Florida Senate - 2015                      CS for CS for SB 1224
       
       
        
       By the Committees on Rules; and Judiciary; and Senator Joyner
       
       
       
       
       
       595-04426-15                                          20151224c2
    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; providing
   45         that a health care provider may justifiably rely on
   46         decisions made by a surrogate; providing for when
   47         there are conflicting decisions between surrogate and
   48         patient; amending ss. 765.205, 765.302, 765.303,
   49         765.304, 765.306, 765.404, and 765.516, F.S.;
   50         conforming provisions to changes made by the act;
   51         providing an effective date.
   52          
   53  Be It Enacted by the Legislature of the State of Florida:
   54  
   55         Section 1. Paragraph (b) of subsection (1) and paragraph
   56  (a) of subsection (2) of section 743.0645, Florida Statutes, are
   57  amended to read:
   58         743.0645 Other persons who may consent to medical care or
   59  treatment of a minor.—
   60         (1) As used in this section, the term:
   61         (b) “Medical care and treatment” includes ordinary and
   62  necessary medical and dental examination and treatment,
   63  including blood testing, preventive care including ordinary
   64  immunizations, tuberculin testing, and well-child care, but does
   65  not include surgery, general anesthesia, provision of
   66  psychotropic medications, or other extraordinary procedures for
   67  which a separate court order, health care surrogate designation
   68  under s. 765.2035 executed after September 30, 2015, power of
   69  attorney executed after July 1, 2001, or informed consent as
   70  provided by law is required, except as provided in s. 39.407(3).
   71         (2) Any of the following persons, in order of priority
   72  listed, may consent to the medical care or treatment of a minor
   73  who is not committed to the Department of Children and Families
   74  or the Department of Juvenile Justice or in their custody under
   75  chapter 39, chapter 984, or chapter 985 when, after a reasonable
   76  attempt, a person who has the power to consent as otherwise
   77  provided by law cannot be contacted by the treatment provider
   78  and actual notice to the contrary has not been given to the
   79  provider by that person:
   80         (a) A health care surrogate designated under s. 765.2035
   81  after September 30, 2015, or a person who possesses a power of
   82  attorney to provide medical consent for the minor. A health care
   83  surrogate designation under s. 765.2035 executed after September
   84  30, 2015, and a power of attorney executed after July 1, 2001,
   85  to provide medical consent for a minor includes the power to
   86  consent to medically necessary surgical and general anesthesia
   87  services for the minor unless such services are excluded by the
   88  individual executing the health care surrogate for a minor or
   89  power of attorney.
   90  
   91  There shall be maintained in the treatment provider’s records of
   92  the minor documentation that a reasonable attempt was made to
   93  contact the person who has the power to consent.
   94         Section 2. Section 765.101, Florida Statutes, is amended to
   95  read:
   96         765.101 Definitions.—As used in this chapter:
   97         (1) “Advance directive” means a witnessed written document
   98  or oral statement in which instructions are given by a principal
   99  or in which the principal’s desires are expressed concerning any
  100  aspect of the principal’s health care or health information, and
  101  includes, but is not limited to, the designation of a health
  102  care surrogate, a living will, or an anatomical gift made
  103  pursuant to part V of this chapter.
  104         (2) “Attending physician” means the primary physician who
  105  has primary responsibility for the treatment and care of the
  106  patient while the patient receives such treatment or care in a
  107  hospital as defined in s. 395.002(12).
  108         (3) “Close personal friend” means any person 18 years of
  109  age or older who has exhibited special care and concern for the
  110  patient, and who presents an affidavit to the health care
  111  facility or to the primary attending or treating physician
  112  stating that he or she is a friend of the patient; is willing
  113  and able to become involved in the patient’s health care; and
  114  has maintained such regular contact with the patient so as to be
  115  familiar with the patient’s activities, health, and religious or
  116  moral beliefs.
  117         (4) “End-stage condition” means an irreversible condition
  118  that is caused by injury, disease, or illness which has resulted
  119  in progressively severe and permanent deterioration, and which,
  120  to a reasonable degree of medical probability, treatment of the
  121  condition would be ineffective.
  122         (5) “Health care” means care, services, or supplies related
  123  to the health of an individual and includes, but is not limited
  124  to, preventive, diagnostic, therapeutic, rehabilitative,
  125  maintenance, or palliative care, and counseling, service,
  126  assessment, or procedure with respect to the individual’s
  127  physical or mental condition or functional status or that affect
  128  the structure or function of the individual’s body.
  129         (6)(5) “Health care decision” means:
  130         (a) Informed consent, refusal of consent, or withdrawal of
  131  consent to any and all health care, including life-prolonging
  132  procedures and mental health treatment, unless otherwise stated
  133  in the advance directives.
  134         (b) The decision to apply for private, public, government,
  135  or veterans’ benefits to defray the cost of health care.
  136         (c) The right of access to health information all records
  137  of the principal reasonably necessary for a health care
  138  surrogate or proxy to make decisions involving health care and
  139  to apply for benefits.
  140         (d) The decision to make an anatomical gift pursuant to
  141  part V of this chapter.
