Health care surrogate and living will in Florida: signing rules, powers, limits and who decides without one
How chapter 765 works: who signs a health care surrogate designation and a living will, when the surrogate's authority starts, what a surrogate cannot decide unless the document says so, who decides without a document, and how to revoke.
Florida's advance directive law is chapter 765, Fla. Stat. (2026). An advance directive is a witnessed written document or oral statement of instructions about the principal's health care or health information; it includes a designation of a health care surrogate, a living will and an anatomical gift (§ 765.101(1)). The documents do different jobs and are signed under different rules. The Sources section lists each citation, last checked October 17, 2026.
- Surrogate designation: signed in the presence of two adult witnesses. At least one witness must be neither the principal's spouse nor a blood relative, and the surrogate cannot witness (§ 765.202(1), (2)).
- Living will: a competent adult directs life-prolonging procedures for a terminal condition, an end-stage condition or a persistent vegetative state. Two witnesses sign, one of whom is neither a spouse nor a blood relative (§ 765.302(1)).
- Start of the surrogate's authority: on a physician's determination of incapacity, or immediately if the document says so (§ 765.204(3), § 765.202(6)).
- No document: the proxy list in § 765.401(1) applies, starting with a court-appointed guardian and then the spouse.
- Court filing: § 765.202 requires signing and witnesses and says nothing about filing the designation with a court. Give an exact copy to the surrogate (§ 765.202(1)).
The documents and what each does
| Document | What it does | Signing or source rule |
|---|---|---|
| Designation of health care surrogate | Names a person to make health care decisions, receive health information, or both. | Signed by the principal before two subscribing adult witnesses (§ 765.202(1)) |
| Living will | States the principal's instructions about life-prolonging procedures in three conditions. | Principal signs before two subscribing witnesses (§ 765.302(1)) |
| Power of attorney with health care authority | A durable power of attorney may give the agent all health care decisions only if the authority is specifically granted. | § 709.2201(2)(c) |
| Do not resuscitate order (DNRO) | An order on Department of Health Form DH 1896, signed by the patient's physician or physician assistant and by the patient or, if incapacitated, the surrogate, proxy, guardian or attorney in fact with delegated health care authority. EMTs and paramedics honor it outside a hospital or facility when printed on yellow paper. It does not expire. | § 401.45(3); Florida Department of Health |
| Anatomical gift | A gift of the body or organs after death, made by a document or donor registry entry. A health care surrogate cannot modify or deny a donor's gift after death. | § 765.512(1)(b) |
| HIPAA authorization | A written authorization for a covered entity to disclose health information. A covered entity treats a person with authority to make health care decisions for an adult as the personal representative. | 45 C.F.R. § 164.508; 45 C.F.R. § 164.502(g) |
The DNRO is separate from a living will: the Department of Health states that EMS personnel are required to honor the form only if it is printed on yellow paper. See the Florida Bar consumer pamphlet for further reading and the AHCA/FloridaHealthFinder guide with sample forms.
The health care surrogate
A surrogate is a competent adult expressly designated by the principal to make health care decisions and receive health information. The principal states whether the authority starts immediately or only on incapacity (§ 765.101(21)).
- Signing. The principal signs in the presence of two subscribing adult witnesses. A principal unable to sign may direct another person to sign in the presence of the witnesses (§ 765.202(1)).
- Witness limits. The surrogate cannot be a witness. At least one witness is neither the principal's spouse nor a blood relative (§ 765.202(2)).
- Alternate. The document may name an alternate surrogate if the designation is explicit. The alternate acts if the original is not willing, able or reasonably available (§ 765.202(3)).
- Duration. Unless the document states a time of termination, the designation remains in effect until revoked (§ 765.202(7)). A signed designation creates a rebuttable presumption of clear and convincing evidence of the designation (§ 765.202(8)).
- Capacity. A principal is presumed capable. While the principal has capacity, the principal's wishes control. If capacity is in question, the attending or primary physician evaluates it; if the physician has a question, a second physician also evaluates it. The facility records the evaluations in the medical record (§ 765.204(1), (2)).
