Florida Senate - 2015                             CS for SB 1224
       
       
        
       By the Committee on Judiciary; and Senator Joyner
       
       
       
       
       
       590-03296-15                                          20151224c1
    1                        A bill to be entitled                      
    2         An act relating to health care representatives;
    3         amending s. 743.0645, F.S.; conforming provisions to
    4         changes made by the act; amending s. 765.101, F.S.;
    5         defining terms for purposes of provisions relating to
    6         health care advanced directives; revising definitions
    7         to conform to changes made by the act; amending s.
    8         765.102, F.S.; revising legislative intent to include
    9         reference to surrogate authority that is not dependent
   10         on a determination of incapacity; amending s. 765.104,
   11         F.S.; conforming provisions to changes made by the
   12         act; amending s. 765.105, F.S.; conforming provisions
   13         to changes made by the act; providing an exception for
   14         a patient who has designated a surrogate to make
   15         health care decisions and receive health information
   16         without a determination of incapacity being required;
   17         amending ss. 765.1103 and 765.1105, F.S.; conforming
   18         provisions to changes made by the act; amending s.
   19         765.202, F.S.; revising provisions relating to the
   20         designation of health care surrogates; amending s.
   21         765.203, F.S.; revising the suggested form for
   22         designation of a health care surrogate; creating s.
   23         765.2035, F.S.; providing for the designation of
   24         health care surrogates for minors; providing for
   25         designation of an alternate surrogate; providing for
   26         decisionmaking if neither the designated surrogate nor
   27         the designated alternate surrogate is willing, able,
   28         or reasonably available to make health care decisions
   29         for the minor on behalf of the minor’s principal;
   30         authorizing designation of a separate surrogate to
   31         consent to mental health treatment for a minor;
   32         providing that the health care surrogate authorized to
   33         make health care decisions for a minor is also the
   34         minor’s principal’s choice to make decisions regarding
   35         mental health treatment for the minor unless provided
   36         otherwise; providing that a written designation of a
   37         health care surrogate establishes a rebuttable
   38         presumption of clear and convincing evidence of the
   39         minor’s principal’s designation of the surrogate;
   40         creating s. 765.2038, F.S.; providing a suggested form
   41         for the designation of a health care surrogate for a
   42         minor; amending s. 765.204, F.S.; conforming
   43         provisions to changes made by the act; providing for
   44         notification of incapacity of a principal; amending s.
   45         765.205, F.S.; conforming provisions to changes made
   46         by the act; amending ss. 765.302, 765.303, 765.304,
   47         765.306, 765.404, and 765.516, F.S.; conforming
   48         provisions to changes made by the act; providing an
   49         effective date.
   50          
   51  Be It Enacted by the Legislature of the State of Florida:
   52  
   53         Section 1. Paragraph (b) of subsection (1) and paragraph
   54  (a) of subsection (2) of section 743.0645, Florida Statutes, are
   55  amended to read:
   56         743.0645 Other persons who may consent to medical care or
   57  treatment of a minor.—
   58         (1) As used in this section, the term:
   59         (b) “Medical care and treatment” includes ordinary and
   60  necessary medical and dental examination and treatment,
   61  including blood testing, preventive care including ordinary
   62  immunizations, tuberculin testing, and well-child care, but does
   63  not include surgery, general anesthesia, provision of
   64  psychotropic medications, or other extraordinary procedures for
   65  which a separate court order, health care surrogate designation
   66  under s. 765.2035 executed after September 30, 2015, power of
   67  attorney executed after July 1, 2001, or informed consent as
   68  provided by law is required, except as provided in s. 39.407(3).
   69         (2) Any of the following persons, in order of priority
   70  listed, may consent to the medical care or treatment of a minor
   71  who is not committed to the Department of Children and Families
   72  or the Department of Juvenile Justice or in their custody under
   73  chapter 39, chapter 984, or chapter 985 when, after a reasonable
   74  attempt, a person who has the power to consent as otherwise
   75  provided by law cannot be contacted by the treatment provider
   76  and actual notice to the contrary has not been given to the
   77  provider by that person:
   78         (a) A health care surrogate designated under s. 765.2035
   79  after September 30, 2015, or a person who possesses a power of
   80  attorney to provide medical consent for the minor. A health care
   81  surrogate designation under s. 765.2035 executed after September
   82  30, 2015, and a power of attorney executed after July 1, 2001,
   83  to provide medical consent for a minor includes the power to
   84  consent to medically necessary surgical and general anesthesia
   85  services for the minor unless such services are excluded by the
   86  individual executing the health care surrogate for a minor or
   87  power of attorney.
   88  
   89  There shall be maintained in the treatment provider’s records of
   90  the minor documentation that a reasonable attempt was made to
   91  contact the person who has the power to consent.
   92         Section 2. Section 765.101, Florida Statutes, is amended to
   93  read:
   94         765.101 Definitions.—As used in this chapter:
   95         (1) “Advance directive” means a witnessed written document
   96  or oral statement in which instructions are given by a principal
   97  or in which the principal’s desires are expressed concerning any
   98  aspect of the principal’s health care or health information, and
   99  includes, but is not limited to, the designation of a health
  100  care surrogate, a living will, or an anatomical gift made
  101  pursuant to part V of this chapter.
