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Title
XLIV |
Chapter
765 |
765.401 The
proxy.--
1) If an
incapacitated or developmentally disabled patient has not executed an advance
directive, or designated a surrogate to execute an advance directive, or the designated or
alternate surrogate is no longer available to make health care decisions,
health care decisions may be made for the patient by any of the following
individuals, in the following order of priority, if no individual in a prior
class is reasonably available, willing, or competent to act:
(a) The
judicially appointed guardian of the patient or the guardian advocate of the
person having a developmental disability as defined in s. 393.063, who has been authorized
to consent to medical treatment, if such guardian has previously been
appointed; however, this paragraph shall not be construed to require such
appointment before a treatment decision can be made under this subsection;
(b) The
patient's spouse;
(c) An adult
child of the patient, or if the patient has more than one adult child, a
majority of the adult children who are reasonably available for consultation;
(d) A parent
of the patient;
(e) The adult
sibling of the patient or, if the patient has more than one sibling, a majority
of the adult siblings who are reasonably available for consultation;
(f) An adult
relative of the patient who has exhibited special care and concern for the
patient and who has maintained regular contact with the patient and who is
familiar with the patient's activities, health, and religious or moral beliefs;
or
(g) A close
friend of the patient.
(h) A clinical
social worker licensed pursuant to chapter 491, or who is a graduate of a
court-approved guardianship program. Such a proxy must be selected by the
provider's bioethics committee and must not be employed by the provider. If the
provider does not have a bioethics committee, then such a proxy may be chosen
through an arrangement with the bioethics committee of another provider. The
proxy will be notified that, upon request, the provider shall make available a
second physician, not involved in the patient's care to assist the proxy in
evaluating treatment. Decisions to withhold or withdraw life-prolonging
procedures will be reviewed by the facility's bioethics committee.
Documentation of efforts to locate proxies from prior classes must be recorded
in the patient record.
(2) Any health
care decision made under this part must be based on the proxy's informed
consent and on the decision the proxy reasonably believes the patient would
have made under the circumstances. If there is no indication of what the
patient would have chosen, the proxy may consider the patient's best interest
in deciding that proposed treatments are to be withheld or that treatments
currently in effect are to be withdrawn.
(3) Before
exercising the incapacitated patient's rights to select or decline health care,
the proxy must comply with the provisions of ss. 765.205 and 765.305, except that a proxy's
decision to withhold or withdraw life-prolonging procedures must be supported
by clear and convincing evidence that the decision would have been the one the
patient would have chosen had the patient been competent or, if there is no
indication of what the patient would have chosen, that the decision is in the
patient's best interest.
(4) Nothing in this section shall be construed to preempt the
designation of persons who may consent to the medical care or treatment of
minors established pursuant to s. 743.0645.
History.--s. 5, ch.
92-199; s. 12, ch. 94-183; s. 32, ch.
99-331; s. 15, ch. 2000-295; s. 7, ch. 2001-250; s. 136, ch. 2001-277;
s. 13, ch. 2002-195; s. 5, ch.
2003-57.