  142         (7)(6) “Health care facility” means a hospital, nursing
  143  home, hospice, home health agency, or health maintenance
  144  organization licensed in this state, or any facility subject to
  145  part I of chapter 394.
  146         (8)(7) “Health care provider” or “provider” means any
  147  person licensed, certified, or otherwise authorized by law to
  148  administer health care in the ordinary course of business or
  149  practice of a profession.
  150         (9) “Health information” means any information, whether
  151  oral or recorded in any form or medium, as defined in 45 C.F.R.
  152  s. 160.103 and the Health Insurance Portability and
  153  Accountability Act of 1996, 42 U.S.C. s. 1320d, as amended,
  154  that:
  155         (a) Is created or received by a health care provider,
  156  health care facility, health plan, public health authority,
  157  employer, life insurer, school or university, or health care
  158  clearinghouse; and
  159         (b) Relates to the past, present, or future physical or
  160  mental health or condition of the principal; the provision of
  161  health care to the principal; or the past, present, or future
  162  payment for the provision of health care to the principal.
  163         (10)(8) “Incapacity” or “incompetent” means the patient is
  164  physically or mentally unable to communicate a willful and
  165  knowing health care decision. For the purposes of making an
  166  anatomical gift, the term also includes a patient who is
  167  deceased.
  168         (11)(9) “Informed consent” means consent voluntarily given
  169  by a person after a sufficient explanation and disclosure of the
  170  subject matter involved to enable that person to have a general
  171  understanding of the treatment or procedure and the medically
  172  acceptable alternatives, including the substantial risks and
  173  hazards inherent in the proposed treatment or procedures, and to
  174  make a knowing health care decision without coercion or undue
  175  influence.
  176         (12)(10) “Life-prolonging procedure” means any medical
  177  procedure, treatment, or intervention, including artificially
  178  provided sustenance and hydration, which sustains, restores, or
  179  supplants a spontaneous vital function. The term does not
  180  include the administration of medication or performance of
  181  medical procedure, when such medication or procedure is deemed
  182  necessary to provide comfort care or to alleviate pain.
  183         (13)(11) “Living will” or “declaration” means:
  184         (a) A witnessed document in writing, voluntarily executed
  185  by the principal in accordance with s. 765.302; or
  186         (b) A witnessed oral statement made by the principal
  187  expressing the principal’s instructions concerning life
  188  prolonging procedures.
  189         (14) “Minor’s principal” means a principal who is a natural
  190  guardian as defined in s. 744.301(1); legal custodian; or,
  191  subject to chapter 744, legal guardian of the person of a minor.
  192         (15)(12) “Persistent vegetative state” means a permanent
  193  and irreversible condition of unconsciousness in which there is:
  194         (a) The absence of voluntary action or cognitive behavior
  195  of any kind.
  196         (b) An inability to communicate or interact purposefully
  197  with the environment.
  198         (16)(13) “Physician” means a person licensed pursuant to
  199  chapter 458 or chapter 459.
  200         (17) “Primary physician” means a physician designated by an
  201  individual or the individual’s surrogate, proxy, or agent under
  202  a durable power of attorney, as provided in chapter 709, to have
  203  primary responsibility for the individual’s health care or, in
  204  the absence of a designation or if the designated physician is
  205  not reasonably available, a physician who undertakes the
  206  responsibility.
  207         (18)(14) “Principal” means a competent adult executing an
  208  advance directive and on whose behalf health care decisions are
  209  to be made or health care information is to be received, or
  210  both.
  211         (19)(15) “Proxy” means a competent adult who has not been
  212  expressly designated to make health care decisions for a
  213  particular incapacitated individual, but who, nevertheless, is
  214  authorized pursuant to s. 765.401 to make health care decisions
  215  for such individual.
  216         (20) “Reasonably available” means readily able to be
  217  contacted without undue effort and willing and able to act in a
  218  timely manner considering the urgency of the patient’s health
  219  care needs.
  220         (21)(16) “Surrogate” means any competent adult expressly
  221  designated by a principal to make health care decisions and to
  222  receive health information. The principal may stipulate whether
  223  the authority of the surrogate to make health care decisions or
  224  to receive health information is exercisable immediately without
  225  the necessity for a determination of incapacity or only upon the
  226  principal’s incapacity as provided in s. 765.204 on behalf of
  227  the principal upon the principal’s incapacity.
  228         (22)(17) “Terminal condition” means a condition caused by
  229  injury, disease, or illness from which there is no reasonable
  230  medical probability of recovery and which, without treatment,
  231  can be expected to cause death.
  232         Section 3. Subsections (3) through (6) of section 765.102,
  233  Florida Statutes, are renumbered as subsections (4) through (7),
  234  respectively, present subsections (2) and (3) are amended, and a
  235  new subsection (3) is added to that section, to read:
  236         765.102 Legislative findings and intent.—
  237         (2) To ensure that such right is not lost or diminished by
  238  virtue of later physical or mental incapacity, the Legislature
  239  intends that a procedure be established to allow a person to
  240  plan for incapacity by executing a document or orally
  241  designating another person to direct the course of his or her
  242  health care or receive his or her health information, or both,
  243  medical treatment upon his or her incapacity. Such procedure
  244  should be less expensive and less restrictive than guardianship
  245  and permit a previously incapacitated person to exercise his or
  246  her full right to make health care decisions as soon as the
  247  capacity to make such decisions has been regained.