  102         (2) “Attending physician” means the primary physician who
  103  has primary responsibility for the treatment and care of the
  104  patient while the patient receives such treatment or care in a
  105  hospital as defined in s. 395.002(12).
  106         (3) “Close personal friend” means any person 18 years of
  107  age or older who has exhibited special care and concern for the
  108  patient, and who presents an affidavit to the health care
  109  facility or to the primary attending or treating physician
  110  stating that he or she is a friend of the patient; is willing
  111  and able to become involved in the patient’s health care; and
  112  has maintained such regular contact with the patient so as to be
  113  familiar with the patient’s activities, health, and religious or
  114  moral beliefs.
  115         (4) “End-stage condition” means an irreversible condition
  116  that is caused by injury, disease, or illness which has resulted
  117  in progressively severe and permanent deterioration, and which,
  118  to a reasonable degree of medical probability, treatment of the
  119  condition would be ineffective.
  120         (5) “Health care” means care, services, or supplies related
  121  to the health of an individual and includes, but is not limited
  122  to, preventive, diagnostic, therapeutic, rehabilitative,
  123  maintenance, or palliative care, and counseling, service,
  124  assessment, or procedure with respect to the individual’s
  125  physical or mental condition or functional status or that affect
  126  the structure or function of the individual’s body.
  127         (6)(5) “Health care decision” means:
  128         (a) Informed consent, refusal of consent, or withdrawal of
  129  consent to any and all health care, including life-prolonging
  130  procedures and mental health treatment, unless otherwise stated
  131  in the advance directives.
  132         (b) The decision to apply for private, public, government,
  133  or veterans’ benefits to defray the cost of health care.
  134         (c) The right of access to health information all records
  135  of the principal reasonably necessary for a health care
  136  surrogate or proxy to make decisions involving health care and
  137  to apply for benefits.
  138         (d) The decision to make an anatomical gift pursuant to
  139  part V of this chapter.
  140         (7)(6) “Health care facility” means a hospital, nursing
  141  home, hospice, home health agency, or health maintenance
  142  organization licensed in this state, or any facility subject to
  143  part I of chapter 394.
  144         (8)(7) “Health care provider” or “provider” means any
  145  person licensed, certified, or otherwise authorized by law to
  146  administer health care in the ordinary course of business or
  147  practice of a profession.
  148         (9) “Health information” means any information, whether
  149  oral or recorded in any form or medium, as defined in 45 C.F.R.
  150  s. 160.103 and the Health Insurance Portability and
  151  Accountability Act of 1996, 42 U.S.C. s. 1320d, as amended,
  152  that:
  153         (a) Is created or received by a health care provider,
  154  health care facility, health plan, public health authority,
  155  employer, life insurer, school or university, or health care
  156  clearinghouse; and
  157         (b) Relates to the past, present, or future physical or
  158  mental health or condition of the principal; the provision of
  159  health care to the principal; or the past, present, or future
  160  payment for the provision of health care to the principal.
  161         (10)(8) “Incapacity” or “incompetent” means the patient is
  162  physically or mentally unable to communicate a willful and
  163  knowing health care decision. For the purposes of making an
  164  anatomical gift, the term also includes a patient who is
  165  deceased.
  166         (11)(9) “Informed consent” means consent voluntarily given
  167  by a person after a sufficient explanation and disclosure of the
  168  subject matter involved to enable that person to have a general
  169  understanding of the treatment or procedure and the medically
  170  acceptable alternatives, including the substantial risks and
  171  hazards inherent in the proposed treatment or procedures, and to
  172  make a knowing health care decision without coercion or undue
  173  influence.
  174         (12)(10) “Life-prolonging procedure” means any medical
  175  procedure, treatment, or intervention, including artificially
  176  provided sustenance and hydration, which sustains, restores, or
  177  supplants a spontaneous vital function. The term does not
  178  include the administration of medication or performance of
  179  medical procedure, when such medication or procedure is deemed
  180  necessary to provide comfort care or to alleviate pain.
  181         (13)(11) “Living will” or “declaration” means:
  182         (a) A witnessed document in writing, voluntarily executed
  183  by the principal in accordance with s. 765.302; or
  184         (b) A witnessed oral statement made by the principal
  185  expressing the principal’s instructions concerning life
  186  prolonging procedures.
  187         (14) “Minor’s principal” means a principal who is a natural
  188  guardian as defined in s. 744.301(1); legal custodian; or,
  189  subject to chapter 744, legal guardian of the person of a minor.
  190         (15)(12) “Persistent vegetative state” means a permanent
  191  and irreversible condition of unconsciousness in which there is:
  192         (a) The absence of voluntary action or cognitive behavior
  193  of any kind.
  194         (b) An inability to communicate or interact purposefully
  195  with the environment.
  196         (16)(13) “Physician” means a person licensed pursuant to
  197  chapter 458 or chapter 459.
  198         (17) “Primary physician” means a physician designated by an
  199  individual or the individual’s surrogate, proxy, or agent under
  200  a durable power of attorney, as provided in chapter 709, to have
  201  primary responsibility for the individual’s health care or, in
  202  the absence of a designation or if the designated physician is
  203  not reasonably available, a physician who undertakes the
  204  responsibility.
