Adults who want a named health care surrogate and a written living will

Healthcare Surrogate + Living Will

How a Florida health care surrogate designation and living will are signed, when they take effect, and what the surrogate may decide, with each rule cited to ch. 765, Florida Statutes.

Chapter 765, Florida Statutes, covers health care advance directives. An advance directive is a witnessed written document or oral statement giving instructions about, or expressing desires about, any aspect of the principal's health care or health information, and it includes a designation of a health care surrogate, a living will and an anatomical gift (§ 765.101(1), Fla. Stat. (2026)). A health care surrogate is a competent adult expressly designated by a principal to make health care decisions and receive health information (§ 765.101(21)). A living will is a witnessed written document, signed under § 765.302, or a witnessed oral statement of the principal's instructions about life-prolonging procedures (§ 765.101(13)).

Signing a surrogate designation. The principal signs in the presence of two subscribing adult witnesses. A principal who cannot sign may direct another person to sign the principal's name in the presence of the witnesses, and an exact copy goes to the surrogate (§ 765.202(1)). The surrogate cannot be a witness, and at least one witness must be neither the principal's spouse nor a blood relative (§ 765.202(2)). The designation may name an alternate surrogate if the designation is explicit (§ 765.202(3)). Neither § 765.202 nor § 765.302 requires a notary. A signed designation creates a rebuttable presumption of clear and convincing evidence of the principal's designation (§ 765.202(8)).

Signing a living will. Any 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, has an end-stage condition or is in a persistent vegetative state (§ 765.302(1)). The principal signs in the presence of two subscribing witnesses, one of whom is neither a spouse nor a blood relative. If the principal cannot sign, one of the witnesses subscribes the principal's signature in the principal's presence and at the principal's direction (§ 765.302(1)). A living will creates a rebuttable presumption of clear and convincing evidence of the principal's wishes (§ 765.302(3)). Naming a surrogate in a living will is optional, and failing to name one does not invalidate it (§ 765.303(2)).

When a surrogate acts. A principal is presumed capable of making health care decisions, and while the principal has capacity the principal's wishes control (§ 765.204(1)). If capacity is in question, the primary or attending physician evaluates it, and a second physician evaluates it if the first has a question (§ 765.204(2)). The surrogate's authority starts on a determination that the principal lacks capacity, or on the date the principal stipulates that authority is exercisable immediately (§ 765.204(3), § 765.202(6)). A principal who has capacity takes precedence over a surrogate's decision in material conflict (§ 765.204(3)). The surrogate must make only the decisions the surrogate believes the principal would have made, and may consider the principal's best interest only if there is no indication of what the principal would have chosen (§ 765.205(1)(b)).

What a surrogate may decide. "Health care decision" includes informed consent, refusal of consent or withdrawal of consent to any health care, including life-prolonging procedures and mental health treatment; applying for benefits to defray health care costs; access to health information; and the decision to make an anatomical gift (§ 765.101(6)). A surrogate or proxy may not consent to abortion, sterilization, electroshock therapy, psychosurgery, certain experimental treatments or voluntary admission to a mental health facility unless the principal expressly delegates that authority in writing, or a court approves under Fla. Prob. R. 5.900 (§ 765.113(1)). A surrogate or proxy also may not withdraw life-prolonging procedures from a pregnant patient before viability without that delegation or court approval (§ 765.113(2)).

Health information. The health care surrogate designation can authorize the surrogate to receive health information effective immediately or only on incapacity (§ 765.202(6), § 765.203). Under the federal privacy rule, if a person has authority under applicable law to make health care decisions for an adult, a covered entity must treat that person as the individual's personal representative for the protected health information relevant to the representation (45 C.F.R. § 164.502(g)(2)).

