When your autistic child turns 18, the doctor's office may stop talking to you. Your young adult is now the patient who decides, and providers need written permission before sharing information or accepting your input. Two Florida documents are common: a health care surrogate designation and a durable power of attorney. They overlap but are not the same. This guide compares them, explains how each is signed, and covers what happens if nothing is signed. Your young adult must understand and choose to sign either document, and a Florida attorney can help you choose and prepare them.
Why do we need documents at 18?
At 18, "the disability of nonage" is removed (s. 743.07). Under the HIPAA Privacy Rule, a provider treats a person as an adult's personal representative only if, "under applicable law," that person "has authority to act on behalf of an individual who is an adult ... in making decisions related to health care" (45 CFR 164.502(g)(2)). Without a document or court order, a parent generally has no automatic authority. Florida law also protects your young adult's own voice: a principal "is presumed to be capable of making health care decisions," and while the principal has capacity, "the principal's wishes are controlling" (s. 765.204(1)).
What is a health care surrogate designation?
It is a written document, under chapter 765, that names a surrogate "to make health care decisions for a principal or receive health information on behalf of a principal, or both" (s. 765.202(1)). Key rules:
- Signing: signed by the principal "in the presence of two subscribing adult witnesses." If the principal cannot sign, they may direct another person to sign their name in the witnesses' presence.
- Witness limits: the surrogate "shall not act as witness," and "at least one person who acts as a witness shall be neither the principal's spouse nor blood relative" (s. 765.202(2)). So if a parent is the surrogate and the other parent witnesses, the second witness must be unrelated.
- Copy: "an exact copy of the instrument shall be provided to the surrogate."
- Alternate: an alternate surrogate may be named, if the designation is explicit.
- Timing: the document may say the surrogate's authority "is exercisable immediately without the necessity for a determination of incapacity" (s. 765.202(6)). Otherwise it starts when a physician determines the principal lacks capacity (s. 765.204).
- Duration: unless it states an end date, it "shall remain in effect until revoked by the principal" (s. 765.202(7)).
Section 765.203 provides a suggested form, with separate lines to initial for authority to "receive any of my health information" and to "make all health care decisions." A surrogate must make "only health care decisions for the principal which he or she believes the principal would have made under the circumstances if the principal were capable" (s. 765.205(1)(b)).
What is a durable power of attorney?
A power of attorney appoints an agent to act for the principal. Under chapter 709:
- Agent: must be a natural person 18 or older, or a qualifying financial institution with trust powers (s. 709.2105(1)).
- Signing: "must be signed by the principal and by two subscribing witnesses and be acknowledged by the principal before a notary public" (s. 709.2105(2)).
- Durability: it is durable, meaning it survives incapacity, only if it contains the words "This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes," or similar words showing that intent (s. 709.2104).
- Specific grants only: an agent "may only exercise authority specifically granted." General clauses "such as provisions purporting to give the agent authority to do all acts that the principal can do, are not express grants of specific authority and do not grant any authority to the agent" (s. 709.2201(1)).
- Health care: an agent may make health care decisions only "if such authority is specifically granted in a durable power of attorney" (s. 709.2201(2)(c)).
- Effective date: a power of attorney "is exercisable when executed." One written to take effect on a future event, such as incapacity, is generally "ineffective" (s. 709.2108), with narrow exceptions.
A durable power of attorney is usually where families handle money matters: banking, bills, taxes and dealing with agencies. Health care powers can be included, but many families use a separate surrogate designation for health care.
How do they compare?
| Health care surrogate (ch. 765) | Durable power of attorney (ch. 709) | |
|---|---|---|
| Main purpose | Health care decisions and health information | Financial and legal matters; health care only if specifically granted |
| Signing | Two adult witnesses; one not a spouse or blood relative; the surrogate cannot witness | Two subscribing witnesses and a notary acknowledgment |
| When it starts | On incapacity, or immediately if the document says so | When signed; "springing" powers are generally ineffective |
| Survives incapacity? | Yes, that is its purpose | Only if it includes durability language |
| Scope | Health care decisions, health information, release of records, admission and discharge | Only the powers specifically listed |
| Ending it | Revoked by the principal, or an end date | Revoked by a later signed writing (s. 709.2110) |
| Typical use for a young adult | A parent or trusted adult helps with medical care and therapy decisions | A parent or trusted adult helps with money, benefits paperwork and contracts |
Many families use both, plus a supported decision-making agreement that lets a trusted person receive school and medical information and help the young adult communicate without deciding for them. See supported decision-making vs guardianship.
What happens if nothing is signed?
Florida's health care proxy statute applies to an "incapacitated or developmentally disabled patient" who has not signed an advance directive or designated a surrogate, or whose surrogate is unavailable. Section 765.401(1) lists who may decide, in order of priority, if no one in a prior class is "reasonably available, willing, or competent to act":
- a judicially appointed guardian, or a guardian advocate of a person with a developmental disability "who has been authorized to consent to medical treatment";
- the patient's spouse;
- an adult child, or a majority of available adult children;
- a parent of the patient;
- an adult sibling, or a majority of available adult siblings;
- an adult relative who has shown special care and concern;
- a close friend;
- a licensed clinical social worker or graduate of a court-approved guardianship program, selected by the provider's bioethics committee.
For most unmarried young adults without children, a parent would be first in line. But the proxy route depends on the provider applying the statute in a particular situation, and a proxy must decide based on "the decision the proxy reasonably believes the patient would have made" (s. 765.401(2)). A signed designation chosen by your young adult is clearer, avoids disputes between relatives, and can cover sharing information before any crisis.
How do these documents relate to guardian advocacy?
They can make court unnecessary. In every guardian advocate case, the court must determine whether the person has a valid advance directive or durable power of attorney, and "a guardian advocate may not be appointed if the court finds that the advance directive or durable power of attorney provides an alternative to the appointment of a guardian advocate which will sufficiently address the needs" of the person (s. 393.12(7)(a)). A health care surrogate and an agent under a durable power of attorney must also receive notice of a guardian advocate petition (s. 393.12(4)(a)). If a guardian is appointed later, a surrogate generally continues to make health care decisions unless the court modifies or revokes that authority (s. 765.205(3)). See guardian advocates in Florida.
A checklist before signing
- Does your young adult understand and want it? Explain each document in plain language, with visuals if helpful, and give time. The choice is theirs. An attorney can help judge whether they understand what they are signing.
- Who will serve? Name a surrogate or agent and an alternate.
- Immediate or on incapacity? For a surrogate, decide whether authority should start right away (useful for appointments and records) or only on incapacity.
- Which powers? For a power of attorney, list each power specifically. General "do anything" language grants nothing in Florida.
- Get the signing right. Check witness rules for the surrogate form, and witnesses plus notary for the power of attorney.
- Share copies with the surrogate, doctors, therapists and pharmacies, and keep the originals safe.
- Review every few years or when circumstances change.
Start this planning in the year before 18. See turning 18 in Florida and the year-before-18 checklist.
How Hope Center fits in
Hope Center provides ABA, parent training and mental health therapy, and our approach is assent-based, so we look for each person's own willingness to take part. Our staff can join doctor visits, dental visits and IEP meetings where allowed, which can help a teen practice self-advocacy in real settings. To ask about services for your teen, contact us or call 561-337-8865.
This page explains Florida law in general terms. For documents for your young adult, talk with a Florida attorney.