  205         (18)(14) “Principal” means a competent adult executing an
  206  advance directive and on whose behalf health care decisions are
  207  to be made or health care information is to be received, or
  208  both.
  209         (19)(15) “Proxy” means a competent adult who has not been
  210  expressly designated to make health care decisions for a
  211  particular incapacitated individual, but who, nevertheless, is
  212  authorized pursuant to s. 765.401 to make health care decisions
  213  for such individual.
  214         (20) “Reasonably available” means readily able to be
  215  contacted without undue effort and willing and able to act in a
  216  timely manner considering the urgency of the patient’s health
  217  care needs.
  218         (21)(16) “Surrogate” means any competent adult expressly
  219  designated by a principal to make health care decisions and to
  220  receive health information. The principal may stipulate whether
  221  the authority of the surrogate to make health care decisions or
  222  to receive health information is exercisable immediately without
  223  the necessity for a determination of incapacity or only upon the
  224  principal’s incapacity as provided in s. 765.204 on behalf of
  225  the principal upon the principal’s incapacity.
  226         (22)(17) “Terminal condition” means a condition caused by
  227  injury, disease, or illness from which there is no reasonable
  228  medical probability of recovery and which, without treatment,
  229  can be expected to cause death.
  230         Section 3. Subsections (3) through (6) of section 765.102,
  231  Florida Statutes, are renumbered as subsections (4) through (7),
  232  respectively, present subsections (2) and (3) are amended, and a
  233  new subsection (3) is added to that section, to read:
  234         765.102 Legislative findings and intent.—
  235         (2) To ensure that such right is not lost or diminished by
  236  virtue of later physical or mental incapacity, the Legislature
  237  intends that a procedure be established to allow a person to
  238  plan for incapacity by executing a document or orally
  239  designating another person to direct the course of his or her
  240  health care or receive his or her health information, or both,
  241  medical treatment upon his or her incapacity. Such procedure
  242  should be less expensive and less restrictive than guardianship
  243  and permit a previously incapacitated person to exercise his or
  244  her full right to make health care decisions as soon as the
  245  capacity to make such decisions has been regained.
  246         (3) The Legislature also recognizes that some competent
  247  adults may want to receive immediate assistance in making health
  248  care decisions or accessing health information, or both, without
  249  a determination of incapacity. The Legislature intends that a
  250  procedure be established to allow a person to designate a
  251  surrogate to make health care decisions or receive health
  252  information, or both, without the necessity for a determination
  253  of incapacity under this chapter.
  254         (4)(3) The Legislature recognizes that for some the
  255  administration of life-prolonging medical procedures may result
  256  in only a precarious and burdensome existence. In order to
  257  ensure that the rights and intentions of a person may be
  258  respected even after he or she is no longer able to participate
  259  actively in decisions concerning himself or herself, and to
  260  encourage communication among such patient, his or her family,
  261  and his or her physician, the Legislature declares that the laws
  262  of this state recognize the right of a competent adult to make
  263  an advance directive instructing his or her physician to
  264  provide, withhold, or withdraw life-prolonging procedures, or to
  265  designate another to make the health care treatment decision for
  266  him or her in the event that such person should become
  267  incapacitated and unable to personally direct his or her health
  268  medical care.
  269         Section 4. Subsection (1) of section 765.104, Florida
  270  Statutes, is amended to read:
  271         765.104 Amendment or revocation.—
  272         (1) An advance directive or designation of a surrogate may
  273  be amended or revoked at any time by a competent principal:
  274         (a) By means of a signed, dated writing;
  275         (b) By means of the physical cancellation or destruction of
  276  the advance directive by the principal or by another in the
  277  principal’s presence and at the principal’s direction;
  278         (c) By means of an oral expression of intent to amend or
  279  revoke; or
  280         (d) By means of a subsequently executed advance directive
  281  that is materially different from a previously executed advance
  282  directive.
  283         Section 5. Section 765.105, Florida Statutes, is amended to
  284  read:
  285         765.105 Review of surrogate or proxy’s decision.—
  286         (1) The patient’s family, the health care facility, or the
  287  primary attending physician, or any other interested person who
  288  may reasonably be expected to be directly affected by the
  289  surrogate or proxy’s decision concerning any health care
  290  decision may seek expedited judicial intervention pursuant to
  291  rule 5.900 of the Florida Probate Rules, if that person
  292  believes:
  293         (a)(1) The surrogate or proxy’s decision is not in accord
  294  with the patient’s known desires or the provisions of this
  295  chapter;
  296         (b)(2) The advance directive is ambiguous, or the patient
  297  has changed his or her mind after execution of the advance
  298  directive;
  299         (c)(3) The surrogate or proxy was improperly designated or
  300  appointed, or the designation of the surrogate is no longer
  301  effective or has been revoked;
  302         (d)(4) The surrogate or proxy has failed to discharge
  303  duties, or incapacity or illness renders the surrogate or proxy
  304  incapable of discharging duties;
  305         (e)(5) The surrogate or proxy has abused his or her powers;
  306  or
  307         (f)(6) The patient has sufficient capacity to make his or
  308  her own health care decisions.
