Health Care Surrogate Designation
Portia B. Scott, J.D., L.L.M. • June 1, 2021

A common tool for planning for disaster.

No one likes to consider the possibility that she ever may not be able to make informed health care decisions for herself. Yet, there are times when that may be exactly what happens. The inability to make health care decisions may only be temporary, but they also may be permanent.


This is not the same as just making poor decisions for yourself. It is when you actually cannot make a decision.


For instances, you are driving along, obeying the laws of the road and are, nonetheless, involved in an accident which leaves you unconscious and injured. When the paramedics arrive, they do not need anybody’s permission to provide life-saving services. This is an emergency and that is exactly for which these professionals are trained and valued so much in our society.


However, after been taken into life-saving surgery, the physician notices another problem in its infancy. Very easily, the physician could stop this problem from further developing and becoming a much bigger issue in a few weeks. You, obviously, cannot give consent to the physician to deal with it now and, without someone appointed by you to make this decision, the physician may not do anything but the emergency surgery.


Another example is the patient, not involved in an accident this time, has had a series of strokes which renders him incapable of making the decision. A healthcare provider notices a slow growing skin cancer. The preferred treatment is immediate removal of the offensive cancer for it will continue to grow and will, eventually result is significant danger. However, right now, it is not an emergency under any definition.


If you have executed a Health Care Surrogate Designation (a “health power of attorney”) your designated choice can make these decisions for you, following what they believe would be your wishes. So, if the patient is going to recover from the strokes and is getting proper medications, the Surrogate would probably decide the skin cancer should and may be removed. 


Merely executing the document is not enough. The Surrogate must be informed of your choice and be given a copy. A copy should be provided to your primary health care provider as well as the hospital where you are most likely to be taken. 


The paper, though, should not be considered as a replace for a face-to-face conversation with your Surrogate about your wishes or you primary health care provider about who you have chosen. 


The Surrogate will also be authorized, according to the Statutes, to sign for your admission or transfer from one health care center to another.


The Surrogate takes on NO financial responsibility for you though.

 

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Appellate Court Issues Warning to Non-Attorneys Filing Appeals

By Portia B. Scott, J.D.,L.L.M. • March 26, 2026
The Florida trial courts' decisions are subject to appeal to a higher Court. This happens when a litigant (the Plaintiff or Defendant) believes the trial court made a mistake and that the mistake should be corrected. The mistake believed to have been made by the trial court can be based in the facts of the case ("that is not what the evidence showed"), the law ("that is not what the statute or other source of law says"), or both. A recent opinion from the 4th District Court of Appeal (which takes such claimed mistakes from the circuit trial courts in Broward, Palm Beach, Martin, St. Lucie, Indian River and Okeechobee Counties) dealt with an alleged mistake of law. The person who was claiming the mistake (the Appellant), was representing herself. Without an attorney to help her write the appeal, she resorted to Artificial Intelligence ("AI"), as we can expect many people do or might start doing. The decision came back from the 4th District Court of Appeal, disagreeing with her; the appeals court found no error by the trial court. But for the use of Al, there probably would not have been any thing actually written. The 4th would have just said something like, "we find no error." However, the Al tool had "hallucinated" what other, prior District Courts' had said. In the paperwork submitted by the Appellant, she had cited certain old cases saying that these cases were opposite of what the trial court had ruled. She claimed that the trial court had used the wrong law and that she should have won. The problem, as you might have guessed, is that the cases did not exist - some of them not at all. Other cases she cited to the 4th were actual cases, but did not say what her Al asserted they said. Here is the reason everyone needs to know this: Self-represented litigants are held to the same standards as an attorney. Obviously, attorneys are not allowed to make up old cases and present them to a Court (trial or otherwise). If we do use Al to help find the old cases, we absolutely have to check to make sure that they are real and do exist. If we do not, we can be sanctioned - maybe even having to pay the other side's attorney's fees which, for an appeal, can easily be in the tens of thousands of dollars! That is a scary prospect. The self-represented litigant could have faced sanctions - just like her attorney would have had she had one. In this particular case (Roussell v. Bank of New York Mellon, Etc., decided March 11, 2026), the appellate court did NOT sanction her, but easily could have. This was probably a decision issued as a warning to all.

