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Florida Statute 765.401 | Lawyer Caselaw & Research
F.S. 765.401 Case Law from Google Scholar
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Link to State of Florida Official Statute Google Search for Amendments to 765.401

The 2023 Florida Statutes (including Special Session C)

Title XLIV
CIVIL RIGHTS
Chapter 765
HEALTH CARE ADVANCE DIRECTIVES
View Entire Chapter
F.S. 765.401
765.401 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.

F.S. 765.401 on Google Scholar

F.S. 765.401 on Casetext

Amendments to 765.401


Arrestable Offenses / Crimes under Fla. Stat. 765.401
Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 765.401.



Annotations, Discussions, Cases:

Cases from cite.case.law:

ST. JOSEPH S HOSPITAL, INC. v. DOE,, 208 So. 3d 1200 (Fla. Dist. Ct. App. 2017)

. . . (d) A system for informing a patient or an individual identified pursuant to s. 765.401(1) that the patient . . .

S. ANGELI, S. I. a v. A. KLUKA, M. D. d b a s, 190 So. 3d 700 (Fla. Dist. Ct. App. 2016)

. . . . § 765.401(l)(d), Fla. Stat. . . .

In AMENDMENTS TO FLORIDA PROBATE RULES, 986 So. 2d 576 (Fla. 2008)

. . . Procedure for mak- § 765.401, Fla. Stat. The proxy. Rule References Fla. Prob. . . . Procedure for making a living will; notice to physician. § 765.401, Fla. Stat. The proxy. . . .

BLANKFELD, v. RICHMOND HEALTH CARE, INC. d b a, 902 So. 2d 296 (Fla. Dist. Ct. App. 2005)

. . . His authority to sign the contract was, at best, as a health care proxy under section 765.401, Florida . . . Section 765.401, Florida Statutes (2001), entitled “Absence of advanced directive,” provides that if . . . Section 765.401 specifies that a proxy is authorized to make only “health care decisions.” . . . because the patient is “incapacitated or developmentally disabled” and cannot do so for herself. § 765.401 . . . Even a social worker who is a stranger can be a proxy under section 765.401. . . . To suppose that section 765.401 empowers mere proxies to enter into contracts to waive property-related . . . Section 765.401(2) requires all proxy health care decisions to be an informed consent. § 765.401(2), . . . See § 765.401(2) (“Any health care decision made under this part must be based on the proxy’s informed . . . fit and proper and qualified to act as guardian, whether related to the ward or not.”); see also § 765.401 . . .

SCHIAVO, SCHINDLER v. SCHIAVO, W., 403 F.3d 1289 (11th Cir. 2005)

. . . . § 765.401(3). n5. . . . Stat. § 765.401(3) provides, in pertinent part: Before exercising the incapacitated patient’s rights . . .

SCHIAVO, SCHINDLER v. SCHIAVO, W., 358 F. Supp. 2d 1161 (M.D. Fla. 2005)

. . . . § 765.401(3). . . . Stat. § 765.401(3) provides, in pertinent part: Before exercising the incapacitated patient’s rights . . .

SCHIAVO, SCHINDLER v. SCHIAVO, W., 403 F.3d 1223 (11th Cir. 2005)

. . . . § 765.401(1). . . .

SCHIAVO, SCHINDLER v. SCHIAVO, W., 357 F. Supp. 2d 1378 (M.D. Fla. 2005)

. . . . § 765.401(1). . . .

In GUARDIANSHIP OF SCHIAVO, T. v., 916 So. 2d 814 (Fla. Dist. Ct. App. 2005)

. . . .1990) (affirming In re Guardianship of Browning, 543 So.2d 258, 273-74 (Fla. 2d DCA 1989)); see also § 765.401 . . . make a decision that the clear and convincing evidence shows the ward would have made for herself. § 765.401 . . . While this case has been pending, sections 765.401 and 765.404, Florida Statutes (1999— 2003), have been . . . Those recommendations resulted in a proposed amendment to section 765.401(3) that expanded the powers . . . See § 765.401(3), Fla. Stat. (1997). . . .

BUSH, v. SCHIAVO,, 885 So. 2d 321 (Fla. 2004)

. . . Specifically, the Act does not amend section 765.401(1), Florida Statutes (2003), which sets forth an . . . the Act require that the Governor’s decision be made in conformity with the requirement of section 765.401 . . . See § 765.401(2)-(3). . . . See ch. 92-199, § 5 at 1850 Laws of Fla.; § 765.401 Fla. Stat. (2003). . . . Ch. 92-199, § 5 at 1851, Laws of Fla.; see also § 765.401(3), Fla. Stat. (2003). . . .

In GUARDIANSHIP OF SCHIAVO, v., 851 So. 2d 182 (Fla. Dist. Ct. App. 2003)

. . . .1990) (affirming In re Guardianship of Browning, 543 So.2d 258, 273-74 (Fla. 2d DCA 1989)); see also § 765.401 . . . make a decision that the clear and convincing evidence shows the ward would have made for herself. § 765.401 . . .

In GUARDIANSHIP OF SCHIAVO, v., 800 So. 2d 640 (Fla. Dist. Ct. App. 2001)

. . . See § 765.401, Fla. Stat. (2000). . . . .

In GUARDIANSHIP SCHIAVO, v. v., 792 So. 2d 551 (Fla. Dist. Ct. App. 2001)

. . . See § 765.401(3), Fla. Stat. (2000); In re Guardianship of Browning, 568 So.2d 4, 16. . . . See § 765.401(1), Fla. Stat. (1997). . . . .

In GUARDIANSHIP OF SCHIAVO, v., 780 So. 2d 176 (Fla. Dist. Ct. App. 2001)

. . . See § 765.401, Fla.Stat. (2000). . . .

LOWE, v. BROWARD COUNTY,, 766 So. 2d 1199 (Fla. Dist. Ct. App. 2000)

. . . Lowe next argues that section 16/£ -158(c) of the DPA conflicts with section 765.401, Florida Statutes . . . Section 765.401 sets forth an order of priority applicable in the absence of a patient’s designation . . . To the extent that the DPA overrides the order of priority established by section 765.401, it is in conflict . . . that we hold section 16/é-158(c) to be unconstitutional to the extent that it conflicts with section 765.401 . . .