  309         (2) This section does not apply to a patient who is not
  310  incapacitated and who has designated a surrogate who has
  311  immediate authority to make health care decisions and receive
  312  health information, or both, on behalf of the patient.
  313         Section 6. Subsection (1) of section 765.1103, Florida
  314  Statutes, is amended to read:
  315         765.1103 Pain management and palliative care.—
  316         (1) A patient shall be given information concerning pain
  317  management and palliative care when he or she discusses with the
  318  primary attending or treating physician, or such physician’s
  319  designee, the diagnosis, planned course of treatment,
  320  alternatives, risks, or prognosis for his or her illness. If the
  321  patient is incapacitated, the information shall be given to the
  322  patient’s health care surrogate or proxy, court-appointed
  323  guardian as provided in chapter 744, or attorney in fact under a
  324  durable power of attorney as provided in chapter 709. The court
  325  appointed guardian or attorney in fact must have been delegated
  326  authority to make health care decisions on behalf of the
  327  patient.
  328         Section 7. Section 765.1105, Florida Statutes, is amended
  329  to read:
  330         765.1105 Transfer of a patient.—
  331         (1) A health care provider or facility that refuses to
  332  comply with a patient’s advance directive, or the treatment
  333  decision of his or her surrogate or proxy, shall make reasonable
  334  efforts to transfer the patient to another health care provider
  335  or facility that will comply with the directive or treatment
  336  decision. This chapter does not require a health care provider
  337  or facility to commit any act which is contrary to the
  338  provider’s or facility’s moral or ethical beliefs, if the
  339  patient:
  340         (a) Is not in an emergency condition; and
  341         (b) Has received written information upon admission
  342  informing the patient of the policies of the health care
  343  provider or facility regarding such moral or ethical beliefs.
  344         (2) A health care provider or facility that is unwilling to
  345  carry out the wishes of the patient or the treatment decision of
  346  his or her surrogate or proxy because of moral or ethical
  347  beliefs must within 7 days either:
  348         (a) Transfer the patient to another health care provider or
  349  facility. The health care provider or facility shall pay the
  350  costs for transporting the patient to another health care
  351  provider or facility; or
  352         (b) If the patient has not been transferred, carry out the
  353  wishes of the patient or the patient’s surrogate or proxy,
  354  unless the provisions of s. 765.105 applies apply.
  355         Section 8. Subsections (1), (3), and (4) of section
  356  765.202, Florida Statutes, are amended, subsections (6) and (7)
  357  are renumbered as subsections (7) and (8), respectively, and a
  358  new subsection (6) is added to that section, to read:
  359         765.202 Designation of a health care surrogate.—
  360         (1) A written document designating a surrogate to make
  361  health care decisions for a principal or receive health
  362  information on behalf of a principal, or both, shall be signed
  363  by the principal in the presence of two subscribing adult
  364  witnesses. A principal unable to sign the instrument may, in the
  365  presence of witnesses, direct that another person sign the
  366  principal’s name as required herein. An exact copy of the
  367  instrument shall be provided to the surrogate.
  368         (3) A document designating a health care surrogate may also
  369  designate an alternate surrogate provided the designation is
  370  explicit. The alternate surrogate may assume his or her duties
  371  as surrogate for the principal if the original surrogate is not
  372  willing, able, or reasonably available unwilling or unable to
  373  perform his or her duties. The principal’s failure to designate
  374  an alternate surrogate shall not invalidate the designation of a
  375  surrogate.
  376         (4) If neither the designated surrogate nor the designated
  377  alternate surrogate is willing, able, or reasonably available
  378  able or willing to make health care decisions on behalf of the
  379  principal and in accordance with the principal’s instructions,
  380  the health care facility may seek the appointment of a proxy
  381  pursuant to part IV.
  382         (6) A principal may stipulate in the document that the
  383  authority of the surrogate to receive health information or make
  384  health care decisions or both is exercisable immediately without
  385  the necessity for a determination of incapacity as provided in
  386  s. 765.204.
  387         Section 9. Section 765.203, Florida Statutes, is amended to
  388  read:
  389         765.203 Suggested form of designation.—A written
  390  designation of a health care surrogate executed pursuant to this
  391  chapter may, but need not be, in the following form:
  392  
  393                DESIGNATION OF HEALTH CARE SURROGATE               
  394  
  395  I, ...name..., designate as my health care surrogate under s.
  396  765.202, Florida Statutes:
  397  
  398  Name: ...(name of health care surrogate)...
  399  Address: ...(address)...
  400  Phone: ...(telephone)...
  401  
  402  If my health care surrogate is not willing, able, or reasonably
  403  available to perform his or her duties, I designate as my
  404  alternate health care surrogate:
  405  
  406  Name: ...(name of alternate health care surrogate)...
  407  Address: ...(address)...
  408  Phone: ...(telephone)...
  409  
  410                    INSTRUCTIONS FOR HEALTH CARE                   
  411  
  412         I authorize my health care surrogate to:
  413         ...(Initial here)... Receive any of my health information,
  414  whether oral or recorded in any form or medium, that:
  415         1. Is created or received by a health care provider, health
  416  care facility, health plan, public health authority, employer,
  417  life insurer, school or university, or health care
  418  clearinghouse; and
  419         2. Relates to my past, present, or future physical or
  420  mental health or condition; the provision of health care to me;
  421  or the past, present, or future payment for the provision of
  422  health care to me.