  248         (3) The Legislature also recognizes that some competent
  249  adults may want to receive immediate assistance in making health
  250  care decisions or accessing health information, or both, without
  251  a determination of incapacity. The Legislature intends that a
  252  procedure be established to allow a person to designate a
  253  surrogate to make health care decisions or receive health
  254  information, or both, without the necessity for a determination
  255  of incapacity under this chapter.
  256         (4)(3) The Legislature recognizes that for some the
  257  administration of life-prolonging medical procedures may result
  258  in only a precarious and burdensome existence. In order to
  259  ensure that the rights and intentions of a person may be
  260  respected even after he or she is no longer able to participate
  261  actively in decisions concerning himself or herself, and to
  262  encourage communication among such patient, his or her family,
  263  and his or her physician, the Legislature declares that the laws
  264  of this state recognize the right of a competent adult to make
  265  an advance directive instructing his or her physician to
  266  provide, withhold, or withdraw life-prolonging procedures, or to
  267  designate another to make the health care treatment decision for
  268  him or her in the event that such person should become
  269  incapacitated and unable to personally direct his or her health
  270  medical care.
  271         Section 4. Subsection (1) of section 765.104, Florida
  272  Statutes, is amended to read:
  273         765.104 Amendment or revocation.—
  274         (1) An advance directive or designation of a surrogate may
  275  be amended or revoked at any time by a competent principal:
  276         (a) By means of a signed, dated writing;
  277         (b) By means of the physical cancellation or destruction of
  278  the advance directive by the principal or by another in the
  279  principal’s presence and at the principal’s direction;
  280         (c) By means of an oral expression of intent to amend or
  281  revoke; or
  282         (d) By means of a subsequently executed advance directive
  283  that is materially different from a previously executed advance
  284  directive.
  285         Section 5. Section 765.105, Florida Statutes, is amended to
  286  read:
  287         765.105 Review of surrogate or proxy’s decision.—
  288         (1) The patient’s family, the health care facility, or the
  289  primary attending physician, or any other interested person who
  290  may reasonably be expected to be directly affected by the
  291  surrogate or proxy’s decision concerning any health care
  292  decision may seek expedited judicial intervention pursuant to
  293  rule 5.900 of the Florida Probate Rules, if that person
  294  believes:
  295         (a)(1) The surrogate or proxy’s decision is not in accord
  296  with the patient’s known desires or the provisions of this
  297  chapter;
  298         (b)(2) The advance directive is ambiguous, or the patient
  299  has changed his or her mind after execution of the advance
  300  directive;
  301         (c)(3) The surrogate or proxy was improperly designated or
  302  appointed, or the designation of the surrogate is no longer
  303  effective or has been revoked;
  304         (d)(4) The surrogate or proxy has failed to discharge
  305  duties, or incapacity or illness renders the surrogate or proxy
  306  incapable of discharging duties;
  307         (e)(5) The surrogate or proxy has abused his or her powers;
  308  or
  309         (f)(6) The patient has sufficient capacity to make his or
  310  her own health care decisions.
  311         (2) This section does not apply to a patient who is not
  312  incapacitated and who has designated a surrogate who has
  313  immediate authority to make health care decisions and receive
  314  health information, or both, on behalf of the patient.
  315         Section 6. Subsection (1) of section 765.1103, Florida
  316  Statutes, is amended to read:
  317         765.1103 Pain management and palliative care.—
  318         (1) A patient shall be given information concerning pain
  319  management and palliative care when he or she discusses with the
  320  primary attending or treating physician, or such physician’s
  321  designee, the diagnosis, planned course of treatment,
  322  alternatives, risks, or prognosis for his or her illness. If the
  323  patient is incapacitated, the information shall be given to the
  324  patient’s health care surrogate or proxy, court-appointed
  325  guardian as provided in chapter 744, or attorney in fact under a
  326  durable power of attorney as provided in chapter 709. The court
  327  appointed guardian or attorney in fact must have been delegated
  328  authority to make health care decisions on behalf of the
  329  patient.
  330         Section 7. Section 765.1105, Florida Statutes, is amended
  331  to read:
  332         765.1105 Transfer of a patient.—
  333         (1) A health care provider or facility that refuses to
  334  comply with a patient’s advance directive, or the treatment
  335  decision of his or her surrogate or proxy, shall make reasonable
  336  efforts to transfer the patient to another health care provider
  337  or facility that will comply with the directive or treatment
  338  decision. This chapter does not require a health care provider
  339  or facility to commit any act which is contrary to the
  340  provider’s or facility’s moral or ethical beliefs, if the
  341  patient:
  342         (a) Is not in an emergency condition; and
  343         (b) Has received written information upon admission
  344  informing the patient of the policies of the health care
  345  provider or facility regarding such moral or ethical beliefs.
