Florida Statutes, are amended to read:
294	765.202  Designation of a health care surrogate.--
295	(4)  If no neither the designated surrogate nor the
296	designated alternate surrogate is able or willing to make health
297	care decisions on behalf of the principal and in accordance with
298	the principal's instructions, the health care facility may seek
299	the appointment of a proxy pursuant to part V of this chapter
300	IV.
301	(6)  A designation of health care surrogate is effective
302	upon a determination of incapacity pursuant to s. 765.204, and
303	unless the document states a time of termination, the
304	designation shall remain in effect until revoked by the
305	principal.
306	Section 11.  Section 765.203, Florida Statutes, is amended
307	to read:
308	765.203  Suggested form of designation.--A written
309	designation of a health care surrogate executed pursuant to this
310	chapter may, but need not be, in the following form:
311
312	DESIGNATION OF HEALTH CARE SURROGATE
313
314	Name:_____(Last)_____(First)_____(Middle Initial)_____
315
316	In the event that I have been determined to be
317	incapacitated to make health care decisions, and I have not
318	designated a health care representative to make all health care
319	decisions for me provide informed consent for medical treatment
320	and surgical and diagnostic procedures, I wish to designate as
321	my surrogate for health care decisions:
322
323	Name:
324	Address:
325
	____________________________________ Zip Code:__________
326
327	Phone:____________________
328
329	If my surrogate is unwilling or unable to perform his or
330	her duties, I wish to designate as my alternate surrogate:
331
332	Name:
333	Address:
334
	____________________________________ Zip Code:__________
335
336	Phone:____________________
337
338	I fully understand that this designation will permit my
339	designee to make health care decisions for me to the extent I
340	have not delegated such health care decisions to my health care
341	representative and to provide, withhold, or withdraw consent on
342	my behalf; to apply for public benefits to defray the cost of
343	health care; and to authorize my admission to or transfer from a
344	health care facility.
345
346	Additional instructions (optional):
347
348	I further affirm that this designation is not being made as
349	a condition of treatment or admission to a health care facility.
350	I will notify and send a copy of this document to the following
351	persons other than my surrogate, so they may know who my
352	surrogate is.
353
354	Name:
355	Name:
356	Signed:
357	Date:
358
	Witnesses: 1.________________
359
	2.________________
360
361	Section 12.  Subsections (2) and (5) of section 765.204,
362	Florida Statutes, are amended to read:
363	765.204  Capacity of principal; procedure.--
364	(2)  If a principal's capacity to make health care
365	decisions for herself or himself or provide informed consent is
366	in question and the principal has not designated a health care
367	representative pursuant to s. 765.252 to make all health care
368	decisions for the principal, the attending physician shall
369	evaluate the principal's capacity and, if the physician
370	concludes that the principal lacks capacity, enter that
371	evaluation in the principal's medical record. If the attending
372	physician has a question as to whether the principal lacks
373	capacity, another physician shall also evaluate the principal's
374	capacity, and if the second physician agrees that the principal
375	lacks the capacity to make health care decisions or provide
376	informed consent, the health care facility shall enter both
377	physician's evaluations in the principal's medical record. If
378	the principal has designated a health care surrogate or has
379	delegated authority to make health care decisions to an attorney
380	in fact under a durable power of attorney, the health care
381	facility shall notify such surrogate or attorney in fact in
382	writing that her or his authority under the instrument has
383	commenced, as provided in chapter 709 or s. 765.203.
384	(5)  In the event the surrogate is required to consent to
385	withholding or withdrawing life-prolonging procedures, the
386	provisions of part IV of this chapter III shall apply.
387	Section 13.  Section 765.205, Florida Statutes, is amended
388	to read:
389	765.205  Responsibility of the surrogate.--
390	(1)  The surrogate, in accordance with the principal's
391	instructions, unless such authority has been expressly limited
392	by the principal or has been otherwise delegated by the
393	principal to a health care representative, shall:
394	(a)  Have authority to act for the principal and to make
395	all health care decisions for the principal during the
396	principal's incapacity not otherwise delegated to a health care
397	representative.
398	(b)  Consult expeditiously with appropriate health care
399	providers to provide informed consent, and make only health care
400	decisions for the principal which he or she believes the
401	principal would have made under the circumstances if the
402	principal were capable of making such decisions. If there is no
403	indication of what the principal would have chosen, the
404	surrogate may consider the patient's best interest in deciding
405	that proposed treatments are to be withheld or that treatments
406	currently in effect are to be withdrawn.