  423  I further authorize my health care surrogate to:
  424         ...(Initial here)... Make all health care decisions for me,
  425  which means he or she has the authority to:
  426         1. Provide informed consent, refusal of consent, or
  427  withdrawal of consent to any and all of my health care,
  428  including life-prolonging procedures.
  429         2. Apply on my behalf for private, public, government, or
  430  veterans’ benefits to defray the cost of health care.
  431         3. Access my health information reasonably necessary for
  432  the health care surrogate to make decisions involving my health
  433  care and to apply for benefits for me.
  434         4. Decide to make an anatomical gift pursuant to part V of
  435  chapter 765, Florida Statutes.
  436         ...(Initial here)... Specific instructions and
  437  restrictions:...................................................
  438  ................................................................
  439  ................................................................
  440  
  441  To the extent I am capable of understanding, my health care
  442  surrogate shall keep me reasonably informed of all decisions
  443  that he or she has made on my behalf and matters concerning me.
  444  
  445  THIS HEALTH CARE SURROGATE DESIGNATION IS NOT AFFECTED BY MY
  446  SUBSEQUENT INCAPACITY EXCEPT AS PROVIDED IN CHAPTER 765, FLORIDA
  447  STATUTES.
  448  
  449  PURSUANT TO SECTION 765.104, FLORIDA STATUTES, I UNDERSTAND THAT
  450  I MAY, AT ANY TIME WHILE I RETAIN MY CAPACITY, REVOKE OR AMEND
  451  THIS DESIGNATION BY:
  452         (1) SIGNING A WRITTEN AND DATED INSTRUMENT WHICH EXPRESSES
  453  MY INTENT TO AMEND OR REVOKE THIS DESIGNATION;
  454         (2) PHYSICALLY DESTROYING THIS DESIGNATION THROUGH MY OWN
  455  ACTION OR BY THAT OF ANOTHER PERSON IN MY PRESENCE AND UNDER MY
  456  DIRECTION;
  457         (3) VERBALLY EXPRESSING MY INTENTION TO AMEND OR REVOKE
  458  THIS DESIGNATION; OR
  459         (4) SIGNING A NEW DESIGNATION THAT IS MATERIALLY DIFFERENT
  460  FROM THIS DESIGNATION.
  461  
  462  MY HEALTH CARE SURROGATE’S AUTHORITY BECOMES EFFECTIVE WHEN MY
  463  PRIMARY PHYSICIAN DETERMINES THAT I AM UNABLE TO MAKE MY OWN
  464  HEALTH CARE DECISIONS UNLESS I INITIAL EITHER OR BOTH OF THE
  465  FOLLOWING BOXES:
  466  
  467  IF I INITIAL THIS BOX [....], MY HEALTH CARE SURROGATE’S
  468  AUTHORITY TO RECEIVE MY HEALTH INFORMATION TAKES EFFECT
  469  IMMEDIATELY.
  470  
  471  IF I INITIAL THIS BOX [....], MY HEALTH CARE SURROGATE’S
  472  AUTHORITY TO MAKE HEALTH CARE DECISIONS FOR ME TAKES EFFECT
  473  IMMEDIATELY.
  474  
  475  SIGNATURES: Sign and date the form here:
  476  ...(date)... ...(sign your name)...
  477  ...(address)... ...(print your name)...
  478  ...(city)... ...(state)...
  479  
  480  SIGNATURES OF WITNESSES:
  481  First witness			 Second witness
  482  ...(print name)... ...(print name)...
  483  ...(address)... ...(address)...
  484  ...(city)... ...(state)... ...(city)... ...(state)...
  485  ...(signature of witness)... ...(signature of witness)...
  486  ...(date)... ...(date)...
  487  
  488  Name:....(Last)....(First)....(Middle Initial)....
  489         In the event that I have been determined to be
  490  incapacitated to provide informed consent for medical treatment
  491  and surgical and diagnostic procedures, I wish to designate as
  492  my surrogate for health care decisions:
  493  
  494  Name:...........................................................
  495  Address:........................................................
  496  ........................  Zip Code:........
  497  Phone:................
  498         If my surrogate is unwilling or unable to perform his or
  499  her duties, I wish to designate as my alternate surrogate:
  500  Name:...........................................................
  501  Address:........................................................
  502  ........................  Zip Code:........
  503  Phone:................
  504         I fully understand that this designation will permit my
  505  designee to make health care decisions and to provide, withhold,
  506  or withdraw consent on my behalf; to apply for public benefits
  507  to defray the cost of health care; and to authorize my admission
  508  to or transfer from a health care facility.
  509  Additional instructions (optional):.............................
  510  ................................................................
  511  ................................................................
  512  ................................................................
  513         I further affirm that this designation is not being made as
  514  a condition of treatment or admission to a health care facility.
  515  I will notify and send a copy of this document to the following
  516  persons other than my surrogate, so they may know who my
  517  surrogate is.
