Duties of Health Care Surrogates and Health Care Proxies

June 11th, 2013 written by Lance M. McKinney
 

Once a person accepts the role of Health Care Surrogate and/or Health Care Proxy, he or she is subject to certain duties and has certain powers, unless they have been limited by the patient. For basic information about a Health Care Surrogate, see here, and for basic information about a Health Care Proxy, see here. The Health Care Surrogate and/or Health Care Proxy has the following powers and duties:

The authority to act for the patient and to make all health care and medical decisions regarding the patient, while the patient is incapacitated;

The duty to consult with health care providers in order to provide informed consent;

The duty to give written consent to treatment, including consenting to a physician’s order not to resuscitate (DNR), if appropriate and is a part of patient’s wishes;

The right to access the patient’s medical records;

The right and/or duty to apply for public benefits, such as Medicare and Medicaid, on behalf of the patient, and to have access to information regarding the patient’s income, assets, banking records and financial records to the extent required for the application for public benefits (this does not give authority over the assets, income, records, etc. just the information about them);

The right to authorize the release of information and medical records regarding the patient to appropriate persons;

The right to admit, discharge, or transfer the patient to or from a health care facility or other facility or nursing home, hospices, assisted living facilities, and adult family-care homes.

Health care decisions are defined by the Florida Statutes to include the following: 1) informed consent, refusal of consent, and withdrawal of consent to any health care treatment or procedure, including life-prolonging procedures and mental health treatment; 2) the decision to apply for private, public, government, and/or veteran’s benefits to defray cost of health care; 3) the right to access the patient’s records; and 4) the decision to donate an organ. The Health Care Surrogate and/or Health Care Proxy may only make the health care and medical decisions that he or she believes that the patient would have made under the same circumstances, if the patient were capable of making such a decision. This is sometimes called the “Substituted Judgment Standard.” If the Health Care Surrogate and/or Health Care Proxy does not know what the patient would have chosen, then he or she may consider the patient’s best interest in making the health care decision. This is known as the “Best Interest Standard.”

The decisions of a Health Care Surrogate and/or Health Care Proxy may be reviewed by the court. The patient’s family, the health care facility, the attending physician, or any other person who may reasonably be expected to be affected by the health care decision may seek expedited judicial intervention. The person must believe at least one of the following: 1) the health care decision was not in accord with the patient’s known desires; 2) the advance directive, such as the Designation of Health Care Surrogate or Living Will, is ambiguous, or the patient has changed his or her mind; 3) the Health Care Surrogate and/or Health Care Proxy was improperly designated or appointed, of the designation of Health Care Surrogate is no longer effective or has been revoked; 4) the Health Care Surrogate and/or Health Care Proxy has failed to discharge his or her duties, or his or her incapacity or illness renders the Health Care Surrogate or Health Care Proxy incapable or discharging his duties; 5) the Health Care Surrogate or Health Care Proxy has abused his or her powers; or 6) the patient has sufficient capacity to make his or her own health care decisions.

If after a Health Care Surrogate is appointed and accepts the role, a court later appoints a guardian over the patient, the Health Care Surrogate can still make all of the health care and medical decisions for the patient, unless the court has modified or revoked the power of the Health Care Surrogate. The court can direct the Health Care Surrogate to report on the patient’s health care status to the guardian.

If you have questions about your role as Health Care Surrogate or Health Care Proxy, please call us at (239) 939-4888.

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