2023 Florida Statutes › Title XLIV - Civil Rights › Chapter 765 - Health Care Advance Directives › Part II - Health Care Surrogate (Ss. 765.201-765.205) › 765.204 - Capacity of principal; procedure.

765.204 Capacity of principal; procedure.—
(1) A principal is presumed to be capable of making health care decisions for herself or himself unless she or he is determined to be incapacitated. While a principal has decisionmaking capacity, the principal’s wishes are controlling. Each physician or health care provider must clearly communicate to a principal with decisionmaking capacity the treatment plan and any change to the treatment plan prior to implementation of the plan or the change to the plan. Incapacity may not be inferred from the person’s voluntary or involuntary hospitalization for mental illness or from her or his intellectual disability.
(2) If a principal’s capacity to make health care decisions for herself or himself or provide informed consent is in question, the primary or attending physician shall evaluate the principal’s capacity and, if the evaluating physician concludes that the principal lacks capacity, enter that evaluation in the principal’s medical record. If the evaluating physician has a question as to whether the principal lacks capacity, another physician shall also evaluate the principal’s capacity, and if the second physician agrees that the principal lacks the capacity to make health care decisions or provide informed consent, the health care facility shall enter both physician’s evaluations in the principal’s medical record. If the principal has designated a health care surrogate or has delegated authority to make health care decisions to an attorney in fact under a durable power of attorney, the health care facility shall notify such surrogate or attorney in fact in writing that her or his authority under the instrument has commenced, as provided in chapter 709 or s. 765.203. If an attending physician determines that the principal lacks capacity, the hospital in which the attending physician made such a determination shall notify the principal’s primary physician of the determination.
(3) The surrogate’s authority commences either upon a determination under subsection (2) that the principal lacks capacity or upon a stipulation of such authority pursuant to s. 765.101(21). Such authority remains in effect until a determination that the principal has regained such capacity, if the authority commenced as a result of incapacity, or until the authority is revoked, if the authority commenced immediately pursuant to s. 765.101(21). Upon commencement of the surrogate’s authority, a surrogate who is not the principal’s spouse shall notify the principal’s spouse or adult children of the principal’s designation of the surrogate. Except if the principal provided immediately exercisable authority to the surrogate pursuant to s. 765.101(21), in the event that the primary or attending physician determines that the principal has regained capacity, the authority of the surrogate shall cease, but recommences if the principal subsequently loses capacity as determined pursuant to this section. A health care provider is not liable for relying upon health care decisions made by a surrogate while the principal lacks capacity. At any time when a principal lacks capacity, a health care decision made on the principal’s behalf by a surrogate is effective to the same extent as a decision made by the principal. If a principal possesses capacity, health care decisions of the principal take precedence over decisions made by the surrogate that present a material conflict.
(4) Notwithstanding subsections (2) and (3), if the principal has designated a health care surrogate and has stipulated that the authority of the surrogate is to take effect immediately, or has appointed an agent under a durable power of attorney as provided in chapter 709 to make health care decisions for the principal, the health care facility shall notify such surrogate or agent in writing when a determination of incapacity has been entered into the principal’s medical record.
(5) A determination made pursuant to this section that a principal lacks capacity to make health care decisions shall not be construed as a finding that a principal lacks capacity for any other purpose.
(6) If the surrogate is required to consent to withholding or withdrawing life-prolonging procedures, part III applies.
History.—s. 3, ch. 92-199; s. 1146, ch. 97-102; s. 22, ch. 99-331; s. 10, ch. 2000-295; s. 23, ch. 2013-162; s. 12, ch. 2015-153.