  518  Name:...........................................................
  519  Name:...........................................................
  520  ................................................................
  521  ................................................................
  522  Signed:.........................................................
  523  Date:...........................................................
  524  Witnesses:1.	                                                      
  525    2.	                                                              
  526         Section 10. Section 765.2035, Florida Statutes, is created
  527  to read:
  528         765.2035 Designation of a health care surrogate for a
  529  minor.—
  530         (1) A natural guardian as defined in s. 744.301(1), legal
  531  custodian, or legal guardian of the person of a minor may
  532  designate a competent adult to serve as a surrogate to make
  533  health care decisions for the minor. Such designation shall be
  534  made by a written document signed by the minor’s principal in
  535  the presence of two subscribing adult witnesses. If a minor’s
  536  principal is unable to sign the instrument, the principal may,
  537  in the presence of witnesses, direct that another person sign
  538  the minor’s principal’s name as required by this subsection. An
  539  exact copy of the instrument shall be provided to the surrogate.
  540         (2) The person designated as surrogate may not act as
  541  witness to the execution of the document designating the health
  542  care surrogate.
  543         (3) A document designating a health care surrogate may also
  544  designate an alternate surrogate; however, such designation must
  545  be explicit. The alternate surrogate may assume his or her
  546  duties as surrogate if the original surrogate is not willing,
  547  able, or reasonably available to perform his or her duties. The
  548  minor’s principal’s failure to designate an alternate surrogate
  549  does not invalidate the designation.
  550         (4) If neither the designated surrogate or the designated
  551  alternate surrogate is willing, able, or reasonably available to
  552  make health care decisions for the minor on behalf of the
  553  minor’s principal and in accordance with the minor’s principal’s
  554  instructions, s. 743.0645(2) shall apply as if no surrogate had
  555  been designated.
  556         (5) A natural guardian as defined in s. 744.301(1), legal
  557  custodian, or legal guardian of the person of a minor may
  558  designate a separate surrogate to consent to mental health
  559  treatment for the minor. However, unless the document
  560  designating the health care surrogate expressly states
  561  otherwise, the court shall assume that the health care surrogate
  562  authorized to make health care decisions for a minor under this
  563  chapter is also the minor’s principal’s choice to make decisions
  564  regarding mental health treatment for the minor.
  565         (6) Unless the document states a time of termination, the
  566  designation shall remain in effect until revoked by the minor’s
  567  principal. An otherwise valid designation of a surrogate for a
  568  minor shall not be invalid solely because it was made before the
  569  birth of the minor.
  570         (7) A written designation of a health care surrogate
  571  executed pursuant to this section establishes a rebuttable
  572  presumption of clear and convincing evidence of the minor’s
  573  principal’s designation of the surrogate and becomes effective
  574  pursuant to s. 743.0645(2)(a).
  575         Section 11. Section 765.2038, Florida Statutes, is created
  576  to read:
  577         765.2038 Designation of health care surrogate for a minor;
  578  suggested form.—A written designation of a health care surrogate
  579  for a minor executed pursuant to this chapter may, but need not
  580  be, in the following form:
  581                DESIGNATION OF HEALTH CARE SURROGATE               
  582                              FOR MINOR                            
  583         I/We, _...(name/names)..., the [....] natural guardian(s)
  584  as defined in s. 744.301(1), Florida Statutes; [....] legal
  585  custodian(s); [....] legal guardian(s) [check one] of the
  586  following minor(s):
  587  
  588  .......................................;
  589  .......................................;
  590  .......................................,
  591  
  592  pursuant to s. 765.2035, Florida Statutes, designate the
  593  following person to act as my/our surrogate for health care
  594  decisions for such minor(s) in the event that I/we am/are not
  595  able or reasonably available to provide consent for medical
  596  treatment and surgical and diagnostic procedures:
  597  
  598  Name: ...(name)...
  599  Address: ...(address)...
  600  Zip Code: ...(zip code)...
  601  Phone: ...(telephone)...
  602  
  603         If my/our designated health care surrogate for a minor is
  604  not willing, able, or reasonably available to perform his or her
  605  duties, I/we designate the following person as my/our alternate
  606  health care surrogate for a minor:
  607  
  608  Name: ...(name)...
  609  Address: ...(address)...
  610  Zip Code: ...(zip code)...
  611  Phone: ...(telephone)...
  612  
  613         I/We authorize and request all physicians, hospitals, or
  614  other providers of medical services to follow the instructions
  615  of my/our surrogate or alternate surrogate, as the case may be,
  616  at any time and under any circumstances whatsoever, with regard
  617  to medical treatment and surgical and diagnostic procedures for
  618  a minor, provided the medical care and treatment of any minor is
  619  on the advice of a licensed physician.
  620  
  621         I/We fully understand that this designation will permit
  622  my/our designee to make health care decisions for a minor and to
  623  provide, withhold, or withdraw consent on my/our behalf, to
  624  apply for public benefits to defray the cost of health care, and
  625  to authorize the admission or transfer of a minor to or from a
  626  health care facility.