  346         (2) A health care provider or facility that is unwilling to
  347  carry out the wishes of the patient or the treatment decision of
  348  his or her surrogate or proxy because of moral or ethical
  349  beliefs must within 7 days either:
  350         (a) Transfer the patient to another health care provider or
  351  facility. The health care provider or facility shall pay the
  352  costs for transporting the patient to another health care
  353  provider or facility; or
  354         (b) If the patient has not been transferred, carry out the
  355  wishes of the patient or the patient’s surrogate or proxy,
  356  unless the provisions of s. 765.105 applies apply.
  357         Section 8. Subsections (1), (3), and (4) of section
  358  765.202, Florida Statutes, are amended, subsections (6) and (7)
  359  are renumbered as subsections (7) and (8), respectively, and a
  360  new subsection (6) is added to that section, to read:
  361         765.202 Designation of a health care surrogate.—
  362         (1) A written document designating a surrogate to make
  363  health care decisions for a principal or receive health
  364  information on behalf of a principal, or both, shall be signed
  365  by the principal in the presence of two subscribing adult
  366  witnesses. A principal unable to sign the instrument may, in the
  367  presence of witnesses, direct that another person sign the
  368  principal’s name as required herein. An exact copy of the
  369  instrument shall be provided to the surrogate.
  370         (3) A document designating a health care surrogate may also
  371  designate an alternate surrogate provided the designation is
  372  explicit. The alternate surrogate may assume his or her duties
  373  as surrogate for the principal if the original surrogate is not
  374  willing, able, or reasonably available unwilling or unable to
  375  perform his or her duties. The principal’s failure to designate
  376  an alternate surrogate shall not invalidate the designation of a
  377  surrogate.
  378         (4) If neither the designated surrogate nor the designated
  379  alternate surrogate is willing, able, or reasonably available
  380  able or willing to make health care decisions on behalf of the
  381  principal and in accordance with the principal’s instructions,
  382  the health care facility may seek the appointment of a proxy
  383  pursuant to part IV.
  384         (6) A principal may stipulate in the document that the
  385  authority of the surrogate to receive health information or make
  386  health care decisions or both is exercisable immediately without
  387  the necessity for a determination of incapacity as provided in
  388  s. 765.204.
  389         Section 9. Section 765.203, Florida Statutes, is amended to
  390  read:
  391         765.203 Suggested form of designation.—A written
  392  designation of a health care surrogate executed pursuant to this
  393  chapter may, but need not be, in the following form:
  394  
  395                DESIGNATION OF HEALTH CARE SURROGATE               
  396  
  397  I, ...name..., designate as my health care surrogate under s.
  398  765.202, Florida Statutes:
  399  
  400  Name: ...(name of health care surrogate)...
  401  Address: ...(address)...
  402  Phone: ...(telephone)...
  403  
  404  If my health care surrogate is not willing, able, or reasonably
  405  available to perform his or her duties, I designate as my
  406  alternate health care surrogate:
  407  
  408  Name: ...(name of alternate health care surrogate)...
  409  Address: ...(address)...
  410  Phone: ...(telephone)...
  411  
  412                    INSTRUCTIONS FOR HEALTH CARE                   
  413  
  414         I authorize my health care surrogate to:
  415         ...(Initial here)... Receive any of my health information,
  416  whether oral or recorded in any form or medium, that:
  417         1. Is created or received by a health care provider, health
  418  care facility, health plan, public health authority, employer,
  419  life insurer, school or university, or health care
  420  clearinghouse; and
  421         2. Relates to my past, present, or future physical or
  422  mental health or condition; the provision of health care to me;
  423  or the past, present, or future payment for the provision of
  424  health care to me.
  425  I further authorize my health care surrogate to:
  426         ...(Initial here)... Make all health care decisions for me,
  427  which means he or she has the authority to:
  428         1. Provide informed consent, refusal of consent, or
  429  withdrawal of consent to any and all of my health care,
  430  including life-prolonging procedures.
  431         2. Apply on my behalf for private, public, government, or
  432  veterans’ benefits to defray the cost of health care.
  433         3. Access my health information reasonably necessary for
  434  the health care surrogate to make decisions involving my health
  435  care and to apply for benefits for me.
  436         4. Decide to make an anatomical gift pursuant to part V of
  437  chapter 765, Florida Statutes.
  438         ...(Initial here)... Specific instructions and
  439  restrictions:...................................................
  440  ................................................................
  441  ................................................................
  442  
  443  To the extent I am capable of understanding, my health care
  444  surrogate shall keep me reasonably informed of all decisions
  445  that he or she has made on my behalf and matters concerning me.
