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The 2024 Florida Statutes
(including 2025 Special Session C)
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F.S. 765.401765.401 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.
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Annotations, Discussions, Cases:
Cases Citing Statute 765.401
Total Results: 19
403 F.3d 1223, 2005 U.S. App. LEXIS 4702
Court of Appeals for the Eleventh Circuit | Filed: Mar 23, 2005 | Docket: 344466
Cited 365 times | Published
concerning decisions made by the proxy. See Fla. Stat. § 765.401(1). Where a decision by the proxy is challenged
902 So. 2d 296, 2005 WL 1226070
District Court of Appeal of Florida | Filed: May 25, 2005 | Docket: 2544764
Cited 41 times | Published
was, at best, as a health care proxy under section 765.401, Florida Statutes (2001). Riva had been *300
885 So. 2d 321, 2004 WL 2109983
Supreme Court of Florida | Filed: Sep 23, 2004 | Docket: 263908
Cited 31 times | Published
765. Specifically, the Act does not amend section 765.401(1), Florida Statutes (2003), which sets forth
766 So. 2d 1199, 2000 Fla. App. LEXIS 11893, 2000 WL 1345513
District Court of Appeal of Florida | Filed: Sep 20, 2000 | Docket: 1329491
Cited 25 times | Published
the DPA conflicts with section 765.401, Florida Statutes (1999). Section 765.401 sets forth an order of
792 So. 2d 551, 2001 WL 770772
District Court of Appeal of Florida | Filed: Jul 11, 2001 | Docket: 1735492
Cited 16 times | Published
2000 to withdraw life-prolonging procedures. See § 765.401(3), Fla. Stat. (2000); In re Guardianship of Browning
780 So. 2d 176, 2001 WL 55481
District Court of Appeal of Florida | Filed: Jan 24, 2001 | Docket: 2518093
Cited 15 times | Published
thereby likely to inherit from the patient. See § 765.401, Fla.Stat. (2000). Thus, the fact that a surrogate
800 So. 2d 640, 2001 WL 1230544
District Court of Appeal of Florida | Filed: Oct 17, 2001 | Docket: 1283113
Cited 11 times | Published
§ 765.305(2)(a), Fla. Stat. (2000).
[3] See § 765.401, Fla. Stat. (2000).
[4] The Schindlers did not
357 F. Supp. 2d 1378, 2005 U.S. Dist. LEXIS 4265, 2005 WL 641710
District Court, M.D. Florida | Filed: Mar 22, 2005 | Docket: 2514117
Cited 6 times | Published
concerning decisions made by the proxy. See Fla. Stat. § 765.401(1). Where a decision by the proxy is challenged
851 So. 2d 182, 2003 WL 21295656
District Court of Appeal of Florida | Filed: Jun 6, 2003 | Docket: 568055
Cited 6 times | Published
2d 258, 273-74 (Fla. 2d DCA 1989)); see also § 765.401(3), Fla. Stat. (2000). It is the trial judge's
358 F. Supp. 2d 1161, 2005 U.S. Dist. LEXIS 4609, 2005 WL 677224
District Court, M.D. Florida | Filed: Mar 25, 2005 | Docket: 2298134
Cited 3 times | Published
permitted by Cruzan and in accordance with Fla. Stat. § 765.401(3).[5] To the extent Plaintiffs complain that
Supreme Court of Florida | Filed: Sep 5, 2024 | Docket: 69131363
Published
making a living will; notice
to physician.
§ 765.401, Fla. Stat. The proxy.
Rule References
District Court of Appeal of Florida | Filed: Mar 2, 2022 | Docket: 63127986
Published
agent is authorized to act for the principal.”);
§ 765.401, Fla. Stat. (2020) (explaining that “health care
Supreme Court of Florida | Filed: Sep 3, 2020 | Docket: 18407701
Published
making a living will; notice to physician.
§ 765.401, Fla. Stat. The proxy.
Rule References
Supreme Court of Florida | Filed: Dec 19, 2019 | Docket: 16761661
Published
making a living will; notice to physician.
§ 765.401, Fla. Stat. The proxy.
Rule References
Supreme Court of Florida | Filed: Nov 14, 2019 | Docket: 16761661
Published
making a living will; notice to physician.
§ 765.401, Fla. Stat. The proxy.
Rule References
190 So. 3d 700, 2016 WL 3001813, 2016 Fla. App. LEXIS 7900
District Court of Appeal of Florida | Filed: May 25, 2016 | Docket: 60254953
Published
a parent — singular— to make such decisions. § 765.401(l)(d), Fla. Stat. (providing a list of individuals
986 So. 2d 576, 33 Fla. L. Weekly Supp. 542, 2008 Fla. LEXIS 1242, 2008 WL 2686339
Supreme Court of Florida | Filed: Jul 10, 2008 | Docket: 1426902
Published
for making a living will; notice to physician.
§ 765.401, Fla. Stat. The proxy.
Rule References
Fla. Prob
403 F.3d 1289, 2005 U.S. App. LEXIS 4867
Court of Appeals for the Eleventh Circuit | Filed: Mar 25, 2005 | Docket: 398230
Published
permitted by Cntzan and in accordance with Fla. Stat. § 765.401(3). n5. To [*14] the extent Plaintiffs complain
916 So. 2d 814, 2005 WL 600377
District Court of Appeal of Florida | Filed: Mar 16, 2005 | Docket: 2450596
Published
2d 258, 273-74 (Fla. 2d DCA 1989)); see also § 765.401(3), Fla. Stat. (2000). It is the trial judge's