407	(c)  Provide written consent using an appropriate form
408	whenever consent is required, including a physician's order not
409	to resuscitate.
410	(d)  Be provided access to the appropriate health
411	information medical records of the principal.
412	(e)  Apply for public benefits, such as Medicare and
413	Medicaid, for the principal and have access to information
414	regarding the principal's income and assets and banking and
415	financial records to the extent required to make application. A
416	health care provider or facility may not, however, make such
417	application a condition of continued care if the principal, if
418	capable, would have refused to apply.
419	(2)  The surrogate may authorize the release of health
420	information and medical records to appropriate persons to ensure
421	the continuity of the principal's health care and may authorize
422	the admission, discharge, or transfer of the principal to or
423	from a health care facility or other facility or program
424	licensed under chapter 400 or chapter 429.
425	(3)  If, after the appointment of a surrogate, a court
426	appoints a guardian, the surrogate shall continue to make health
427	care decisions for the principal, unless the court has modified
428	or revoked the authority of the surrogate pursuant to s.
429	744.3115. The surrogate may be directed by the court to report
430	the principal's health care status to the guardian.
431	Section 14.  Parts III through V of chapter 765, Florida
432	Statutes, are redesignated as parts IV through VI, respectively,
433	and a new part III of that chapter, consisting of sections
434	765.251, 765.252, 765.253, 765.254, and 765.255, Florida
435	Statutes, is created to read:
436	PART III
437	HEALTH CARE REPRESENTATIVE
438	765.251  Short title.--This part may be cited as the
439	"Florida Health Care Representative Act."
440	765.252  Designation of a health care representative.--
441	(1)  A written document designating a health care
442	representative to make health care decisions for a principal or
443	to receive health information on behalf of a principal, or both,
444	shall be signed by the principal in the presence of two
445	subscribing adult witnesses. A principal unable to sign the
446	instrument may, in the presence of witnesses, direct that
447	another person sign the principal's name as required in this
448	section. An exact copy of the instrument shall be provided to
449	the health care representative.
450	(2)  The person designated as a health care representative
451	may not act as a witness to the execution of the document
452	designating himself or herself as a health care representative.
453	At least one person who acts as a witness may not be either the
454	principal's spouse nor blood relative.
455	(3)  A document designating a health care representative
456	may designate an alternate health care representative provided
457	the designation is explicit. The alternate health care
458	representative may assume his or her duties as health care
459	representative for the principal if the original health care
460	representative is unwilling or unable to perform his or her
461	duties. The principal's failure to designate an alternate health
462	care representative shall not invalidate the designation of a
463	health care representative.
464	(4)  A principal may designate a separate health care
465	representative to consent to mental health treatment in the
466	event that the principal is determined by a court to be
467	incompetent to consent to mental health treatment and a guardian
468	advocate is appointed as provided under s. 394.4598. However,
469	unless the document designating the health care representative
470	expressly states otherwise, the court shall assume that the
471	health care representative authorized to make health care
472	decisions under this chapter is also the principal's choice to
473	make decisions regarding mental health treatment.
474	(5)  A designation of health care representative is
475	effective as of the date of execution, and unless the document
476	states a time of termination, the designation shall remain in
477	effect until revoked by the principal.
478	(6)  A written designation of a health care representative
479	executed pursuant to this section establishes a rebuttable
480	presumption of clear and convincing evidence of the principal's
481	designation of the health care representative.
482	765.253  Suggested form of designation.--A written
483	designation of a health care representative executed pursuant to
484	this chapter may, but need not be, in the following form:
485
486	DESIGNATION OF HEALTH CARE REPRESENTATIVE
487
488	I, [(name)_____(Last)_____(First)_____(Middle Initial)], hereby
489	designate as my health care representative under s. 765.252,
490	Florida Statutes:
491
492	Name:______________________________________
493
494	Address:___________________________________
495
496	Phone:_____________________________________
497
498	If my health care representative is unwilling or unable to
499	perform his or her duties, I wish to designate as my alternate
500	health care representative:
501
502	Name:______________________________________
503
504	Address:___________________________________
505
506	Phone:_____________________________________
507
508	I authorize my health care representative to:
509
510	____(Initials)  Receive any of my health information,
511	whether oral or recorded in any form or medium, that:
512	1.  Is created or received by a health care provider,
513	health care facility, health plan, public health authority,
514	employer, life insurer, school or university, or health care
515	clearinghouse; and
516	2.  Relates to my past, present, or future physical or
517	mental health or condition; the provision of health care to me;
518	or the past, present, or future payment for the provision of
519	health care to me.
