Florida Health Care Surrogate (Medical Power of Attorney)

The Short Answer

A health care surrogate is the document that names a person to make your medical decisions if you cannot make them yourself. That person can talk to your doctors, see your records, and consent to or refuse treatment for you. If you have been searching for a medical power of attorney or healthcare power of attorney in Florida, this is the document, Florida simply calls it the health care surrogate. It is the most important piece of your advance directives, and it pairs with a living will.

In Florida, Is a Health Care Surrogate the Same as a Medical Power of Attorney?

A common question I hear is, “In Florida, is a health care surrogate the same as a medical power of attorney?” Yes. In many states the document that names a medical decision-maker is called a "medical power of attorney" or "healthcare power of attorney." Florida calls the same thing a designation of health care surrogate. The name is different and the job is identical. So whether you call it a medical POA, a healthcare power of attorney, or a health care proxy, in Florida you are looking for the health care surrogate, and we prepare it.

Surrogate vs. Living Will: You Want Both

A surrogate is a person, and a living will is a statement of wishes. The surrogate can respond to any medical situation across the full range of care. The living will speaks only to end-of-life choices about life-prolonging treatment. Your living will records your wishes, and your surrogate is the real person who carries them out and handles everything else that comes up. Together they cover the whole picture.

When the Surrogate Steps In

Usually when your physician determines you cannot make your own health care decisions. You can also let your surrogate access your records and act right away, while you still have capacity, which many people choose for convenience. You stay in charge as long as you are able. The surrogate takes over only when you cannot, and only while that lasts.

Without One, the Law Picks for You

If you never name a surrogate, Florida falls back on a default order of decision-makers (a spouse, then an adult child, then a parent, and so on). That may not be who you would have chosen, and it can split a family that disagrees. In the hardest cases, relatives end up in a court guardianship just to get authority. Naming your own surrogate, with an alternate, keeps the decision yours and your family out of court. Pair it with a durable power of attorney for your finances and the incapacity plan is complete.

Frequently Asked Questions

Common Situations

The "I need a medical power of attorney." A client asks for a medical power of attorney and is surprised that Florida calls it a health care surrogate. It is the same document; we prepare it along with a living will so both her decision-maker and her wishes are covered.

The default that backfired. A man with no surrogate becomes incapacitated, and his estranged spouse is first in line under the default list, over the sibling who actually cared for him. A named surrogate would have put the right person in charge.

The smooth transition. A daughter is named as her father’s surrogate with immediate access. When he is hospitalized, she steps in at once, talks to the doctors, and makes decisions, no delay, no court.

The surrogate who signed as a witness. A widow filled out a downloaded form naming her daughter as surrogate, and the daughter signed as one of the two witnesses. Florida law does not allow the person being named to witness the document, so the designation was vulnerable at exactly the moment it was needed. A five-minute signing done right, with two independent witnesses, is the difference between a document a hospital honors and one it can question.

Sources of Law

• Fla. Stat. §765.202 (designation of health care surrogate), §765.204 (capacity and when the surrogate acts), §765.401 (default proxy when no surrogate); ch. 765 generally. flsenate.gov (retrieved 2026-06-08)
• HIPAA authorization (records access): 45 C.F.R. §164.508.
• What a surrogate may decide: §765.101(5) (definition of a health care decision), §765.205 (the surrogate’s authority, including admission to or transfer from a facility). Immediate authority without an incapacity finding: §765.202(6) and §765.204(3), added by ch. 2015-153. Case: Manor Oaks, Inc. v. Campbell, No. 4D18-3297 (Fla. 4th DCA July 31, 2019) (a designation limited to health care decisions does not authorize the surrogate to agree to a nursing home’s arbitration clause). Read in full from the official opinion text (retrieved 2026-09-03).

What One Nursing Home Case Shows About the Surrogate Form

The way I word this comes from watching a court read the other wording against the family. A designation of health care surrogate is a short document, and every phrase in it is a boundary that a hospital, a nursing home or a judge will one day read literally.

The case I would show a family first was decided by a Florida appellate court in July 2019. A Broward County man signed a document in May 2009 that he titled a durable power of attorney with health care surrogate provisions, and in it he named a friend and his son as his surrogates. He had copied it from an online form and cut out every paragraph about money and real estate (perhaps because those were the parts he did not want anyone to have), so what remained spoke only about medical treatment, applying for benefits, and admission to a facility. Seven years later, in December 2016, at 86, he was admitted to a nursing home, and the friend signed the admission paperwork for him. Inside that paperwork was an arbitration clause, which sent any claim over $5,000 to a private arbitrator rather than a jury. He died in March 2017, and when the friend, now his personal representative, sued the nursing home over his care, the home asked the court to enforce the clause she had signed at the door.

My reading of that case is that the man protected his family without knowing it. The nursing home lost in the trial court and lost again on appeal, because his document called the two people he named health care surrogates more than twenty times, and Florida defines a health care decision as informed consent to treatment, applying for benefits to pay for care, access to the records, and an anatomical gift. Agreeing to arbitrate a lawsuit is none of those. The opinion contrasts his document with the broad or explicit powers of attorney under which Florida courts have enforced the same kind of clause, and the fight over the forum alone ran from 2017 to 2019 before anyone reached the merits.

In reading that opinion against chapter 765, I have a few take-home points.

The first is the boundary between the two documents. A health care surrogate decides treatment, a durable power of attorney decides money, contracts and property, and Florida keeps the two lists separate. When I draft a surrogate designation I keep it inside chapter 765 on purpose, and I put the decision about admission agreements and arbitration clauses into the durable power of attorney, where the owner can settle it deliberately. Practice pointer. An owner who wants the agent to be able to sign a facility’s admission contract says so in the financial document, and an owner who wants the family’s right to a jury preserved leaves that power out.

Second, the signing is where most of these fail, and the statute is specific. Two adult witnesses sign in your presence, the person you name cannot be one of them, and at least one witness must be neither your spouse nor a blood relative. Practice pointer. I check the two witness lines before anything else on a directive someone brings me, because a designation that fails on the witnesses is the one a hospital is entitled to question on the day it is needed.

Third, the start date is yours to choose. Since a 2015 amendment, you can initial a box that lets your surrogate receive your health information, or make decisions, or both, immediately, without waiting for a physician to record that you lack capacity, and your own decisions still control for as long as you can make them. Practice pointer. For a client whose adult child already goes to the appointments, information now and decisions on incapacity is the setting I recommend most often, so the child can talk to the doctors today without anyone asking who is in charge.

Avoid a health care surrogate designation edited down from a form built for a different purpose, because the words that are left decide what the surrogate can sign, and in that case the family learned what its document meant only after the lawsuit began. What a separately drafted pair of documents would have done for that man is settle the question in 2009, in one sentence in the durable power of attorney, either way he wanted it. I prepare the surrogate designation, the living will and the HIPAA release together for a flat $350 per person, and the durable power of attorney that answers the admission question is $350 as well.

The opinion decided only where the family’s claim would be heard, and it says nothing about how the care claim itself came out, so I will not describe an ending the court did not reach. What it does show is a document read literally, seven years after it was signed, by a court that took every word in it at face value.

Kevin D. Klagge, Esq., admitted in Florida since 2012. The case described above is a decision of a Florida court rather than a matter handled by this firm. Past results do not guarantee a similar outcome.

Updated on September 3, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. General information about Florida law, not legal advice, and no attorney-client relationship is created. Your directives should reflect your specific wishes. Do not send confidential information until we have agreed to represent you.