Designating Health Care Surrogates and Living Wills in Florida: A Palm Beach Guide

In Florida, a health care surrogate is a person you name in writing to make medical decisions for you when you can’t speak for yourself, and a living will is a separate document that states your own wishes about life-prolonging treatment if you are terminally ill, in an end-stage condition, or persistently vegetative. Together they form the backbone of medical advance planning under Florida Statutes Chapter 765. One appoints a decision-maker; the other tells everyone what you want.

I’ve sat across the desk from more Palm Beach retirees and snowbirds than I can count who assumed a will covered all of this. It doesn’t. A last will and testament speaks only after you die. These documents speak while you’re alive but incapacitated, which for most people is the harder and more frightening stretch. If you split the year between Florida and a northern home, the stakes are higher still, because you may be hospitalized in a state where nobody knows your family.

What a Health Care Surrogate Actually Does in Florida

The designation of a health care surrogate is governed by Florida Statute § 765.202. You sign a written document, in the presence of two adult witnesses, naming a competent adult to make health care decisions for you. At least one witness cannot be your spouse or a blood relative. Your surrogate cannot serve as a witness.

What surprises people is the scope. A Florida health care surrogate can:

• Consent to or refuse medical treatment, surgery, and diagnostic procedures;
• Access your medical records — Florida’s surrogate designation acts as your HIPAA authorization;
• Apply for public benefits like Medicaid or Medicare on your behalf for health purposes;
• Decide where you receive care, including admission to a nursing or assisted-living facility.

You can name an alternate surrogate, and you should. The first person you’d pick — your spouse — may be in the same car accident, or may be the one in the hospital bed beside you. Naming a backup is the difference between a smooth process and a courtroom.

The Underrated Option: Surrogate Authority While You’re Still Competent

Since 2015, Florida law has allowed you to grant your surrogate authority to act immediately, even before you lose capacity, if you check that election on the form (see § 765.204). This is enormously practical. It lets your spouse or adult child speak to your doctors and pull your records the same afternoon you’re admitted, without waiting for two physicians to formally declare you incapacitated. Most of my clients want this. A few — those who value tight privacy — do not. It’s a genuine choice, not a default.

What a Florida Living Will Covers (and Doesn’t)

A living will, authorized by Florida Statute § 765.302, is your personal declaration. It tells your physicians and family that if you reach a terminal condition, an end-stage condition, or a persistent vegetative state, and there’s no reasonable medical probability of recovery, you do not want life-prolonging procedures that merely postpone death.

Three points trip people up:

1. It only kicks in at the edge of life. A living will does nothing for a broken hip or a stroke you’ll recover from. It addresses the narrow, awful situations where treatment only prolongs dying.
2. You decide on nutrition and hydration separately. Florida’s statutory form lets you specifically initial whether artificial feeding and fluids count as “life-prolonging procedures” you want withheld. Don’t leave it blank — that ambiguity is exactly what tears families apart.
3. It is not a DNR. A living will is a planning document signed with witnesses. A Do Not Resuscitate Order (the yellow Florida DNRO form, signed by you and a physician) is an emergency medical order that paramedics actually honor at the scene. They’re different tools.

The execution formalities mirror the surrogate designation: two witnesses, at least one of whom is neither your spouse nor a blood relative. Notarization is not required for either document in Florida, though it never hurts.

Why Snowbirds and Seasonal Residents Need Both — Carefully

Here’s the practical reality for Palm Beach part-time residents. If you’re admitted to a hospital in New York, Ohio, or Connecticut, the staff there will look for documents that satisfy their rules. Florida law says out-of-state advance directives are valid here if they were validly executed where signed (§ 765.112). Most states extend the same courtesy. But “most” is not “all,” and a frantic family member waving a Florida form at a Manhattan ICU desk at 2 a.m. is not the moment to discover the exception.

My standard advice for seasonal clients is straightforward:

• Execute a robust Florida set — surrogate designation and living will — that meets Florida’s formalities.
• If you maintain a true second residence and spend serious time there, have a coordinated set drafted for that state too, so neither document surprises the other.
• Tell your surrogate where the originals live, and give your primary physicians in both states a copy. A document nobody can find is worthless.

If your estate also includes property or family in New York, you’ll want your medical directives to dovetail with your testamentary documents. Our colleagues handle and can make sure your northern and Florida plans don’t contradict each other. Coordination matters most when there’s a dependent involved — for a child or relative with disabilities, the medical plan should be built alongside a so that care decisions and benefit eligibility don’t work against each other.