520
521	I further authorize my health care representative to:
522
523	____(Initials)  Make all health care decisions for me,
524	which means he or she has the authority to:
525	1.  Provide informed consent, refusal of consent, or
526	withdrawal of consent to any and all of my health care,
527	including life-prolonging procedures.
528	2.  Apply on my behalf for private, public, government, or
529	veteran's benefits to defray the cost of health care.
530	3.  Access my health information reasonably necessary for
531	the health care representative to make decisions involving my
532	health care and to apply for benefits.
533	4.  Decide to make an anatomical gift pursuant to part VI
534	of chapter 765, Florida Statutes.
535	____(Initials)  Specific instructions and restrictions:
536	________________________________________________________________
537	________________________________________________________________
538	________________________________________________________________
539
540	To the extent I am capable of understanding, my health care
541	representative shall keep me reasonably informed of all matters
542	that he or she has performed on my behalf.
543
544	I further affirm that this designation is not being made as a
545	condition of treatment or admission to a health care facility.
546
547	I will notify and send a copy of this document to the following
548	persons other than my health care representative, so they may
549	know who my health care representative is.
550
551	Name:______________________________________
552
553	Name:______________________________________
554
555	THIS HEALTH CARE REPRESENTATIVE DESIGNATION IS NOT AFFECTED BY
556	MY SUBSEQUENT INCAPACITY EXCEPT AS PROVIDED IN CHAPTER 765,
557	FLORIDA STATUTES.
558
559	Signed:____________________________________
560
561	Date:______________________________________
562
563	Witnesses:
564
565	1._________________________________________
566	2._________________________________________
567
568	765.254  Capacity of principal.--
569	(1)  A health care representative designation is not
570	affected by the subsequent incapacity of the principal. The form
571	designating the representative must contain the words: "This
572	representative designation in not affected by the subsequent
573	incapacity of the principal except as provided in chapter 765,
574	Florida Statutes" or similar words that show the principal's
575	intent that the authority conferred is exercisable
576	notwithstanding the principal's subsequent incapacity, except as
577	otherwise provided in this chapter.
578	(2)  If any person or entity initiates proceedings in any
579	court of competent jurisdiction to determine the principal's
580	incapacity, the authority granted the health care representative
581	under the representative designation is not affected as to
582	making health care decisions or receiving health information on
583	behalf of the principal under this chapter unless otherwise
584	ordered by the court.
585	(3)  Any health care facility or health care provider may
586	rely upon the authority granted in a representative designation
587	until the health care facility or health care provider has
588	received notice as provided in s. 765.104(3).
589	765.255  Responsibility of the health care
590	representative.--
591	(1)  The health care representative, to the extent given
592	authority to make health care decisions pursuant to s. 765.252,
593	unless such authority had been expressly limited by the
594	principal or has been otherwise reserved exclusively by the
595	principal to a health care surrogate, shall:
596	(a)  Have authority to act for the principal and to make
597	all health care decisions for the principal.
598	(b)  Consult expeditiously with appropriate health care
599	providers to provide informed consent and make only health care
600	decisions for the principal that he or she believes the
601	principal would have made under the circumstances. If there is
602	no indication of what the principal would have chosen, the
603	health care representative may consider the principal's best
604	interest in deciding whether proposed treatments are to be
605	withheld or that treatments currently in effect are to be
606	withdrawn.
607	(c)  Provide written consent using an appropriate form
608	whenever consent is required, including a physician's order not
609	to resuscitate.
610	(d)  Be provided access to the health information of the
611	principal.
612	(e)  Apply for public benefits, such as Medicare and
613	Medicaid, for the principal and have access to information
614	regarding the principal's income and assets and banking and
615	financial records to the extent required to make application. A
616	health care provider or facility may not, however, make such
617	application a condition of continued care if the principal, if
618	capable, would have refused to apply.