The fit

Who qualifies

A competent adult. Chapter 765 defines the principal as a competent adult executing an advance directive (§ 765.101(18), Fla. Stat. (2026)), and "any competent adult" may make a living will (§ 765.302(1)). Section 743.07(1) removes the disability of nonage for all persons 18 or older, who then hold the rights, privileges and obligations of persons 21 or older, except as the State Constitution as it stood before that section's effective date and the Beverage Law otherwise provide.
A person whose surrogate is unavailable. The designation may name an alternate who acts if the original surrogate is not willing, able or reasonably available (§ 765.202(3), Fla. Stat. (2026)). If neither is available, the health care facility may seek appointment of a proxy under part IV (§ 765.202(4)).
A person without any directive. If an incapacitated patient has no advance directive and no available surrogate, health care decisions may be made by the first available person in this order: a court-appointed guardian, the spouse, an adult child or a majority of adult children, a parent, an adult sibling or majority of siblings, an adult relative with special care and concern, a close friend, then a licensed clinical social worker selected by the provider's bioethics committee (§ 765.401(1)(a)-(h), Fla. Stat. (2026)).
A person with a directive from another state. An advance directive executed in another state in compliance with that state's law or Florida's law is validly executed for purposes of chapter 765 (§ 765.112, Fla. Stat. (2026)).
A married person. Unless the directive or an order of dissolution or annulment provides otherwise, dissolution or annulment of the principal's marriage revokes the designation of the former spouse as surrogate (§ 765.104(2), Fla. Stat. (2026)).

The work

What the documents cover

Name, address and phone of the surrogate and of an explicit alternate surrogate (§ 765.202(3), § 765.203)
Initialed authority to receive health information (§ 765.203)
Initialed authority to make all health care decisions, including consent or refusal for life-prolonging procedures, applying for benefits, access to health information and anatomical gifts (§ 765.101(6), § 765.203)
Specific instructions and restrictions, and any express delegation for the actions listed in § 765.113
Boxes stating whether authority to receive health information, to make decisions, or both takes effect immediately (§ 765.202(6), § 765.203)
Living will with the conditions initialed: terminal condition, end-stage condition or persistent vegetative state, and optional additional instructions (§ 765.302(1), § 765.303)
Two subscribing witnesses, one neither spouse nor blood relative, with the surrogate not acting as a witness (§ 765.202(1)-(2), § 765.302(1))

The process

How it works, step by step

01
Choose a surrogate and an alternate
The surrogate is a competent adult expressly designated by the principal (§ 765.101(21)). The designation may name an alternate if it is explicit, and failing to name one does not invalidate the designation (§ 765.202(3)). If the surrogate and alternate are both unavailable, the health care facility may seek a proxy under part IV (§ 765.202(4)).
02
Decide when the surrogate's authority starts
The principal may stipulate that the authority to receive health information, to make health care decisions, or both, is exercisable immediately without a determination of incapacity (§ 765.202(6)). Without that stipulation the authority starts on a determination of incapacity under § 765.204(2) (§ 765.204(3)).
03
State living will conditions and instructions
A living will applies if the principal has a terminal condition, an end-stage condition or is in a persistent vegetative state (§ 765.302(1)). Before life-prolonging procedures may be withheld or withdrawn, the primary physician and at least one consulting physician must separately examine the patient, and each signs the documented findings in the medical record (§ 765.306). The suggested forms are in § 765.203 and § 765.303, and a form need not follow them (§ 765.203, § 765.303(1)).
04
Sign before two witnesses
The principal signs each document in the presence of two subscribing witnesses, and at least one witness is neither the principal's spouse nor a blood relative (§ 765.202(1)-(2), § 765.302(1)). The surrogate may not be a witness (§ 765.202(2)).
05
Provide copies and notify the physician
An exact copy of the designation goes to the surrogate (§ 765.202(1)). The principal is responsible for notifying the primary physician that a living will exists, and a physician or facility that is notified promptly makes the living will part of the medical record (§ 765.302(2)). If the principal is incapacitated on admission, any other person may notify the physician or facility (§ 765.302(2)).

The pitfalls

Common problems

Easy on people, tough on problems. These are the issues to plan for.

The surrogate signs as a witness. The person designated as surrogate may not act as a witness to the designation (§ 765.202(2), Fla. Stat. (2026)).
Every witness is a spouse or blood relative. At least one witness to a designation or living will must be neither the principal's spouse nor a blood relative (§ 765.202(2), § 765.302(1), Fla. Stat. (2026)).
No alternate surrogate. The designation of a surrogate is valid without an alternate (§ 765.202(3), Fla. Stat. (2026)). If the surrogate cannot act, the facility may seek a proxy, who is chosen in the statutory order (§ 765.202(4), § 765.401(1)).
Leaving the start date unstated. Without a stipulation, the surrogate's authority starts only after a physician determines the principal lacks capacity (§ 765.204(2)-(3), Fla. Stat. (2026)).
Assuming a surrogate can decide everything. A surrogate may not consent to the actions listed in § 765.113 unless the principal expressly delegates that authority in writing or a court approves (§ 765.113, Fla. Stat. (2026)).
Keeping the former spouse as surrogate after divorce. Dissolution or annulment revokes the former spouse's designation unless the directive or the order provides otherwise (§ 765.104(2), Fla. Stat. (2026)).
Not telling the physician. The principal is responsible for notifying the primary physician that a living will exists (§ 765.302(2), Fla. Stat. (2026)).
A dispute over the surrogate's decision. The patient's family, the facility, the primary physician or another interested person may seek expedited judicial intervention under Fla. Prob. R. 5.900 on the grounds in § 765.105(1), such as a decision not in accord with the patient's known desires or abuse of the surrogate's powers (§ 765.105(1), Fla. Stat. (2026)).