  627  
  628         I/We will notify and send a copy of this document to the
  629  following person(s) other than my/our surrogate, so that they
  630  may know the identity of my/our surrogate:
  631  
  632  Name: ...(name)...
  633  Name: ...(name)...
  634  
  635  Signed: ...(signature)...
  636  Date: ...(date)...
  637  
  638  WITNESSES:
  639  1. ...(witness)...
  640  2. ...(witness)...
  641         Section 12. Section 765.204, Florida Statutes, is amended
  642  to read:
  643         765.204 Capacity of principal; procedure.—
  644         (1) A principal is presumed to be capable of making health
  645  care decisions for herself or himself unless she or he is
  646  determined to be incapacitated. Incapacity may not be inferred
  647  from the person’s voluntary or involuntary hospitalization for
  648  mental illness or from her or his intellectual disability.
  649         (2) If a principal’s capacity to make health care decisions
  650  for herself or himself or provide informed consent is in
  651  question, the primary or attending physician shall evaluate the
  652  principal’s capacity and, if the evaluating physician concludes
  653  that the principal lacks capacity, enter that evaluation in the
  654  principal’s medical record. If the evaluating attending
  655  physician has a question as to whether the principal lacks
  656  capacity, another physician shall also evaluate the principal’s
  657  capacity, and if the second physician agrees that the principal
  658  lacks the capacity to make health care decisions or provide
  659  informed consent, the health care facility shall enter both
  660  physician’s evaluations in the principal’s medical record. If
  661  the principal has designated a health care surrogate or has
  662  delegated authority to make health care decisions to an attorney
  663  in fact under a durable power of attorney, the health care
  664  facility shall notify such surrogate or attorney in fact in
  665  writing that her or his authority under the instrument has
  666  commenced, as provided in chapter 709 or s. 765.203. If an
  667  attending physician determines that the principal lacks
  668  capacity, the hospital in which the attending physician made
  669  such a determination shall notify the principal’s primary
  670  physician of the determination.
  671         (3) The surrogate’s authority shall commence upon a
  672  determination under subsection (2) that the principal lacks
  673  capacity, and such authority shall remain in effect until a
  674  determination that the principal has regained such capacity.
  675  Upon commencement of the surrogate’s authority, a surrogate who
  676  is not the principal’s spouse shall notify the principal’s
  677  spouse or adult children of the principal’s designation of the
  678  surrogate. In the event the primary attending physician
  679  determines that the principal has regained capacity, the
  680  authority of the surrogate shall cease, but shall recommence if
  681  the principal subsequently loses capacity as determined pursuant
  682  to this section.
  683         (4) Notwithstanding subsections (2) and (3), if the
  684  principal has designated a health care surrogate and has
  685  stipulated that the authority of the surrogate is to take effect
  686  immediately, or has appointed an agent under a durable power of
  687  attorney as provided in chapter 709 to make health care
  688  decisions for the principal, the health care facility shall
  689  notify such surrogate or agent in writing when a determination
  690  of incapacity has been entered into the principal’s medical
  691  record.
  692         (5)(4) A determination made pursuant to this section that a
  693  principal lacks capacity to make health care decisions shall not
  694  be construed as a finding that a principal lacks capacity for
  695  any other purpose.
  696         (6)(5)If In the event the surrogate is required to consent
  697  to withholding or withdrawing life-prolonging procedures, the
  698  provisions of part III applies shall apply.
  699         Section 13. Paragraph (d) of subsection (1) and subsection
  700  (2) of section 765.205, Florida Statutes, are amended to read:
  701         765.205 Responsibility of the surrogate.—
  702         (1) The surrogate, in accordance with the principal’s
  703  instructions, unless such authority has been expressly limited
  704  by the principal, shall:
  705         (d) Be provided access to the appropriate health
  706  information medical records of the principal.
  707         (2) The surrogate may authorize the release of health
  708  information and medical records to appropriate persons to ensure
  709  the continuity of the principal’s health care and may authorize
  710  the admission, discharge, or transfer of the principal to or
  711  from a health care facility or other facility or program
  712  licensed under chapter 400 or chapter 429.
  713         Section 14. Subsection (2) of section 765.302, Florida
  714  Statutes, is amended to read:
  715         765.302 Procedure for making a living will; notice to
  716  physician.—
  717         (2) It is the responsibility of the principal to provide
  718  for notification to her or his primary attending or treating
  719  physician that the living will has been made. In the event the
  720  principal is physically or mentally incapacitated at the time
  721  the principal is admitted to a health care facility, any other
  722  person may notify the physician or health care facility of the
  723  existence of the living will. A primary An attending or treating
  724  physician or health care facility which is so notified shall
  725  promptly make the living will or a copy thereof a part of the
  726  principal’s medical records.
  727         Section 15. Subsection (1) of section 765.303, Florida
  728  Statutes, is amended to read:
  729         765.303 Suggested form of a living will.—
  730         (1) A living will may, BUT NEED NOT, be in the following
  731  form:
  732                             Living Will                           
  733         Declaration made this .... day of ...., ...(year)..., I,
  734  ........, willfully and voluntarily make known my desire that my
  735  dying not be artificially prolonged under the circumstances set
  736  forth below, and I do hereby declare that, if at any time I am
  737  incapacitated and
  738         ...(initial)... I have a terminal condition
  739         or ...(initial)... I have an end-stage condition
  740         or ...(initial)... I am in a persistent vegetative state
  741  and if my primary attending or treating physician and another
  742  consulting physician have determined that there is no reasonable
  743  medical probability of my recovery from such condition, I direct
  744  that life-prolonging procedures be withheld or withdrawn when
  745  the application of such procedures would serve only to prolong
  746  artificially the process of dying, and that I be permitted to
  747  die naturally with only the administration of medication or the
  748  performance of any medical procedure deemed necessary to provide
  749  me with comfort care or to alleviate pain.
