Hospitals do not take a poll of who brought the overnight bag. If you cannot make a health-care decision, Florida looks for a piece of paper. If there is no paper, Florida looks at a list. An unmarried partner is on that list only at the bottom, and only as a "close friend," after a legal spouse and blood family have had their turn.

Chapter 765 is the advance-directives statute. A designation of a health-care surrogate is how you put a chosen person first. Section 765.202 requires a writing signed by the principal in the presence of two subscribing adult witnesses. The designated surrogate may not be a witness. At least one witness must be neither the principal's spouse nor a blood relative. The designation may name an alternate. A designation executed this way creates a rebuttable presumption of clear and convincing evidence of the principal's choice.

The statute also lets the principal make the surrogate's authority immediate, without a determination of incapacity (section 765.202(6); section 765.101(21)). The suggested form in section 765.203 puts that choice in initial boxes. If those boxes are blank, decision-making waits for incapacity. While the principal has capacity, the principal's wishes control (section 765.204(1)).

"Health information" is not a casual phrase. Section 765.101(9) defines it by reference to 45 C.F.R. section 160.103 and the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. section 1320d: information created or received by a provider, facility, health plan, and listed others, that relates to past, present, or future physical or mental health, the provision of health care, or payment for it. The suggested form in section 765.203 includes a separate initialed authorization for the surrogate to receive that information. A financial durable power of attorney is not this document. A partner who can sign at the bank still may be shut out of the chart.

Section 765.204 sets the incapacity procedure. The primary or attending physician evaluates capacity and records the conclusion. If that physician is unsure, a second physician must agree. The facility then notifies the surrogate, or an agent under a durable power of attorney, in writing that authority has commenced.

One notice rule is easy to miss when the surrogate is a partner. Upon commencement of the surrogate's authority, a surrogate who is **not** the principal's spouse "shall notify the principal's spouse or adult children of the principal's designation of the surrogate" (section 765.204(3)). The statute assumes there may be a spouse or adult children to call. It does not assume the partner is the family. Naming the partner does not hide the designation from them.

The surrogate's job is in section 765.205. Unless the principal limited the authority, the surrogate makes health-care decisions during incapacity, consults with providers, gives informed consent in line with what the principal would have wanted, has access to appropriate health information, and may apply for public benefits such as Medicare and Medicaid. If a court later appoints a guardian, the surrogate generally continues to make health-care decisions unless the court modifies or revokes that authority.

A living will is a different instrument. Section 765.101(13) defines it as a witnessed writing, or a witnessed oral statement, expressing instructions about life-prolonging procedures. Section 765.302 lets any competent adult direct the providing, withholding, or withdrawal of life-prolonging procedures if the person has a terminal condition, an end-stage condition, or is in a persistent vegetative state. The living will must be signed in the presence of two subscribing witnesses, one of whom is neither a spouse nor a blood relative. Section 765.304 then tells the physician when to follow it: the principal does not have a reasonable medical probability of recovering capacity; the principal has a terminal condition, an end-stage condition, or is in a persistent vegetative state; and any limitations in the declaration have been considered. A living will without a surrogate is instructions to the doctor. It is not a partner with authority.

If there is **no** advance directive, and no available designated or alternate surrogate, section 765.401 supplies a **proxy**, in this order, if no one in a prior class is reasonably available, willing, and competent to act:

(a) a judicially appointed guardian, or a guardian advocate for a person with a developmental disability, already authorized to consent to medical treatment -- but the statute does not require a guardianship before someone on this list may act;

(b) the patient's **spouse**;

(c) an adult child, or a majority of adult children who are reasonably available;

(d) a parent;

(e) an adult sibling, or a majority of adult siblings who are reasonably available;

(f) an adult relative who has exhibited special care and concern, has maintained regular contact, and is familiar with the patient's activities, health, and religious or moral beliefs;

(g) a close friend of the patient;

(h) a clinical social worker selected by a provider's bioethics committee, with extra process for withholding life-prolonging procedures.

An unmarried partner is not listed as a partner. At best the partner is a "close friend." Section 765.101(3) defines "close personal friend" as a person 18 or older who has exhibited special care and concern and who presents an **affidavit** to that effect, including regular contact with the patient's activities, health, and beliefs. Even then, the partner acts only if no one in classes (a) through (f) is reasonably available. A legal spouse, an adult child, a parent, a sibling, or a qualifying relative who is willing to act will be called first.

Same-sex spouses who are legally married are spouses for this list. Unmarried partners of any gender are not. A decades-long household does not move someone from class (g) to class (b).

Proxy decisions must be based on informed consent and on what the proxy reasonably believes the patient would have done. A proxy's decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence of the patient's choice, or, if there is no indication, that the decision is in the patient's best interest (section 765.401(2)-(3)). That is a higher practical burden than a designated surrogate carrying a signed form.

The Florida Bar points the public to Agency for Health Care Administration forms that the Florida Supreme Court has approved, and states that neither the Court nor the Bar opines that those forms match current law. Lawyer-drafted designations still matter for naming a partner ahead of estranged relatives and making authority immediate.

The stack that matches the statute is a designation of health-care surrogate that names the partner and an alternate, with the health-information initials actually marked; a living will as a separate document; and a durable financial power of attorney that is not asked to do the hospital's job. Without the first of those, Florida's default is spouse, then blood family, then -- maybe -- a close friend with an affidavit.

This article is general information, not advice about a particular hospitalization or a particular set of directives. The Law Office of Shawn C. Newman, P.A. offers a free consultation in person or by Zoom. Call (954) 563-9160 or visit www.shawnnewman.com. The office is at 710 NE 26th Street, Wilton Manors, Florida 33305, and serves Broward, Palm Beach, and Miami-Dade Counties.