Florida Statutes
Fla. Stat. § 765.401 (2025)
The proxy.
✓ 2025 Florida Statutes — current through the 2025 Regular Session
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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.
Notes of Decisions
Cited in 20
cases (2 in the last 5 years), 2000–2024 · leading case: Blankfeld v. Richmond Health Care, Inc., 902 So. 2d 296 (Fla. 4th DCA 2005).
Blankfeld v. Richmond Health Care, Inc., 902 So. 2d 296 (Fla. 4th DCA 2005). “His authority to sign the contract was, at best, as a health care proxy under section 765.401, Florida Statutes (2001).”
Bush v. Schiavo, 885 So. 2d 321 (Fla. 2004). “; § 765.401 Fla. Stat. (2003). "Health care decisions" include "[i]nformed consent, refusal of consent, or withdrawal of consent to any and all health care, including life-prolonging procedures.”
Lowe v. Broward Cnty., 766 So. 2d 1199 (Fla. 4th DCA 2000). “Lowe next argues that section 16½-158(c) of the DPA conflicts with section 765.401, Florida Statutes (1999).”
In Re Guardianship of Schiavo, 792 So. 2d 551 (Fla. 2d DCA 2001). “See § 765.401(1), Fla. Stat. (1997). [4] We have considered whether a limited exception to the one-year limitation should apply in a guardianship context.”
Theresa Marie Schindler Schiavo v. Michael Schiavo, 403 F.3d 1223 (11th Cir. 2005). “See Fla. Stat. § 765.401 (1). W here a n3 Plaintiffs have submitted affidavits of health decision by the proxy is challenged by the patient's other care professionals regarding Theresa's medical family members, it is appropriate for the parties to seek status, treatment…”
In Re Guardianship of Schiavo, 916 So. 2d 814 (Fla. 2d DCA 2005). “2d DCA 1989)); see also § 765.401(3), Fla. Stat. (2000). It is the trial judge's duty not to make the decision that the judge would make for himself or herself or for a loved one.”
In Re Guardianship of Schiavo, 780 So. 2d 176 (Fla. 2d DCA 2001). “See § 765.401, Fla.Stat. (2000). Thus, the fact that a surrogate decision-maker may ultimately inherit from the patient should not automatically compel the appointment of a guardian.”
In Re Guardianship of Schiavo, 851 So. 2d 182 (Fla. 2d DCA 2003). “2d DCA 1989)); see also § 765.401(3), Fla. Stat. (2000). It is the trial judge's duty not to make the decision that the judge would make for himself or herself or for a loved one.”
Schiavo Ex Rel. Schindler v. Schiavo, 358 F. Supp. 2d 1161 (M.D. Fla. 2005). “§ 765.401 (3). 5 To the extent Plaintiffs complain that the quantum of evidence did not rise to the level of clear and convincing, these claimed evidentiary errors are a matter of state law, not federal constitutional law.”
In Re Guardianship of Schiavo, 800 So. 2d 640 (Fla. 2d DCA 2001). “We are confident they can rise to the occasion and demonstrate the professionalism necessary to resolve this matter in the trial court without undue delay and with the care and dignity that we all owe to Mrs.”
Lujan v. Life Care Centers of Am., 222 P.3d 970 (Colo. Ct. App. 2009). “The Blankfeld court began its analysis by noting that the son's authority was, at best, as a health care proxy under Fla. Stat. § 765.401 (2001). Blankfeld, 902 So.”
Schiavo Ex Rel. Schindler v. Schiavo, 357 F. Supp. 2d 1378 (M.D. Fla. 2005). “§ 765.401 (1). Where a decision by the proxy is challenged by the patient’s other family members, it is appropriate for the parties to seek “expedited judicial intervention.”
— 765.401(1) — 3 cases
Bush v. Schiavo, 885 So. 2d 321 (Fla. 2004). “; § 765.401 Fla. Stat. (2003). "Health care decisions" include "[i]nformed consent, refusal of consent, or withdrawal of consent to any and all health care, including life-prolonging procedures.”
In Re Guardianship of Schiavo, 792 So. 2d 551 (Fla. 2d DCA 2001). “See § 765.401(1), Fla. Stat. (1997). [4] We have considered whether a limited exception to the one-year limitation should apply in a guardianship context.”
Blankfeld v. Richmond Health Care, Inc., 902 So. 2d 296 (Fla. 4th DCA 2005). “His authority to sign the contract was, at best, as a health care proxy under section 765.401, Florida Statutes (2001).”
— 765.401(2) — 2 cases
Blankfeld v. Richmond Health Care, Inc., 902 So. 2d 296 (Fla. 4th DCA 2005). “His authority to sign the contract was, at best, as a health care proxy under section 765.401, Florida Statutes (2001).”
Bush v. Schiavo, 885 So. 2d 321 (Fla. 2004). “; § 765.401 Fla. Stat. (2003). "Health care decisions" include "[i]nformed consent, refusal of consent, or withdrawal of consent to any and all health care, including life-prolonging procedures.”
— 765.401(3) — 4 cases
In Re Guardianship of Schiavo, 916 So. 2d 814 (Fla. 2d DCA 2005). “2d DCA 1989)); see also § 765.401(3), Fla. Stat. (2000). It is the trial judge's duty not to make the decision that the judge would make for himself or herself or for a loved one.”
Bush v. Schiavo, 885 So. 2d 321 (Fla. 2004). “; § 765.401 Fla. Stat. (2003). "Health care decisions" include "[i]nformed consent, refusal of consent, or withdrawal of consent to any and all health care, including life-prolonging procedures.”
In Re Guardianship of Schiavo, 792 So. 2d 551 (Fla. 2d DCA 2001). “See § 765.401(1), Fla. Stat. (1997). [4] We have considered whether a limited exception to the one-year limitation should apply in a guardianship context.”
In Re Guardianship of Schiavo, 851 So. 2d 182 (Fla. 2d DCA 2003). “2d DCA 1989)); see also § 765.401(3), Fla. Stat. (2000). It is the trial judge's duty not to make the decision that the judge would make for himself or herself or for a loved one.”
— 765.401(l)(d) — 1 case
Angeli v. Kluka, 190 So. 3d 700 (Fla. 1st DCA 2016).
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