Florida Statute 765.401 | Lawyer Caselaw & Research

The 2024 Florida Statutes

Title XLIV
CIVIL RIGHTS

Chapter 765
HEALTH CARE ADVANCE DIRECTIVES

View Entire Chapter

F.S. 765.401

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.

F.S. 765.401 on Google Scholar

F.S. 765.401 on Casetext

Amendments to 765.401

Arrestable Offenses / Crimes under Fla. Stat. 765.401

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 765.401.

Annotations, Discussions, Cases:

Cases Citing Statute 765.401

Total Results: 17

In Re: Amendments to Florida Probate Rules - 2024 Legislation

Court: Supreme Court of Florida | Date Filed: 2024-09-05

Snippet: a living will; notice to physician. § 765.401, Fla. Stat. The proxy. Rule References

In Re: Amendments to Florida Probate Rules - 2023 Legislation

Court: Supreme Court of Florida | Date Filed: 2023-12-14

Snippet: documents that are consistent with sections 765.305, 765.401(3), or 765.404, Florida Statutes. (b) Notice

PALM GARDEN OF AVENTURA, LLC, etc. v. SCHKETHA ELLISON, etc.

Court: District Court of Appeal of Florida | Date Filed: 2022-03-02

Snippet: is authorized to act for the principal.”); § 765.401, Fla. Stat. (2020) (explaining that “health care

In Re: Amendments to the Florida Probate Rules - Guardianship

Court: Supreme Court of Florida | Date Filed: 2020-09-03

Snippet: making a living will; notice to physician. § 765.401, Fla. Stat. The proxy. Rule References

In Re: Amendments to the Florida Probate Rules - 2019 Regular-Cycle Report

Court: Supreme Court of Florida | Date Filed: 2019-12-19

Snippet: making a living will; notice to physician. § 765.401, Fla. Stat. The proxy. Rule References

In Re: Amendments to the Florida Probate Rules - 2019 Regular-Cycle Report

Court: Supreme Court of Florida | Date Filed: 2019-11-14

Snippet: making a living will; notice to physician. § 765.401, Fla. Stat. The proxy. Rule References

2D16-2122 / St. Joseph's Hospital, Inc. v. Doe

Court: District Court of Appeal of Florida | Date Filed: 2017-01-13

Citation: 208 So. 3d 1200, 2017 Fla. App. LEXIS 304

Snippet: patient or an individual identified pursuant to s. 765.401(1) that the patient was the subject of an adverse

Angeli v. Kluka

Court: District Court of Appeal of Florida | Date Filed: 2016-05-25

Citation: 190 So. 3d 700, 2016 WL 3001813, 2016 Fla. App. LEXIS 7900

Snippet: a parent — singular— to make such decisions. § 765.401(l)(d), Fla. Stat. (providing a list of individuals

In Re Amend. to Florida Probate Rules

Court: Supreme Court of Florida | Date Filed: 2008-07-10

Citation: 986 So. 2d 576, 33 Fla. L. Weekly Supp. 542, 2008 Fla. LEXIS 1242, 2008 WL 2686339

Snippet: for making a living will; notice to physician. § 765.401, Fla. Stat. The proxy. Rule References Fla. Prob

Blankfeld v. Richmond Health Care, Inc.

Court: District Court of Appeal of Florida | Date Filed: 2005-05-25

Citation: 902 So. 2d 296, 2005 WL 1226070

Snippet: at best, as a health care proxy under section 765.401, Florida Statutes (2001). Riva had been *300 previously

In Re Guardianship of Schiavo

Court: District Court of Appeal of Florida | Date Filed: 2005-03-16

Citation: 916 So. 2d 814, 2005 WL 600377

Snippet: 2d 258, 273-74 (Fla. 2d DCA 1989)); see also § 765.401(3), Fla. Stat. (2000). It is the trial judge's

Bush v. Schiavo

Court: Supreme Court of Florida | Date Filed: 2004-09-23

Citation: 885 So. 2d 321, 2004 WL 2109983

Snippet: Specifically, the Act does not amend section 765.401(1), Florida Statutes (2003), which sets forth an

In Re Guardianship of Schiavo

Court: District Court of Appeal of Florida | Date Filed: 2003-06-06

Citation: 851 So. 2d 182, 2003 WL 21295656

Snippet: 2d 258, 273-74 (Fla. 2d DCA 1989)); see also § 765.401(3), Fla. Stat. (2000). It is the trial judge's

In Re Guardianship of Schiavo

Court: District Court of Appeal of Florida | Date Filed: 2001-10-17

Citation: 800 So. 2d 640, 2001 WL 1230544

Snippet: § 765.305(2)(a), Fla. Stat. (2000). [3] See § 765.401, Fla. Stat. (2000). [4] The Schindlers did not

In Re Guardianship of Schiavo

Court: District Court of Appeal of Florida | Date Filed: 2001-07-11

Citation: 792 So. 2d 551, 2001 WL 770772

Snippet: to withdraw life-prolonging procedures. See § 765.401(3), Fla. Stat. (2000); In re Guardianship of Browning

In Re Guardianship of Schiavo

Court: District Court of Appeal of Florida | Date Filed: 2001-01-24

Citation: 780 So. 2d 176, 2001 WL 55481

Snippet: thereby likely to inherit from the patient. See § 765.401, Fla.Stat. (2000). Thus, the fact that a surrogate

Lowe v. Broward County

Court: District Court of Appeal of Florida | Date Filed: 2000-09-20

Citation: 766 So. 2d 1199, 2000 Fla. App. LEXIS 11893, 2000 WL 1345513

Snippet: DPA conflicts with section 765.401, Florida Statutes (1999). Section 765.401 sets forth an order of priority