The FAQ

Frequently asked questions

Why are there two documents?+−

They do different things. A surrogate designation names who makes health care decisions and receives health information (§ 765.202(1), § 765.101(21), Fla. Stat. (2026)). A living will states the principal's instructions about life-prolonging procedures if the principal has a terminal condition, an end-stage condition or is in a persistent vegetative state (§ 765.302(1)). A living will may also name a surrogate to carry it out (§ 765.303(1)).

Does my spouse make my medical decisions automatically?+−

Only when there is no directive and no available surrogate. In that case the order is guardian, spouse, adult child or a majority of adult children, parent, adult sibling or a majority of siblings, an adult relative with special care and concern, close friend, then a licensed clinical social worker chosen by the provider's bioethics committee (§ 765.401(1), Fla. Stat. (2026)). The spouse comes second, after a court-appointed guardian. A designated surrogate comes before every person in that list (§ 765.401(1)).

What is the difference between a living will and a DNR order?+−

A living will is the principal's own signed instruction about life-prolonging procedures (§ 765.302(1), Fla. Stat. (2026)). An order not to resuscitate, for emergency medical technicians and paramedics, is valid only on the form adopted by the Department of Health rule, signed by the patient's physician or physician assistant and by the patient or, if incapacitated, the surrogate, proxy, guardian or agent with delegated health care authority (§ 401.45(3)(a)). A surrogate provides written consent, including a physician's order not to resuscitate, on an appropriate form (§ 765.205(1)(c)).

Does a surrogate designation have to be notarized?+−

No. A designation is signed by the principal in the presence of two subscribing adult witnesses (§ 765.202(1), Fla. Stat. (2026)), and a living will is signed in the presence of two subscribing witnesses (§ 765.302(1)). Neither section calls for a notary.

Who can be a witness?+−

Any two subscribing adult witnesses for a designation and two subscribing witnesses for a living will, with two limits. At least one witness must be neither the principal's spouse nor a blood relative (§ 765.202(2), § 765.302(1), Fla. Stat. (2026)). The person designated as surrogate cannot be a witness to the designation (§ 765.202(2)).

When does the surrogate's authority begin?+−

It begins on a physician's determination that the principal lacks capacity, unless the principal stipulated immediate authority (§ 765.204(3), § 765.202(6), Fla. Stat. (2026)). "Incapacity" means the patient is physically or mentally unable to communicate a willful and knowing health care decision (§ 765.101(10)). If the authority began because of incapacity and the physician determines the principal has regained capacity, the authority ceases and recommences if capacity is lost again (§ 765.204(3)). A surrogate who is not the principal's spouse must notify the spouse or adult children of the designation when authority starts (§ 765.204(3)).

What can a surrogate not decide without extra authority?+−

Abortion, sterilization, electroshock therapy, psychosurgery, experimental treatments not approved by a federally approved institutional review board, and voluntary admission to a mental health facility (§ 765.113(1), Fla. Stat. (2026)). The surrogate also may not withdraw life-prolonging procedures from a pregnant patient before viability (§ 765.113(2)). These require the principal's express written delegation or court approval under Fla. Prob. R. 5.900 (§ 765.113).

Can I be specific about end-of-life care?+−

Yes. The suggested surrogate form has a place for specific instructions and restrictions (§ 765.203, Fla. Stat. (2026)), and the suggested living will form has a place for additional instructions (§ 765.303(1)). The surrogate acts in accordance with the principal's instructions unless the principal expressly limited the surrogate's authority (§ 765.205(1)). Life-prolonging procedures include artificially provided sustenance and hydration, but not medication or procedures needed for comfort care or to relieve pain (§ 765.101(12)).

