By Michael T. Lahti
In a substantive change to its laws, Florida now allows a Designation of Health Care Surrogate, or“DHCS,”, to be effective immediately upon signing, rather than empowering the surrogate only when the patient's physician(s) have determined that he or she is no longer capable of making those decisions.
This question gives the client the choice of using that new approach or continuing the traditional requirement of a finding of incapacity. This is a new theory that will require some fleshing out from experience to see how it works in the real world; the legislature was quick to point out in its suggested form under §765.203 that the principal's decisions are controlling ("While I have decision-making capacity, my wishes are controlling and my physicians and health care providers must clearly communicate to me the treatment plan or any change to the treatment plan prior to its implementation.")
The statutory language dealing with capacity (§765.204(1)) is equally clear: "A principal is presumed to be capable of making health care decisions for herself or himself unless she or he is determined to be incapacitated. While a principal has decision-making capacity, the principal's wishes are controlling." Likewise, the rest of §765.204 expounds on conditions and procedures if or when the principal is deemed to be incapacitated. Consequently, one wonders about the usefulness of this new provision because it seems a decision will always be made by medical personnel about whether the principal has capacity, even if the Designated Surrogate has immediate powers.
There are two situations that might make a difference: first, if the treatment options are presented to the patient (whether or not competent to understand them) and the Surrogate and patient both agree, that is a win-win for the doctors. Secondly, if the Surrogate requests medical information, an immediately exercisable Designation will arguably provide better authority for that release. This has been contentious under the old law when the position was taken that the Surrogate's role-and thus entitlement to information-didn't arise until the patient was determined to be incapacitated, but no information was available to the Surrogate to contest the finding of capacity. The circularity of that reasoning was not lost on the lawmakers. (This, by the way, is an excellent reason to have a well prepared HIPAA Authorization, which Lahti, Lahti & O’Neill, PC has been promoting for years.)