619	(f)  Authorize the release of health information to
620	appropriate persons to ensure the continuity of the principal's
621	health care and may authorize the admission, discharge, or
622	transfer of the principal to or from a health care facility or
623	other facility or program licensed under chapter 400 or chapter
624	429.
625	(2)  The health care representative, if only given
626	authority to receive health information pursuant to s. 765.252,
627	unless such authority had been expressly limited by the
628	principal, shall be limited to the authority set forth in
629	paragraphs (1)(d), (e), and (f).
630	(3)  To the extent the principal is capable of
631	understanding, the health care representative shall keep the
632	principal reasonably informed of all matters that he or she has
633	performed on behalf of the principal under subsections (1) and
634	(2).
635	(4)  If, after the designation of a health care
636	representative, a court appoints a guardian, the health care
637	representative shall continue to make health care decisions for
638	the principal, unless the court has modified or revoked the
639	authority of the health care representative pursuant to s.
640	744.3115. The health care representative may be directed by the
641	court to report the principal's health care status to the
642	guardian.
643	Section 15.  Subsection (1) of section 765.304, Florida
644	Statutes, is amended to read:
645	765.304  Procedure for living will.--
646	(1)  If a person has made a living will expressing his or
647	her desires concerning life-prolonging procedures, but has not
648	designated a surrogate to execute his or her wishes concerning
649	life-prolonging procedures or designated a surrogate under part
650	II of this chapter or a health care representative under part
651	III of this chapter, the attending physician may proceed as
652	directed by the principal in the living will. In the event of a
653	dispute or disagreement concerning the attending physician's
654	decision to withhold or withdraw life-prolonging procedures, the
655	attending physician shall not withhold or withdraw life-
656	prolonging procedures pending review under s. 765.105. If a
657	review of a disputed decision is not sought within 7 days
658	following the attending physician's decision to withhold or
659	withdraw life-prolonging procedures, the attending physician may
660	proceed in accordance with the principal's instructions.
661	Section 16.  Section 765.305, Florida Statutes, is amended
662	to read:
663	765.305  Procedure in absence of a living will.--
664	(1)  In the absence of a living will, the decision to
665	withhold or withdraw life-prolonging procedures from a patient
666	may be made by a health care surrogate designated by the patient
667	pursuant to part II of this chapter or a health care
668	representative designated by the patient pursuant to part III of
669	this chapter unless the designation limits the surrogate's or
670	health care representative's authority to consent to the
671	withholding or withdrawal of life-prolonging procedures.
672	(2)  Before exercising the incompetent patient's right to
673	forego treatment, the surrogate or health care representative
674	must be satisfied that:
675	(a)  The patient does not have a reasonable medical
676	probability of recovering capacity so that the right could be
677	exercised by the patient.
678	(b)  The patient has an end-stage condition, the patient is
679	in a persistent vegetative state, or the patient's physical
680	condition is terminal.
681	Section 17.  Subsection (1) of section 765.401, Florida
682	Statutes, is amended to read:
683	765.401  The proxy.--
684	(1)  If an incapacitated or developmentally disabled
685	patient has not executed an advance directive, designated a
686	health care surrogate or health care representative to make
687	health care decisions, or designated a surrogate to execute an
688	advance directive, and no surrogate or health care
689	representative is or the designated or alternate surrogate is no
690	longer available to make health care decisions, health care
691	decisions may be made for the patient by any of the following
692	individuals, in the following order of priority, if no
693	individual in a prior class is reasonably available, willing, or
694	competent to act:
695	(a)  The judicially appointed guardian of the patient or
696	the guardian advocate of the person having a developmental
697	disability as defined in s. 393.063, who has been authorized to
698	consent to medical treatment, if such guardian has previously
699	been appointed; however, this paragraph shall not be construed
700	to require such appointment before a treatment decision can be
701	made under this subsection;
702	(b)  The patient's spouse;
703	(c)  An adult child of the patient, or if the patient has
704	more than one adult child, a majority of the adult children who
705	are reasonably available for consultation;
706	(d)  A parent of the patient;
707	(e)  The adult sibling of the patient or, if the patient
708	has more than one sibling, a majority of the adult siblings who
709	are reasonably available for consultation;
710	(f)  An adult relative of the patient who has exhibited
711	special care and concern for the patient and who has maintained
712	regular contact with the patient and who is familiar with the
713	patient's activities, health, and religious or moral beliefs; or
714	(g)  A close friend of the patient.