How do I change or revoke these documents?+−

A competent principal may amend or revoke an advance directive at any time by a signed, dated writing; by physically cancelling or destroying it, or having another do so in the principal's presence and at the principal's direction; by an oral expression of intent; or by a later advance directive that is materially different (§ 765.104(1), Fla. Stat. (2026)). The change is effective when communicated to the surrogate, a health care provider or a health care facility (§ 765.104(3)). Unless the designation states a time of termination, it remains in effect until revoked (§ 765.202(7)).

Can the surrogate see my medical records?+−

Yes, to the extent the designation grants it. The surrogate is provided access to the appropriate health information of the principal (§ 765.205(1)(d), Fla. Stat. (2026)), and the principal may stipulate that this authority is immediate (§ 765.202(6)). A person with authority under applicable law to make health care decisions for an adult is treated by a covered entity as the personal representative for the relevant protected health information (45 C.F.R. § 164.502(g)(2)).

Does a Florida hospital accept an out-of-state directive?+−

Chapter 765 treats an advance directive executed in another state in compliance with that state's law or Florida's law as validly executed (§ 765.112, Fla. Stat. (2026)). Chapter 765 states no timing rule for how a facility acts on it.

What happens if a court appoints a guardian after I name a surrogate?+−

The surrogate continues to make health care decisions unless the court modifies or revokes the surrogate's authority under § 744.3115 (§ 765.205(3), Fla. Stat. (2026)). In each guardianship proceeding the court determines whether the ward signed a valid advance directive and specifies what authority the guardian and the surrogate each hold over health care decisions (§ 744.3115(2)).

Does a financial power of attorney cover medical decisions?+−

Only if a durable power of attorney specifically grants health care authority (§ 709.2201(2)(c), Fla. Stat. (2026)). If a health care surrogate designation and a power of attorney conflict, the designation controls unless the power of attorney is later and expressly says otherwise (§ 709.2109(3)(b)).

In short

A health care surrogate designation and a living will are each signed before two subscribing witnesses, one of them neither a spouse nor a blood relative, and neither requires a notary (§ 765.202(1)-(2), § 765.302(1)). Without a designated surrogate, § 765.401(1) sets the order of who decides.

Last checked: October 19, 2026

Sources

Each source below was read on the date shown. Statute links open the 2026 edition on the Florida Senate site. The Florida Probate Rules edition is the one the Florida Bar posted on October 15, 2026.

§ 765.101, Fla. Stat. (2026), Definitions. The Florida Senate.
§ 765.104, Fla. Stat. (2026), Amendment or revocation. The Florida Senate.
§ 765.105, Fla. Stat. (2026), Review of surrogate or proxy's decision. The Florida Senate.
§ 765.112, Fla. Stat. (2026), Recognition of advance directive executed in another state. The Florida Senate.
§ 765.113, Fla. Stat. (2026), Restrictions on providing consent. The Florida Senate.
§ 765.202, Fla. Stat. (2026), Designation of a health care surrogate. The Florida Senate. Plain-English page on this site.
§ 765.203, Fla. Stat. (2026), Suggested form of designation. The Florida Senate.
§ 765.204, Fla. Stat. (2026), Capacity of principal; procedure. The Florida Senate.
§ 765.205, Fla. Stat. (2026), Responsibility of the surrogate. The Florida Senate. Plain-English page on this site.
§ 765.302, Fla. Stat. (2026), Procedure for making a living will; notice to physician. The Florida Senate. Plain-English page on this site.
§ 765.303, Fla. Stat. (2026), Suggested form of a living will. The Florida Senate.
§ 765.306, Fla. Stat. (2026), Determination of patient condition. The Florida Senate.
§ 765.401, Fla. Stat. (2026), The proxy. The Florida Senate. Plain-English page on this site.
§ 401.45, Fla. Stat. (2026), Denial of emergency treatment; civil liability. The Florida Senate.
§ 743.07, Fla. Stat. (2026), Rights, privileges, and obligations of persons 18 years of age or older. The Florida Senate.
§ 744.3115, Fla. Stat. (2026), Advance directives for health care. The Florida Senate.
§ 709.2109, Fla. Stat. (2026), Termination or suspension of power of attorney or agent's authority. The Florida Senate.
§ 709.2201, Fla. Stat. (2026), Authority of agent. The Florida Senate. Plain-English page on this site.
45 C.F.R. § 164.502(g), Uses and disclosures of protected health information: general rules, personal representatives. Electronic Code of Federal Regulations. A covered entity treats a person with authority to make health care decisions for an adult as the personal representative for relevant protected health information

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