  446  
  447  THIS HEALTH CARE SURROGATE DESIGNATION IS NOT AFFECTED BY MY
  448  SUBSEQUENT INCAPACITY EXCEPT AS PROVIDED IN CHAPTER 765, FLORIDA
  449  STATUTES.
  450  
  451  PURSUANT TO SECTION 765.104, FLORIDA STATUTES, I UNDERSTAND THAT
  452  I MAY, AT ANY TIME WHILE I RETAIN MY CAPACITY, REVOKE OR AMEND
  453  THIS DESIGNATION BY:
  454         (1) SIGNING A WRITTEN AND DATED INSTRUMENT WHICH EXPRESSES
  455  MY INTENT TO AMEND OR REVOKE THIS DESIGNATION;
  456         (2) PHYSICALLY DESTROYING THIS DESIGNATION THROUGH MY OWN
  457  ACTION OR BY THAT OF ANOTHER PERSON IN MY PRESENCE AND UNDER MY
  458  DIRECTION;
  459         (3) VERBALLY EXPRESSING MY INTENTION TO AMEND OR REVOKE
  460  THIS DESIGNATION; OR
  461         (4) SIGNING A NEW DESIGNATION THAT IS MATERIALLY DIFFERENT
  462  FROM THIS DESIGNATION.
  463  
  464  MY HEALTH CARE SURROGATE’S AUTHORITY BECOMES EFFECTIVE WHEN MY
  465  PRIMARY PHYSICIAN DETERMINES THAT I AM UNABLE TO MAKE MY OWN
  466  HEALTH CARE DECISIONS UNLESS I INITIAL EITHER OR BOTH OF THE
  467  FOLLOWING BOXES:
  468  
  469  IF I INITIAL THIS BOX [....], MY HEALTH CARE SURROGATE’S
  470  AUTHORITY TO RECEIVE MY HEALTH INFORMATION TAKES EFFECT
  471  IMMEDIATELY.
  472  
  473  IF I INITIAL THIS BOX [....], MY HEALTH CARE SURROGATE’S
  474  AUTHORITY TO MAKE HEALTH CARE DECISIONS FOR ME TAKES EFFECT
  475  IMMEDIATELY. PURSUANT TO SECTION 765.204(3), ANY INSTRUCTIONS OR
  476  HEALTH CARE DECISIONS I MAKE, EITHER VERBALLY OR IN WRITING,
  477  WHILE I POSSESS CAPACITY SHALL SUPERCEDE ANY INSTRUCTIONS OR
  478  HEALTH CARE DECISIONS MADE BY MY SURROGATE THAT ARE IN MATERIAL
  479  CONFLICT WITH THOSE MADE BY ME.
  480  
  481  SIGNATURES: Sign and date the form here:
  482  ...(date)... ...(sign your name)...
  483  ...(address)... ...(print your name)...
  484  ...(city)... ...(state)...
  485  
  486  SIGNATURES OF WITNESSES:
  487  First witness			 Second witness			
  488  ...(print name)... ...(print name)...
  489  ...(address)... ...(address)...
  490  ...(city)... ...(state)... ...(city)... ...(state)...
  491  ...(signature of witness)... ...(signature of witness)...
  492  ...(date)... ...(date)...
  493  
  494  Name:....(Last)....(First)....(Middle Initial)....
  495         In the event that I have been determined to be
  496  incapacitated to provide informed consent for medical treatment
  497  and surgical and diagnostic procedures, I wish to designate as
  498  my surrogate for health care decisions:
  499  
  500  Name:...........................................................
  501  Address:........................................................
  502  ........................  Zip Code:........
  503  Phone:................
  504         If my surrogate is unwilling or unable to perform his or
  505  her duties, I wish to designate as my alternate surrogate:
  506  Name:...........................................................
  507  Address:........................................................
  508  ........................  Zip Code:........
  509  Phone:................
  510         I fully understand that this designation will permit my
  511  designee to make health care decisions and to provide, withhold,
  512  or withdraw consent on my behalf; to apply for public benefits
  513  to defray the cost of health care; and to authorize my admission
  514  to or transfer from a health care facility.
  515  Additional instructions (optional):.............................
  516  ................................................................
  517  ................................................................
  518  ................................................................
  519         I further affirm that this designation is not being made as
  520  a condition of treatment or admission to a health care facility.
  521  I will notify and send a copy of this document to the following
  522  persons other than my surrogate, so they may know who my
  523  surrogate is.
  524  Name:...........................................................
  525  Name:...........................................................
  526  ................................................................
  527  ................................................................
  528  Signed:.........................................................
  529  Date:...........................................................
  530  Witnesses:1.	                                                      
  531    2.	                                                              
  532         Section 10. Section 765.2035, Florida Statutes, is created
  533  to read:
  534         765.2035 Designation of a health care surrogate for a
  535  minor.—
  536         (1) A natural guardian as defined in s. 744.301(1), legal
  537  custodian, or legal guardian of the person of a minor may
  538  designate a competent adult to serve as a surrogate to make
  539  health care decisions for the minor. Such designation shall be
  540  made by a written document signed by the minor’s principal in
  541  the presence of two subscribing adult witnesses. If a minor’s
  542  principal is unable to sign the instrument, the principal may,
  543  in the presence of witnesses, direct that another person sign
  544  the minor’s principal’s name as required by this subsection. An
  545  exact copy of the instrument shall be provided to the surrogate.
  546         (2) The person designated as surrogate may not act as
  547  witness to the execution of the document designating the health
  548  care surrogate.