715	(h)  A clinical social worker licensed pursuant to chapter
716	491, or who is a graduate of a court-approved guardianship
717	program. Such a proxy must be selected by the provider's
718	bioethics committee and must not be employed by the provider. If
719	the provider does not have a bioethics committee, then such a
720	proxy may be chosen through an arrangement with the bioethics
721	committee of another provider. The proxy will be notified that,
722	upon request, the provider shall make available a second
723	physician, not involved in the patient's care to assist the
724	proxy in evaluating treatment. Decisions to withhold or withdraw
725	life-prolonging procedures will be reviewed by the facility's
726	bioethics committee. Documentation of efforts to locate proxies
727	from prior classes must be recorded in the patient record.
728	Section 18.  Subsections (1), (2), and (3) of section
729	765.512, Florida Statutes, are amended to read:
730	765.512  Persons who may make an anatomical gift.--
731	(1)  Any person who may make a will may give all or part of
732	his or her body for any purpose specified in s. 765.513. The
733	gift is effective upon the death of the donor.
734	(a)  If the decedent makes an anatomical gift by one of the
735	methods listed in s. 765.514(1), and in the absence of actual
736	notice of contrary indications by the decedent, the document or
737	entry in the organ and tissue registry is legally sufficient
738	evidence of the decedent's informed consent to donate an
739	anatomical gift.
740	(b)  An anatomical gift made by a qualified donor and not
741	revoked by the donor, as provided in s. 765.516, is irrevocable
742	after the donor's death. A family member, guardian,
743	representative ad litem, or health care surrogate, or health
744	care representative may not modify, deny, or prevent a donor's
745	wish or intent to make an anatomical gift after the donor's
746	death.
747	(2)  A health care surrogate designated by the decedent
748	pursuant to part II of this chapter or health care
749	representative designated by the decedent pursuant to part III
750	of this chapter may give all or any part of the decedent's body
751	for any purpose specified in s. 765.513 absent actual notice of
752	contrary indications by the decedent.
753	(3)  If the decedent has not made an anatomical gift, or
754	designated a health care surrogate pursuant to part II of this
755	chapter or a health care representative pursuant to part III of
756	this chapter, a member of one of the classes of persons listed
757	below, in the order of priority listed and in the absence of
758	actual notice of contrary indications by the decedent or actual
759	notice of opposition by a member of a prior class, may give all
760	or any part of the decedent's body for any purpose specified in
761	s. 765.513:
762	(a)  The spouse of the decedent;
763	(b)  An adult son or daughter of the decedent;
764	(c)  Either parent of the decedent;
765	(d)  An adult brother or sister of the decedent;
766	(e)  An adult grandchild of the decedent;
767	(f)  A grandparent of the decedent;
768	(g)  A close personal friend, as defined in s. 765.101;
769	(h)  A guardian of the person of the decedent at the time
770	of his or her death; or
771	(i)  A representative ad litem appointed by a court of
772	competent jurisdiction upon a petition heard ex parte filed by
773	any person, who shall ascertain that no person of higher
774	priority exists who objects to the gift of all or any part of
775	the decedent's body and that no evidence exists of the
776	decedent's having made a communication expressing a desire that
777	his or her body or body parts not be donated upon death.
778
779	Those of higher priority who are reasonably available must be
780	contacted and made aware of the proposed gift and a reasonable
781	search must be conducted which shows that there would have been
782	no objection to the gift by the decedent.
783	Section 19.  Subsection (2) of section 765.522, Florida
784	Statutes, is amended to read:
785	765.522  Duty of certain hospital administrators; liability
786	of hospital administrators, organ procurement organizations, eye
787	banks, and tissue banks.--
788	(2)  Where, based on accepted medical standards, a hospital
789	patient is a suitable candidate for organ or tissue donation,
790	the hospital administrator or the hospital administrator's
791	designee shall, at or near the time of death, notify the
792	appropriate organ, eye, or tissue recovery program, which shall
793	access the organ and tissue donor registry created by s.