The Deed, the Daughter, and the Paper Trail

By Portia B. Scott, J.D.,L.L.M. • February 19, 2026
For those of you who like history, consider the study and application of law. Studying history is, effectively, 90% of what we attorneys do. When there is a lawsuit, for instance, you obviously want your client to win. The methods of winning are, of course, having the facts on your side but you also need to have the law on your side or, extremely rarely, you change the law. The first question for the attorney is, "What does the applicable statute say?" followed closely by "How have other courts handled this question in the past?" These are the starting point for an attorney, once she knows (or think she knows) what has happened. Let's take an incapacity determination as an example. The worried daughter comes in after having spent some quality time with her father over the holidays. She indicates that her dad said and did some things which made her question if it is okay for him to continue to live alone. The attorney asks questions about her father, including how long has he been living alone? Has he been diagnosed with anything? How about his physical abilities, are they impaired at all? The daughter tells us that, after his wife died a few months ago, Dad suddenly spiraled downward. This may or may not be true, though it is certainly the daughter's perception. Was his wife actually covering for him for years and did such a good job no one noticed? Maybe. We learn that father has a degree in accounting and supported himself and the family with an accounting business. Now, he does not seem to know how to balance his accounts. Still, when asked, he said he did not need to write it down. "It is all up 'in the cloud' now." He needs a walker, but often forgets to use it. He has fallen twice in the last couple of months, but does not remember how long ago or that he went to the hospital, saying later, "oh, yes, but that was just the ER." He used to wear button down shirts but now only pull overs - saying that he wore a shirt and tie for too many years while he worked. But, he did mis-buttoned his shirt the one night when they went out for dinner. He cannot figure out how to turn off his phone and sometimes confuses the handset from his land-line for the remote control for the television. Specifically, the daughter met a young man who has been helping dad around the house and who says he can get insurance to pay for his help if dad will sign an "insurance" form. Dad's eyesight isn't so good, but the young man has been so helpful and he would like him to get paid from Medicare, so he signs. But, the young man won't give a copy to her father or the daughter. The daughter is concerned about that happening again, with an unscrupulous person and, perhaps, this young man. So, our first study of history is the father's own immediate past. Over the last 10 years, what has changed. For the answers to this, we need to consult with the daughter. Maybe he was always like this. Once we know that, no, this is different, the daughter decides that, because Dad has a financial Power of Attorney and a Designation of Health Care decision-maker, there is no need for a Guardian. She just needs to make sure that Father cannot do himself any financial harm, unless he understands truly what he is doing. Now, we start our next historical search. What are the standards which our elected officials over the past years (the legislature) have established for the Judges to observe. After a review of the prior Legislatures' directions on how to proceed and who may do so, we perform quick up-date to see if that statutory law has undergone any changes and, if not, the real history search begins. We need to look at the decisions prior courts have made about any special question. Does the fact that dad had not been diagnosed wth dementia prior to him signing the nice young man's "insurance authority" matter? Especially now that we have discovered it was actually a Deed to his house? We find the cases which were argued and won by people in the daughter's position. Then we find the similarities and, equally important, the differences. If our history lesson provides us with old cases, which have been approved time after time before us clearly reflecting the daughter's position, we can bring those cases to our judge's attention to be successful in our attempt to keep her father from signing away his house again, after being exploited by his illness and the young man's greed. This is but one, tiny example of how our history is part of everything we, as attorneys do, day in and day out. It emphasizes that we are history ourselves. Some day in the not-too-distant future, attorneys (or their Al assistants) will cite our very work either as an example of how things should be done or, heaven forbid!, how they should not be done.