Florida Q and A

Ten commonly asked questions about PAD’s for Florida

Please note: the following 10 FAQs are designed to provide a quick and accessible guide to what your state’s statutes say – or do not say – about PADs.  The FAQs do not attempt to provide a complete picture of the law in your state, nor can they take the place of legal advice.  The answers were accurate when written in October 2006.

1.  Can I write a legally-binding psychiatric advance directive (PAD)?

Yes.  Chapter 765 of the Florida Statutes, entitled “Health Care Advance Directives” allows you to appoint an agent to make decisions about your treatment if you become incompetent to make decisions.  In Florida, such a person is known as a “Health Care Surrogate”.  The Florida statute also allows you to write instructions about how you would like your mental health care to proceed.  This is known as a “Declaration”. 

2.  Can I write advance instructions regarding psychiatric medications and/or hospitalization?

Yes.  The statute allows you to set out your instructions on any aspect of your health care treatment, which could include advance decisions about psychiatric medications and/or hospitalization.  If you wish, you may make advance decisions to refuse medications or hospitalization.  If you wish to consent to electroconvulsive therapy (ECT), experimental procedures or certain other procedures, you must make that clear on your form or other document.  Otherwise, it will be assumed that you do not consent to such procedures.

3.  Does anyone have to approve my advance instructions at the time I make them?

No.  However, the document containing your advanced instructions must be signed by two adult witnesses.  Neither witness may be an employee of your health care provider, and one must be someone other than your spouse or blood relative.

4.  Can I appoint an agent to make mental health decisions for me if I become  incompetent?

Yes.  The statute also permits a person who has already become incompetent to designate an agent simply by informing his/her mental health care providers orally.

5.  If I become incompetent, can my agent make decisions for me about medications, and/or hospitalization?

Yes.  Your Health Care Surrogate may make decisions about anything that you could decide on, subject to the operation of the Baker Act (see below).

6.  Does my agent have to make decisions as he/she thinks I would make them (known as “substituted judgment”), or does he/she have to make them in my “best interests”?

Your Health Care Surrogate must exercise substituted judgment.  If there is no indication of what your choice would be in a particular situation, your agent must act in your best interests.

7.  Is there any rule that says that I can only make advanced instructions, only appoint an agent, or that I must do both?

No.  You may do one, the other, or both.

8.  Before following my PAD, would my mental health care providers need a court to determine I am not competent to make a certain decision?

No.  All that is required is that your attending physician decide you lack competence.  If your attending physician is uncertain, he/she must consult another physician.  In the event that you are determined to lack competence, your medical notes must be endorsed and your Health Care Surrogate, if you have one, must be notified.

9.  Does the statute say anything about when my mental health providers may decline to follow my PAD?

Yes.  If you are subject to the Baker Act, the state will be able to hospitalize and/or treat you against your will, which may include a decision not to follow your written instructions, or the instructions of your Health Care Surrogate.  If you do become subject to the Baker Act, your health care decisions must be governed by a court-appointed Guardian Advocate.

10.  How long does my PAD remain valid?

The document containing your instructions and/or agent nomination is valid as long as you do not revoke it. If you make a new document and are competent to do so at that time, it automatically revokes the old document.  You may also revoke your document at any time by signing a statement of that intention, by telling your clinicians, or by burning, tearing or obliterating it.  If you appoint your spouse as your agent, he or she would no longer be a valid agent if you became divorced or legally separated after you wrote the document.  In that situation, you would need to amend the document to clarify who should be your agent.