  549         (3) A document designating a health care surrogate may also
  550  designate an alternate surrogate; however, such designation must
  551  be explicit. The alternate surrogate may assume his or her
  552  duties as surrogate if the original surrogate is not willing,
  553  able, or reasonably available to perform his or her duties. The
  554  minor’s principal’s failure to designate an alternate surrogate
  555  does not invalidate the designation.
  556         (4) If neither the designated surrogate or the designated
  557  alternate surrogate is willing, able, or reasonably available to
  558  make health care decisions for the minor on behalf of the
  559  minor’s principal and in accordance with the minor’s principal’s
  560  instructions, s. 743.0645(2) shall apply as if no surrogate had
  561  been designated.
  562         (5) A natural guardian as defined in s. 744.301(1), legal
  563  custodian, or legal guardian of the person of a minor may
  564  designate a separate surrogate to consent to mental health
  565  treatment for the minor. However, unless the document
  566  designating the health care surrogate expressly states
  567  otherwise, the court shall assume that the health care surrogate
  568  authorized to make health care decisions for a minor under this
  569  chapter is also the minor’s principal’s choice to make decisions
  570  regarding mental health treatment for the minor.
  571         (6) Unless the document states a time of termination, the
  572  designation shall remain in effect until revoked by the minor’s
  573  principal. An otherwise valid designation of a surrogate for a
  574  minor shall not be invalid solely because it was made before the
  575  birth of the minor.
  576         (7) A written designation of a health care surrogate
  577  executed pursuant to this section establishes a rebuttable
  578  presumption of clear and convincing evidence of the minor’s
  579  principal’s designation of the surrogate and becomes effective
  580  pursuant to s. 743.0645(2)(a).
  581         Section 11. Section 765.2038, Florida Statutes, is created
  582  to read:
  583         765.2038 Designation of health care surrogate for a minor;
  584  suggested form.—A written designation of a health care surrogate
  585  for a minor executed pursuant to this chapter may, but need not
  586  be, in the following form:
  587                DESIGNATION OF HEALTH CARE SURROGATE               
  588                              FOR MINOR                            
  589         I/We, _...(name/names)..., the [....] natural guardian(s)
  590  as defined in s. 744.301(1), Florida Statutes; [....] legal
  591  custodian(s); [....] legal guardian(s) [check one] of the
  592  following minor(s):
  593  
  594  .......................................;
  595  .......................................;
  596  .......................................,
  597  
  598  pursuant to s. 765.2035, Florida Statutes, designate the
  599  following person to act as my/our surrogate for health care
  600  decisions for such minor(s) in the event that I/we am/are not
  601  able or reasonably available to provide consent for medical
  602  treatment and surgical and diagnostic procedures:
  603  
  604  Name: ...(name)...
  605  Address: ...(address)...
  606  Zip Code: ...(zip code)...
  607  Phone: ...(telephone)...
  608  
  609         If my/our designated health care surrogate for a minor is
  610  not willing, able, or reasonably available to perform his or her
  611  duties, I/we designate the following person as my/our alternate
  612  health care surrogate for a minor:
  613  
  614  Name: ...(name)...
  615  Address: ...(address)...
  616  Zip Code: ...(zip code)...
  617  Phone: ...(telephone)...
  618  
  619         I/We authorize and request all physicians, hospitals, or
  620  other providers of medical services to follow the instructions
  621  of my/our surrogate or alternate surrogate, as the case may be,
  622  at any time and under any circumstances whatsoever, with regard
  623  to medical treatment and surgical and diagnostic procedures for
  624  a minor, provided the medical care and treatment of any minor is
  625  on the advice of a licensed physician.
  626  
  627         I/We fully understand that this designation will permit
  628  my/our designee to make health care decisions for a minor and to
  629  provide, withhold, or withdraw consent on my/our behalf, to
  630  apply for public benefits to defray the cost of health care, and
  631  to authorize the admission or transfer of a minor to or from a
  632  health care facility.
  633  
  634         I/We will notify and send a copy of this document to the
  635  following person(s) other than my/our surrogate, so that they
  636  may know the identity of my/our surrogate:
  637  
  638  Name: ...(name)...
  639  Name: ...(name)...
  640  
  641  Signed: ...(signature)...
  642  Date: ...(date)...
  643  
  644  WITNESSES:
  645  1. ...(witness)...
  646  2. ...(witness)...
  647         Section 12. Section 765.204, Florida Statutes, is amended
  648  to read:
  649         765.204 Capacity of principal; procedure.—
  650         (1) A principal is presumed to be capable of making health
  651  care decisions for herself or himself unless she or he is
  652  determined to be incapacitated. Incapacity may not be inferred
  653  from the person’s voluntary or involuntary hospitalization for
  654  mental illness or from her or his intellectual disability.
