Florida: Health Care Power of Attorney Requirements

Florida calls the health care power of attorney a health care surrogate
designation. It is the document that names someone (your "surrogate") to make
medical decisions for you, and it lives in Part II of Florida's Health Care
Advance Directives law, chapter 765. It is a separate document from the Part III
"living will," where you record your own end-of-life treatment wishes — though
one form can contain both, and Florida's suggested form does.

Requirements one by one

Governing law and document

The surrogate designation is governed by §§ 765.201–765.205. Chapter 765 treats
the designation, the living will, and an anatomical gift all as kinds of "advance
directive" (§ 765.101(1)), but the execution rules for the surrogate designation
are its own. Florida publishes a suggested — not mandatory — form at
§ 765.203; you are free to use a different document as long as it meets the
signing and witness rules below.

Who can sign

The principal must be a "competent adult" (§ 765.101(18)). If you are unable to
sign, § 765.202(1) lets you, "in the presence of witnesses, direct that another
person sign the principal's name."

Witnesses or notary

This is where Florida differs from states like California and Texas. Under
§ 765.202(1), the document "shall be signed by the principal in the presence of
two subscribing adult witnesses." There is no notary alternative — a notary
does not substitute for the two witnesses (though the suggested form notes a
notary block is optional and only useful for out-of-state recognition). Two
witnesses is the requirement.

Who can't witness or serve

Florida's witness restrictions are lighter than most states'. Section 765.202(2)
imposes only two: "[t]he person designated as surrogate shall not act as
witness," and "[a]t least one person who acts as a witness shall be neither the
principal's spouse nor blood relative." Your other witness can be a relative.
Notably, Florida places no statutory disqualification on who may serve as your
surrogate beyond being a competent adult (§ 765.101(21)) — your treating
physician or a nursing-home employee is not barred from serving, unlike in many
states.

When the surrogate can act

By default the authority is springing. Under § 765.204(2)–(3), if your capacity
is in question the primary or attending physician evaluates it, records a finding
of incapacity in your medical record, and the "surrogate's authority commences ...
upon a determination ... that the principal lacks capacity." You can override the
default: § 765.202(6) and the § 765.203 form let you stipulate that the surrogate's
authority "is exercisable immediately," even while you still have capacity. Even
then, your own decisions control while you are capable (§ 765.204(3)).

Surrogate's powers and limits

Once the authority is in effect, § 765.205(1)(a) gives the surrogate authority "to
make all health care decisions for the principal during the principal's
incapacity," following your instructions, then your likely wishes, then your best
interest (§ 765.205(1)(b)). Florida does not attach the long categorical exclusion
list some states use. Two limits stand out: to withhold or withdraw
life-prolonging procedures, the added conditions of Part III apply
(§ 765.204(6)); and for mental health treatment where a court has found you
incompetent to consent and appointed a guardian advocate, § 765.202(5) lets you
designate a separate surrogate (and presumes your health care surrogate fills that
role unless the document says otherwise).

How to revoke

Under § 765.104(1) a competent principal may amend or revoke "at any time" by a
signed, dated writing; by physically destroying the document; by "an oral
expression of intent"; or by signing a later, materially different directive. The
change takes effect when it is "communicated to the surrogate, health care
provider, or health care facility" (§ 765.104(3)). Separately, § 765.104(2)
automatically revokes a former spouse's designation on "dissolution or annulment
of marriage" unless the document says otherwise.

Out-of-state directives

Section 765.112 is short and broad: "An advance directive executed in another
state in compliance with the law of that state or of this state is validly
executed for the purposes of this chapter."

What trips people up

• A notary does not replace the witnesses. Some people notarize the form and
  skip a second witness. In Florida that is not enough — you need two adult
  witnesses (§ 765.202(1)). A notary is optional and adds nothing to validity.
• Your surrogate cannot be a witness. The person you are appointing has to
  stay off the witness lines (§ 765.202(2)). Using them as a witness undercuts the
  designation.
• At least one witness must be outside your family. One witness can be a
  spouse or blood relative, but at least one must be neither (§ 765.202(2)). Two
  relatives will not do.
• Signing does not put your surrogate in charge today. Unless you initial the
  "effective immediately" box, your surrogate's authority does not begin until a
  physician determines and records that you lack capacity (§ 765.204(2)–(3)).
• Divorce cancels a spouse-surrogate automatically. If you named your spouse
  and later divorce, that designation is revoked by law (§ 765.104(2)); sign a new
  one if you still want that person to serve.

Common questions

Does a Florida health care surrogate form need to be notarized?
No. Florida requires two adult witnesses, not a notary (§ 765.202(1)). A notary is
optional and mainly helps if you expect to use the form in another state.

Can my doctor or a nursing home employee be my surrogate?
Florida law does not bar it — the only statutory requirement for a surrogate is
that the person be a competent adult (§ 765.101(21)). (Facility policy or good
practice may still counsel against it.)

When does my surrogate get to make decisions?
When your physician determines and records that you cannot make your own decisions
(§ 765.204), unless you initialed the box making the authority effective
immediately (§ 765.202(6)).

Will a surrogate form I signed in another state work in Florida?
Yes, if it was validly executed under that state's law or Florida's (§ 765.112).

Statutes and sources

All sections read from the official 2025 Florida Statutes at flsenate.gov
(accessed 2026-07-16):

• Fla. Stat. § 765.101 — definitions of "principal" and "surrogate," including
  the immediate-vs-incapacity election.
  https://www.flsenate.gov/Laws/Statutes/2025/765.101
• Fla. Stat. § 765.202 — designation of a health care surrogate: two
  witnesses, surrogate cannot witness, one non-relative witness.
  https://www.flsenate.gov/Laws/Statutes/2025/765.202
• Fla. Stat. § 765.203 — suggested statutory form.
  https://www.flsenate.gov/Laws/Statutes/2025/765.203
• Fla. Stat. § 765.204 — capacity determination and when the surrogate's
  authority commences.
  https://www.flsenate.gov/Laws/Statutes/2025/765.204
• Fla. Stat. § 765.205 — the surrogate's authority and decision standard.
  https://www.flsenate.gov/Laws/Statutes/2025/765.205
• Fla. Stat. § 765.104 — amendment, revocation, and the effect of divorce.
  https://www.flsenate.gov/Laws/Statutes/2025/765.104
• Fla. Stat. § 765.112 — recognition of an out-of-state advance directive.
  https://www.flsenate.gov/Laws/Statutes/2025/765.112