What the rule says
Florida's Health Care Advance Directives Act, codified at Florida Statutes ch. 765, governs advance medical directives. Florida treats advance directives as a set of distinct documents rather than a single combined form:
- Designation of Health Care Surrogate (§ 765.202). The document that names an agent to make health care decisions on the principal's behalf when the principal lacks capacity. This is the equivalent of a healthcare POA. - Living Will Declaration (§ 765.302). The document that states the principal's preferences for end-of-life care, particularly the use or withdrawal of life-sustaining procedures in cases of terminal condition, end-stage condition, or persistent vegetative state. - Do Not Resuscitate Order (DNR) (§ 401.45). A separate physician-issued order directing that CPR not be administered. The DNR is technically a medical order, not a personal advance directive, and is issued by the patient's physician based on the patient's wishes.
The principal can execute any combination of these documents. Many Floridians execute both the surrogate designation and the living will at the same time as a coordinated advance directive package.
The Designation of Health Care Surrogate
Florida Statutes § 765.202 governs the designation of a health care surrogate. Key features:
- Effective immediately or upon incapacity. The principal can designate that the surrogate's authority becomes effective immediately (allowing the surrogate to access health information and act on routine matters even while the principal has capacity), or only upon the principal's incapacity. The 2015 amendments to Florida law expanded the immediate-effect option. - Witnessing requirements. The designation must be signed by the principal in the presence of two adult witnesses. One witness must be neither the surrogate, the alternate surrogate, the principal's spouse, nor a blood relative of the principal. - Not requiring notarization. Unlike some states, Florida does not require notarization for the surrogate designation; witnessing is sufficient. - Statutory form available. Florida Statutes § 765.203 provides a suggested form. Other forms are also acceptable as long as they meet the statutory requirements.
The surrogate has authority to make health care decisions, access medical records, and consent to treatment on the principal's behalf. The surrogate's decisions must be consistent with the principal's known wishes; if those wishes are unknown, the surrogate decides based on the principal's best interests.
The Living Will Declaration
Florida Statutes § 765.302 governs the living will. The document specifies:
- The conditions under which the principal does not want life-sustaining treatment continued — typically terminal condition, end-stage condition, or persistent vegetative state - Specific treatments the principal does or does not want — such as artificial nutrition and hydration, mechanical ventilation, dialysis, and CPR - Other end-of-life preferences
The living will applies in addition to the surrogate designation. When the principal has both, the surrogate is bound to make decisions consistent with the living will. When there is no surrogate, the living will guides the patient's physicians directly.
What happens without advance directives
Florida Statutes § 765.401 establishes a surrogate-decision-maker hierarchy when no advance directive has been executed:
1. The judicially appointed guardian of the patient 2. The patient's spouse 3. An adult child of the patient (or, if more than one, a majority of the reasonably available adult children) 4. A parent of the patient 5. An adult sibling (or majority of reasonably available adult siblings) 6. An adult relative who has shown special care and concern for the patient 7. A close friend of the patient 8. A clinical social worker selected by the patient's hospital or other facility
The hierarchy provides a default but has the same limitations as default hierarchies in other states: disputes among potential surrogates, limited authority for end-of-life decisions, complications for chosen family or non-traditional family relationships, and time delays during medical crises.
What you can do about it
For Florida residents:
- Designate a health care surrogate under Florida Statutes § 765.202. Use the statutory form or a substantially similar document. - Execute a living will under § 765.302 to provide explicit guidance about end-of-life preferences. - Discuss preferences with the surrogate. Written documents are more effective when the surrogate has had explicit conversations about the principal's values and wishes. - Provide copies to the surrogate, primary physician, and key family members. Documents must be accessible to be useful at a hospital. - Consider whether to include the DNR. A DNR is appropriate for those with serious or terminal illness who do not want CPR. Healthy individuals typically do not need a DNR but may benefit from a living will that addresses CPR preferences in specific circumstances. - Update periodically. Marriage, divorce, the death of a named surrogate, and major health changes all warrant review.
Who this affects most
Florida advance directives are most consequential for:
- Florida adults who have not executed any directive and rely on default surrogate authority - Patients facing major medical decisions where family members are divided - Out-of-state family or chosen family who may not be recognized in the statutory hierarchy - LGBTQ+ individuals or others whose chosen family may not match the surrogate hierarchy - Anyone with strong preferences about end-of-life care - Snowbirds and seasonal residents who need directives that work in both Florida and their other home state
Florida's separate-documents approach gives residents flexibility but requires more deliberate planning. Each document serves a different function, and a complete advance care plan generally includes all three (surrogate, living will, and — for those with serious illness — DNR).