  750         It is my intention that this declaration be honored by my
  751  family and physician as the final expression of my legal right
  752  to refuse medical or surgical treatment and to accept the
  753  consequences for such refusal.
  754         In the event that I have been determined to be unable to
  755  provide express and informed consent regarding the withholding,
  756  withdrawal, or continuation of life-prolonging procedures, I
  757  wish to designate, as my surrogate to carry out the provisions
  758  of this declaration:
  759  
  760  Name:...........................................................
  761  Address:........................................................
  762  ........................  Zip Code:........
  763  Phone:................
  764         I understand the full import of this declaration, and I am
  765  emotionally and mentally competent to make this declaration.
  766  Additional Instructions (optional):
  767  ................................................................
  768  ................................................................
  769  ................................................................
  770                          ....(Signed)....                         
  771                           ....Witness....                         
  772                           ....Address....                         
  773                            ....Phone....                          
  774                           ....Witness....                         
  775                           ....Address....                         
  776                            ....Phone....                          
  777         Section 16. Subsection (1) of section 765.304, Florida
  778  Statutes, is amended to read:
  779         765.304 Procedure for living will.—
  780         (1) If a person has made a living will expressing his or
  781  her desires concerning life-prolonging procedures, but has not
  782  designated a surrogate to execute his or her wishes concerning
  783  life-prolonging procedures or designated a surrogate under part
  784  II, the person’s primary attending physician may proceed as
  785  directed by the principal in the living will. In the event of a
  786  dispute or disagreement concerning the primary attending
  787  physician’s decision to withhold or withdraw life-prolonging
  788  procedures, the primary attending physician shall not withhold
  789  or withdraw life-prolonging procedures pending review under s.
  790  765.105. If a review of a disputed decision is not sought within
  791  7 days following the primary attending physician’s decision to
  792  withhold or withdraw life-prolonging procedures, the primary
  793  attending physician may proceed in accordance with the
  794  principal’s instructions.
  795         Section 17. Section 765.306, Florida Statutes, is amended
  796  to read:
  797         765.306 Determination of patient condition.—In determining
  798  whether the patient has a terminal condition, has an end-stage
  799  condition, or is in a persistent vegetative state or may recover
  800  capacity, or whether a medical condition or limitation referred
  801  to in an advance directive exists, the patient’s primary
  802  attending or treating physician and at least one other
  803  consulting physician must separately examine the patient. The
  804  findings of each such examination must be documented in the
  805  patient’s medical record and signed by each examining physician
  806  before life-prolonging procedures may be withheld or withdrawn.
  807         Section 18. Section 765.404, Florida Statutes, is amended
  808  to read:
  809         765.404 Persistent vegetative state.—For persons in a
  810  persistent vegetative state, as determined by the person’s
  811  primary attending physician in accordance with currently
  812  accepted medical standards, who have no advance directive and
  813  for whom there is no evidence indicating what the person would
  814  have wanted under such conditions, and for whom, after a
  815  reasonably diligent inquiry, no family or friends are available
  816  or willing to serve as a proxy to make health care decisions for
  817  them, life-prolonging procedures may be withheld or withdrawn
  818  under the following conditions:
  819         (1) The person has a judicially appointed guardian
  820  representing his or her best interest with authority to consent
  821  to medical treatment; and
  822         (2) The guardian and the person’s primary attending
  823  physician, in consultation with the medical ethics committee of
  824  the facility where the patient is located, conclude that the
  825  condition is permanent and that there is no reasonable medical
  826  probability for recovery and that withholding or withdrawing
  827  life-prolonging procedures is in the best interest of the
  828  patient. If there is no medical ethics committee at the
  829  facility, the facility must have an arrangement with the medical
  830  ethics committee of another facility or with a community-based
  831  ethics committee approved by the Florida Bio-ethics Network. The
  832  ethics committee shall review the case with the guardian, in
  833  consultation with the person’s primary attending physician, to
  834  determine whether the condition is permanent and there is no
  835  reasonable medical probability for recovery. The individual
  836  committee members and the facility associated with an ethics
  837  committee shall not be held liable in any civil action related
  838  to the performance of any duties required in this subsection.
  839         Section 19. Paragraph (c) of subsection (1) of section
  840  765.516, Florida Statutes, is amended to read:
  841         765.516 Donor amendment or revocation of anatomical gift.—
  842         (1) A donor may amend the terms of or revoke an anatomical
  843  gift by:
  844         (c) A statement made during a terminal illness or injury
  845  addressed to the primary an attending physician, who must
  846  communicate the revocation of the gift to the procurement
  847  organization.
  848         Section 20. This act shall take effect October 1, 2015.