- Start and stop. Authority commences on a determination that the principal lacks capacity, or immediately if the document so stipulates. It ends if the physician determines the principal has regained capacity, then recommences if capacity is lost again. A surrogate who is not the spouse must notify the principal's spouse or adult children when authority commences (§ 765.204(3)).
- Powers. The surrogate may make all health care decisions during incapacity, consult providers and give informed consent, give written consent including a physician's order not to resuscitate, receive health information, apply for public benefits such as Medicare and Medicaid, authorize release of information, and authorize admission, discharge or transfer to a facility (§ 765.205(1), (2)).
- Standard of decision. The surrogate decides what he or she believes the principal would have decided. If there is no indication, the surrogate may consider the patient's best interest (§ 765.205(1)(b)).
- Guardian appointed later. The surrogate continues to make health care decisions unless the court modifies or revokes the authority under § 744.3115 (§ 765.205(3)).
What a surrogate cannot decide without express written authority
Unless the principal expressly delegates the authority in writing, or the surrogate has sought and received court approval under Fla. Prob. R. 5.900, a surrogate may not consent to the items in Table 2 (§ 765.113).
| Decision | Requirement |
|---|---|
| Abortion, sterilization, electroshock therapy, psychosurgery | Express written delegation or court approval |
| Experimental treatments not approved by a federally approved institutional review board (45 C.F.R. pt. 46 or 21 C.F.R. pt. 56) | Express written delegation or court approval |
| Voluntary admission to a mental health facility | Express written delegation or court approval |
| Withholding or withdrawing life-prolonging procedures from a pregnant patient before viability (as defined in § 390.0111(4)) | Express written delegation or court approval |
Source: § 765.113, Fla. Stat. (2026). A principal may designate a separate surrogate for mental health treatment if a court later finds the principal incompetent to consent to it and appoints a guardian advocate; unless the document says otherwise, the court assumes the health care surrogate is also the principal's choice for mental health decisions (§ 765.202(5)).
The living will
A competent adult may make a living will and direct the providing, withholding or withdrawal of life-prolonging procedures if the person has a terminal condition, an end-stage condition or is in a persistent vegetative state. The principal is responsible for notifying the primary physician. A person who learns of the living will when the principal is incapacitated may notify the physician or facility, which then makes it part of the medical record (§ 765.302(1), (2)). A living will creates a rebuttable presumption of clear and convincing evidence of the principal's wishes (§ 765.302(3)).
- Before a physician acts on it. The principal must have no reasonable medical probability of recovering capacity, must have one of the three conditions, and any limits the principal stated must be satisfied (§ 765.304(2)). The primary physician and at least one other consulting physician must separately examine the patient, and each must document the findings in the medical record (§ 765.306).
- Dispute. A primary physician may not withhold or withdraw life-prolonging procedures while a review under § 765.105 is pending. If no one seeks review within 7 days of the physician's decision, the physician may proceed (§ 765.304(1)).
- Suggested form. The statute provides a form with initial lines for the three conditions and an optional line naming a surrogate to carry out the declaration. The form "may, BUT NEED NOT," be used (§ 765.303). Failure to name a surrogate does not invalidate the living will (§ 765.303(2)).
- No living will, surrogate designated. The surrogate may decide to withhold or withdraw life-prolonging procedures unless the designation limits that authority. Before doing so the surrogate must be satisfied that the patient has no reasonable medical probability of recovering capacity and has an end-stage condition, is in a persistent vegetative state, or is terminal (§ 765.305).
| Condition | Statutory definition |
|---|---|
| Terminal condition | A condition caused by injury, disease or illness from which there is no reasonable medical probability of recovery and which, without treatment, can be expected to cause death. |
| End-stage condition | An irreversible condition caused by injury, disease or illness that has resulted in progressively severe and permanent deterioration, and for which treatment would be ineffective to a reasonable degree of medical probability. |
| Persistent vegetative state | A permanent and irreversible condition of unconsciousness with no voluntary action or cognitive behavior and an inability to communicate or interact purposefully with the environment. |
Source: § 765.101(4), (15), (22), Fla. Stat. (2026). "Life-prolonging procedure" includes artificially provided sustenance and hydration, and excludes medication or procedures needed for comfort care or to alleviate pain (§ 765.101(12)).