794	765.5155 to ascertain the existence of an entry in the registry
795	that has not been revoked, a donor card, or a document executed
796	by the decedent. In the absence of an entry in the donor
797	registry, donor card, organ donation sticker or organ donation
798	imprint on a driver's license, or other properly executed
799	document, the organ, eye, or tissue recovery program shall
800	request:
801	(a)  The patient's health care surrogate or health care
802	representative, as authorized in s. 765.512(2); or
803	(b)  If the patient does not have a health care surrogate
804	or health care representative, or the health care surrogate or
805	health care representative is not reasonably available, any of
806	the persons specified in s. 765.512(3), in the order and manner
807	listed,
808
809	to consent to the gift of all or any part of the decedent's body
810	for any purpose specified in this part. Except as provided in s.
811	765.512, in the absence of actual notice of opposition, consent
812	need only be obtained from the person or persons in the highest
813	priority class reasonably available.
814	Section 20.  Section 744.3115, Florida Statutes, is amended
815	to read:
816	744.3115  Advance directives for health care.--In each
817	proceeding in which a guardian is appointed under this chapter,
818	the court shall determine whether the ward, prior to incapacity,
819	has executed any valid advance directive under chapter 765. If
820	any advance directive exists, the court shall specify in its
821	order and letters of guardianship what authority, if any, the
822	guardian shall exercise over the surrogate. Pursuant to the
823	grounds listed in s. 765.105, the court, upon its own motion,
824	may, with notice to the health care surrogate, health care
825	representative, and any other appropriate parties, modify or
826	revoke the authority of the health care surrogate or health care
827	representative to make health care decisions for the ward. For
828	purposes of this section, the term "health care decision" has
829	the same meaning as in s. 765.101.
830	Section 21.  Subsection (2) of section 872.04, Florida
831	Statutes, is amended to read:
832	872.04  Autopsies; consent required, exception.--
833	(2)  Unless otherwise authorized by statute, no autopsy
834	shall be performed without the written consent by the health
835	care representative, as provided in s. 765.252, or if there is
836	no health care representative, by the health care surrogate, as
837	provided in s. 765.202, if one has been designated. If a health
838	care representative or a health care surrogate has not been
839	designated, then written consent may be provided by the spouse,
840	nearest relative, or, if no such next of kin can be found, the
841	person who has assumed custody of the body for purposes of
842	burial. When two or more persons assume custody of the body for
843	such purposes, then the consent of any one of them shall be
844	sufficient to authorize the autopsy.
845	Section 22.  Subsection (6) of section 394.4598, Florida
846	Statutes, is amended to read:
847	394.4598  Guardian advocate.--
848	(6)  If a guardian with the authority to consent to medical
849	treatment has not already been appointed or if the patient has
850	not already designated a health care surrogate, the court may
851	authorize the guardian advocate to consent to medical treatment,
852	as well as mental health treatment. Unless otherwise limited by
853	the court, a guardian advocate with authority to consent to
854	medical treatment shall have the same authority to make health
855	care decisions and be subject to the same restrictions as a
856	proxy appointed under part V IV of chapter 765. Unless the
857	guardian advocate has sought and received express court approval
858	in proceeding separate from the proceeding to determine the
859	competence of the patient to consent to medical treatment, the
860	guardian advocate may not consent to:
861	(a)  Abortion.
862	(b)  Sterilization.
863	(c)  Electroconvulsive treatment.
864	(d)  Psychosurgery.
865	(e)  Experimental treatments that have not been approved by
866	a federally approved institutional review board in accordance
867	with 45 C.F.R. part 46 or 21 C.F.R. part 56.
868
869	The court must base its decision on evidence that the treatment
870	or procedure is essential to the care of the patient and that
871	the treatment does not present an unreasonable risk of serious,
872	hazardous, or irreversible side effects. The court shall follow
873	the procedures set forth in subsection (1) of this section.
874	Section 23.  Paragraph (b) of subsection (2) of section
875	406.11, Florida Statutes, is amended to read:
876	406.11  Examinations, investigations, and autopsies.--
877	(2)
878	(b)  The Medical Examiners Commission shall adopt rules,
879	pursuant to chapter 120, providing for the notification of the
880	next of kin that an investigation by the medical examiner's
881	office is being conducted. A medical examiner may not retain or
882	furnish any body part of the deceased for research or any other
883	purpose which is not in conjunction with a determination of the
884	identification of or cause or manner of death of the deceased or
885	the presence of disease or which is not otherwise authorized by
886	this chapter, part VI V of chapter 765, or chapter 873, without
887	notification of and approval by the next of kin.
888	Section 24.  This act shall take effect October 1, 2009.

CODING: Words stricken are deletions; words underlined are additions.