  655         (2) If a principal’s capacity to make health care decisions
  656  for herself or himself or provide informed consent is in
  657  question, the primary or attending physician shall evaluate the
  658  principal’s capacity and, if the evaluating physician concludes
  659  that the principal lacks capacity, enter that evaluation in the
  660  principal’s medical record. If the evaluating attending
  661  physician has a question as to whether the principal lacks
  662  capacity, another physician shall also evaluate the principal’s
  663  capacity, and if the second physician agrees that the principal
  664  lacks the capacity to make health care decisions or provide
  665  informed consent, the health care facility shall enter both
  666  physician’s evaluations in the principal’s medical record. If
  667  the principal has designated a health care surrogate or has
  668  delegated authority to make health care decisions to an attorney
  669  in fact under a durable power of attorney, the health care
  670  facility shall notify such surrogate or attorney in fact in
  671  writing that her or his authority under the instrument has
  672  commenced, as provided in chapter 709 or s. 765.203. If an
  673  attending physician determines that the principal lacks
  674  capacity, the hospital in which the attending physician made
  675  such a determination shall notify the principal’s primary
  676  physician of the determination.
  677         (3) The surrogate’s authority shall commence either upon a
  678  determination under subsection (2) that the principal lacks
  679  capacity, or upon a stipulation of such authority pursuant to s.
  680  765.101(21). and Such authority shall remain in effect until a
  681  determination that the principal has regained such capacity when
  682  the authority commenced as a result of incapacity, or until its
  683  revocation in such cases where the authority commenced
  684  immediately pursuant to 765.101(21). Upon commencement of the
  685  surrogate’s authority, a surrogate who is not the principal’s
  686  spouse shall notify the principal’s spouse or adult children of
  687  the principal’s designation of the surrogate. Except where the
  688  principal provided immediately exercisable authority to the
  689  surrogate pursuant to s. 765.101(21), in the event the primary
  690  or attending physician determines that the principal has
  691  regained capacity, the authority of the surrogate shall cease,
  692  but shall recommence if the principal subsequently loses
  693  capacity as determined pursuant to this section. A health care
  694  provider will not be liable for relying upon health care
  695  decisions made by a surrogate while a principal lacks capacity.
  696  At any time when a principal lacks capacity, a health care
  697  decision made on a principal’s behalf by a surrogate shall be
  698  effective to the same extent as a decision made by the
  699  principal. When a principal possesses capacity, health care
  700  decisions of the principal will take precedence over decisions
  701  made by the surrogate that present a material conflict.
  702         (4) Notwithstanding subsections (2) and (3), if the
  703  principal has designated a health care surrogate and has
  704  stipulated that the authority of the surrogate is to take effect
  705  immediately, or has appointed an agent under a durable power of
  706  attorney as provided in chapter 709 to make health care
  707  decisions for the principal, the health care facility shall
  708  notify such surrogate or agent in writing when a determination
  709  of incapacity has been entered into the principal’s medical
  710  record.
  711         (5)(4) A determination made pursuant to this section that a
  712  principal lacks capacity to make health care decisions shall not
  713  be construed as a finding that a principal lacks capacity for
  714  any other purpose.
  715         (6)(5)If In the event the surrogate is required to consent
  716  to withholding or withdrawing life-prolonging procedures, the
  717  provisions of part III applies shall apply.
  718         Section 13. Paragraph (d) of subsection (1) and subsection
  719  (2) of section 765.205, Florida Statutes, are amended to read:
  720         765.205 Responsibility of the surrogate.—
  721         (1) The surrogate, in accordance with the principal’s
  722  instructions, unless such authority has been expressly limited
  723  by the principal, shall:
  724         (d) Be provided access to the appropriate health
  725  information medical records of the principal.
  726         (2) The surrogate may authorize the release of health
  727  information and medical records to appropriate persons to ensure
  728  the continuity of the principal’s health care and may authorize
  729  the admission, discharge, or transfer of the principal to or
  730  from a health care facility or other facility or program
  731  licensed under chapter 400 or chapter 429.
  732         Section 14. Subsection (2) of section 765.302, Florida
  733  Statutes, is amended to read:
  734         765.302 Procedure for making a living will; notice to
  735  physician.—
  736         (2) It is the responsibility of the principal to provide
  737  for notification to her or his primary attending or treating
  738  physician that the living will has been made. In the event the
  739  principal is physically or mentally incapacitated at the time
  740  the principal is admitted to a health care facility, any other
  741  person may notify the physician or health care facility of the
  742  existence of the living will. A primary An attending or treating
  743  physician or health care facility which is so notified shall
  744  promptly make the living will or a copy thereof a part of the
  745  principal’s medical records.
  746         Section 15. Subsection (1) of section 765.303, Florida
  747  Statutes, is amended to read:
  748         765.303 Suggested form of a living will.—
  749         (1) A living will may, BUT NEED NOT, be in the following
  750  form:
  751                             Living Will                           
  752         Declaration made this .... day of ...., ...(year)..., I,
  753  ........, willfully and voluntarily make known my desire that my
  754  dying not be artificially prolonged under the circumstances set
  755  forth below, and I do hereby declare that, if at any time I am
  756  incapacitated and
  757         ...(initial)... I have a terminal condition
  758         or ...(initial)... I have an end-stage condition
  759         or ...(initial)... I am in a persistent vegetative state
  760  and if my primary attending or treating physician and another
  761  consulting physician have determined that there is no reasonable
  762  medical probability of my recovery from such condition, I direct
  763  that life-prolonging procedures be withheld or withdrawn when
  764  the application of such procedures would serve only to prolong
  765  artificially the process of dying, and that I be permitted to
  766  die naturally with only the administration of medication or the
  767  performance of any medical procedure deemed necessary to provide
  768  me with comfort care or to alleviate pain.