Who decides when there is no designation
When an incapacitated patient has no advance directive and no surrogate, or the surrogate is unavailable, a proxy decides. The first available person in each class below acts, in this order (§ 765.401(1)).
| Priority | Proxy |
|---|---|
| (a) | A judicially appointed guardian with authority to consent to medical treatment, or a guardian advocate |
| (b) | The patient's spouse |
| (c) | An adult child, or a majority of the adult children reasonably available for consultation |
| (d) | A parent |
| (e) | An adult sibling, or a majority of the adult siblings reasonably available |
| (f) | An adult relative who has shown special care and concern, kept regular contact and knows the patient's activities, health and beliefs |
| (g) | A close friend |
| (h) | A clinical social worker selected by the provider's bioethics committee |
A proxy's decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence of what the patient would have chosen, or of the patient's best interest if there is no indication (§ 765.401(3)). For a patient in a persistent vegetative state with no directive and no available family or friends, § 765.404 requires a guardian and an ethics committee review.
Revoking, amending and recognition across states
- Revoke or amend. A competent principal may amend or revoke an advance directive by a signed, dated writing; by physical cancellation or destruction; by an oral expression of intent; or by a later directive that is materially different. The change is effective when communicated to the surrogate, health care provider or facility (§ 765.104(1), (3)).
- Divorce. Dissolution or annulment of the principal's marriage revokes the designation of the former spouse as surrogate, unless the directive or the order says otherwise (§ 765.104(2)).
- Review of a surrogate's decision. The patient's family, the facility, the primary physician or another affected person may seek expedited judicial intervention under Fla. Prob. R. 5.900 if, for example, the decision is not in accord with the patient's known desires or the surrogate has abused his or her powers (§ 765.105(1)).
- Directives from another state. An advance directive executed in another state in compliance with that state's law or Florida law is validly executed for chapter 765 (§ 765.112).
- Health information. A designation may authorize the surrogate to receive health information, to make decisions, or both (§ 765.202(1)). Under HIPAA, a provider may disclose to a family member or friend the information directly relevant to that person's involvement in the patient's care. If the patient is not present or is incapacitated, the provider may do so in the exercise of professional judgment about the patient's best interests (45 C.F.R. § 164.510(b)).
Sources
Last checked: October 17, 2026. Statutes are cited to the 2026 Florida Statutes on the Florida Senate site; the text was read on the Florida Legislature's Online Sunshine site.
- Ch. 765, Fla. Stat. (2026). Health care advance directives: § 765.101, § 765.104, § 765.105, § 765.112, § 765.113, § 765.202, § 765.204, § 765.205, § 765.302, § 765.303, § 765.304, § 765.305, § 765.306, § 765.401, § 765.404, § 765.512.
- § 709.2201, Fla. Stat. (2026). Authority of agent under a power of attorney.
- § 401.45, Fla. Stat. (2026). Denial of emergency treatment; do not resuscitate order.
- Florida Department of Health, Do Not Resuscitate Order, accessed October 17, 2026.
- Fla. Prob. R. 5.900, Expedited Judicial Intervention Concerning Medical Treatment Procedures, Florida Probate Rules, October 15, 2026 edition, The Florida Bar.
- 45 C.F.R. § 164.502, § 164.508 and § 164.510, HIPAA Privacy Rule, eCFR.
- Florida Bar, Living Wills, Health Care Surrogates, and Advanced Directives and FloridaHealthFinder, Advance Directives, accessed October 17, 2026. Further reading only.
What people ask us about this.
Who can witness a Florida health care surrogate designation?
When does a health care surrogate's authority start?
Can a surrogate refuse life-prolonging treatment without a living will?
What happens if I have no health care surrogate?
Does Florida honor a living will signed in another state?
Is a DNR order the same as a living will?
Does the surrogate see my medical records?
How do I revoke a health care surrogate designation?
Do I file these documents with a court?
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