The Short Answer

In Florida, you can generally plan ahead for surgery by legally naming a person to make health care decisions for you if you become unable to do so. If you do not sign a health care surrogate designation (often what people mean by a “medical power of attorney”), Florida law may instead default to a priority list of who can act for you, which may not match your wishes.

What Florida Law Says

Florida law recognizes that a chosen decision-maker (a “surrogate”) can step in to make health care decisions when you lack decisionmaking capacity, and it also sets rules for how incapacity is determined and documented. If you have not executed an advance directive naming someone, Florida provides a statutory “proxy” list that can control who is allowed to make decisions—sometimes creating delays or family conflict at exactly the wrong time (such as right before or after surgery).

The Statute

The primary law governing this issue is Fla. Stat. § 765.401.

This statute establishes that if you have not executed an advance directive (or your chosen surrogate is unavailable), health care decisions may be made by a proxy in a specific order of priority (for example, spouse, adult children, parents, siblings, and others).

Why You Should Speak with an Attorney

While the statute provides the general rule, applying it to your specific situation is rarely simple. Legal outcomes often depend on:

• Strict Deadlines: Surgery timelines can be tight, and if incapacity is questioned, Florida law requires medical documentation of capacity determinations in the medical record, which can affect when a surrogate’s authority begins. See Fla. Stat. § 765.204.
• Burden of Proof: If end-of-life decisions ever become relevant, Florida law can require heightened proof (including “clear and convincing evidence” in certain situations) and compliance with additional statutory requirements. See Fla. Stat. §§ 765.205 and 765.401.
• Exceptions: If you do not name a surrogate, the default proxy order under § 765.401 may put decision-making power in the hands of someone you would not choose, or require agreement among multiple relatives (such as a majority of adult children), which can create disputes and treatment delays.

Trying to handle this alone can lead to documents that hospitals won’t accept, unclear authority at a critical moment, or family disagreements that derail your wishes.

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Disclaimer: This article provides general information under Florida law and does not create an attorney-client relationship. Laws change frequently. For legal advice specific to your situation, please consult with a licensed attorney.