  769         It is my intention that this declaration be honored by my
  770  family and physician as the final expression of my legal right
  771  to refuse medical or surgical treatment and to accept the
  772  consequences for such refusal.
  773         In the event that I have been determined to be unable to
  774  provide express and informed consent regarding the withholding,
  775  withdrawal, or continuation of life-prolonging procedures, I
  776  wish to designate, as my surrogate to carry out the provisions
  777  of this declaration:
  778  
  779  Name:...........................................................
  780  Address:........................................................
  781  ........................  Zip Code:........
  782  Phone:................
  783         I understand the full import of this declaration, and I am
  784  emotionally and mentally competent to make this declaration.
  785  Additional Instructions (optional):
  786  ................................................................
  787  ................................................................
  788  ................................................................
  789                          ....(Signed)....                         
  790                           ....Witness....                         
  791                           ....Address....                         
  792                            ....Phone....                          
  793                           ....Witness....                         
  794                           ....Address....                         
  795                            ....Phone....                          
  796         Section 16. Subsection (1) of section 765.304, Florida
  797  Statutes, is amended to read:
  798         765.304 Procedure for living will.—
  799         (1) If a person has made a living will expressing his or
  800  her desires concerning life-prolonging procedures, but has not
  801  designated a surrogate to execute his or her wishes concerning
  802  life-prolonging procedures or designated a surrogate under part
  803  II, the person’s primary attending physician may proceed as
  804  directed by the principal in the living will. In the event of a
  805  dispute or disagreement concerning the primary attending
  806  physician’s decision to withhold or withdraw life-prolonging
  807  procedures, the primary attending physician shall not withhold
  808  or withdraw life-prolonging procedures pending review under s.
  809  765.105. If a review of a disputed decision is not sought within
  810  7 days following the primary attending physician’s decision to
  811  withhold or withdraw life-prolonging procedures, the primary
  812  attending physician may proceed in accordance with the
  813  principal’s instructions.
  814         Section 17. Section 765.306, Florida Statutes, is amended
  815  to read:
  816         765.306 Determination of patient condition.—In determining
  817  whether the patient has a terminal condition, has an end-stage
  818  condition, or is in a persistent vegetative state or may recover
  819  capacity, or whether a medical condition or limitation referred
  820  to in an advance directive exists, the patient’s primary
  821  attending or treating physician and at least one other
  822  consulting physician must separately examine the patient. The
  823  findings of each such examination must be documented in the
  824  patient’s medical record and signed by each examining physician
  825  before life-prolonging procedures may be withheld or withdrawn.
  826         Section 18. Section 765.404, Florida Statutes, is amended
  827  to read:
  828         765.404 Persistent vegetative state.—For persons in a
  829  persistent vegetative state, as determined by the person’s
  830  primary attending physician in accordance with currently
  831  accepted medical standards, who have no advance directive and
  832  for whom there is no evidence indicating what the person would
  833  have wanted under such conditions, and for whom, after a
  834  reasonably diligent inquiry, no family or friends are available
  835  or willing to serve as a proxy to make health care decisions for
  836  them, life-prolonging procedures may be withheld or withdrawn
  837  under the following conditions:
  838         (1) The person has a judicially appointed guardian
  839  representing his or her best interest with authority to consent
  840  to medical treatment; and
  841         (2) The guardian and the person’s primary attending
  842  physician, in consultation with the medical ethics committee of
  843  the facility where the patient is located, conclude that the
  844  condition is permanent and that there is no reasonable medical
  845  probability for recovery and that withholding or withdrawing
  846  life-prolonging procedures is in the best interest of the
  847  patient. If there is no medical ethics committee at the
  848  facility, the facility must have an arrangement with the medical
  849  ethics committee of another facility or with a community-based
  850  ethics committee approved by the Florida Bio-ethics Network. The
  851  ethics committee shall review the case with the guardian, in
  852  consultation with the person’s primary attending physician, to
  853  determine whether the condition is permanent and there is no
  854  reasonable medical probability for recovery. The individual
  855  committee members and the facility associated with an ethics
  856  committee shall not be held liable in any civil action related
  857  to the performance of any duties required in this subsection.
  858         Section 19. Paragraph (c) of subsection (1) of section
  859  765.516, Florida Statutes, is amended to read:
  860         765.516 Donor amendment or revocation of anatomical gift.—
  861         (1) A donor may amend the terms of or revoke an anatomical
  862  gift by:
  863         (c) A statement made during a terminal illness or injury
  864  addressed to the primary an attending physician, who must
  865  communicate the revocation of the gift to the procurement
  866  organization.
  867         Section 20. This act shall take effect October 1, 2015.