The Florida Senate

765.204  Capacity of principal; procedure.--

(1)  A principal is presumed to be capable of making health care decisions for herself or himself unless she or he is determined to be incapacitated. Incapacity may not be inferred from the person's voluntary or involuntary hospitalization for mental illness or from her or his mental retardation.

(2)  If a principal's capacity to make health care decisions for herself or himself or provide informed consent is in question, the attending physician shall evaluate the principal's capacity. If the attending physician concludes that the principal lacks such capacity, another physician shall evaluate the principal's capacity. If the second physician agrees that the principal lacks the capacity to make health care decisions or provide informed consent, the health care facility shall enter both physicians' evaluations in the principal's clinical record and, if the principal has designated a health care surrogate, shall notify such surrogate in writing that her or his authority under the instrument has commenced.

(3)  The surrogate's authority shall commence upon a determination under subsection (2) that the principal lacks capacity, and such authority shall remain in effect until a determination that the principal has regained such capacity. Upon commencement of the surrogate's authority, a surrogate who is not the principal's spouse shall notify the principal's spouse or adult children of the principal's designation of the surrogate. In the event the attending physician determines that the principal has regained capacity, the authority of the surrogate shall cease, but shall recommence if the principal subsequently loses capacity as determined pursuant to this section.

(4)  A determination made pursuant to this section that a principal lacks capacity to make health care decisions shall not be construed as a finding that a principal lacks capacity for any other purpose.

(5)  In the event the surrogate is required to consent to withholding or withdrawing life-prolonging procedures, the provisions of part III shall apply.

History.--s. 3, ch. 92-199; s. 1146, ch. 97-102.