Health Care Surrogate vs. Power of Attorney: Don’t Confuse Them

A durable power of attorney under Florida’s Power of Attorney Act (Chapter 709) handles your financial and legal affairs — paying bills, managing accounts, signing contracts. A health care surrogate handles your medical affairs. They are not interchangeable, and one is not a substitute for the other.

A complete Florida plan for a retiree usually pairs all of these documents. The surrogate makes the treatment call; the agent under the power of attorney writes the check to the rehab facility; the living will speaks to the end-of-life questions the surrogate would otherwise have to guess at. Leave a gap and you risk a guardianship proceeding — a public, expensive court process where a judge, not your family, appoints someone to run your life. Avoiding guardianship is, frankly, the whole point of doing this paperwork in advance.

What Happens If You Name No One

Florida doesn’t leave you in a void, but you won’t love the result. Under the health care “proxy” statute (§ 765.401), if you haven’t designated a surrogate, the law selects a decision-maker from a fixed priority list — guardian, then spouse, then adult child, then parent, then sibling, and so on down the line. The problem is that the list can’t read your mind, it can put a long-estranged relative ahead of the partner you actually trust, and when adult children disagree, there’s no tiebreaker except a courtroom. Naming your own surrogate replaces a rigid statutory ranking with the person you’d actually choose.

Keeping Your Documents Current

An advance directive is not a one-and-done. Revisit yours after any major life event: a move to Florida, a divorce, the death of the surrogate you named, a new diagnosis, or a child reaching adulthood and becoming a sensible choice for the role. You can revoke or amend at any time while you have capacity — by a signed writing, by physically destroying the document, or even orally to your health care provider (§ 765.104). Tell the people who hold copies whenever you change something.

Our Florida estate planning team helps Palm Beach families build and maintain these directives as part of a complete plan; you can read more about our or start with the basics on our wills page. If you’re weighing how these medical documents fit alongside probate avoidance, our overview of Florida probate explains why getting the living side right also smooths what happens later.

The Bottom Line

For a Florida retiree or snowbird, the health care surrogate and the living will are two halves of the same shield. One names the person you trust to decide; the other relieves that person of an impossible guess at the hardest moment. Execute both, keep them current, store them where your family can reach them, and coordinate them with the rest of your estate plan. It’s a quiet afternoon’s work that spares the people you love a crisis they’d otherwise face blind.

Questions about your own situation? Reach out to our Palm Beach office — these conversations are easier than people fear, and far easier than the alternative.

Frequently Asked Questions

Do I need both a health care surrogate and a living will in Florida, or is one enough?

You need both, because they do different jobs. The health care surrogate designation (Fla. Stat. 765.202) names a person to make medical decisions when you can’t, covering everything from surgery to nursing-home admission. The living will (Fla. Stat. 765.302) states your own wishes about life-prolonging treatment in terminal, end-stage, or persistent vegetative conditions. The surrogate makes the call; the living will tells them what you want at the very end.

Does a Florida living will require a notary?

No. Florida requires a living will and a health care surrogate designation to be signed in the presence of two adult witnesses, at least one of whom is not your spouse or a blood relative. Notarization is not legally required for either, though some people choose to notarize for extra assurance, especially if the document may be presented out of state.

Will my Florida advance directive be honored if I'm hospitalized up north as a snowbird?

Usually, yes. Florida Statute 765.112 recognizes out-of-state directives that were validly executed elsewhere, and most states reciprocate. But rules vary, so if you maintain a genuine second residence, it’s wise to have a coordinated set of documents that satisfies both states and to give physicians in each location a copy.

What's the difference between a health care surrogate and a power of attorney?

A health care surrogate handles medical decisions under Chapter 765. A durable power of attorney handles financial and legal matters under Chapter 709 — paying bills, managing accounts, signing contracts. They are separate documents covering separate areas, and a complete plan for a retiree typically includes both, plus a living will.

What happens if I never name a health care surrogate in Florida?

Under Florida’s proxy statute (765.401), the law picks a decision-maker from a fixed priority list: guardian, spouse, adult child, parent, sibling, and so on. That ranking can’t account for your actual relationships, may favor someone you wouldn’t choose, and offers no tiebreaker when family members disagree — which can force a guardianship court proceeding. Naming your own surrogate avoids all of that.