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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And furthermore....

By Portia B. Scott, J.D.,L.L.M. • April 2, 2026
Another Warning from our Appellate Court Regarding Al I hate to repeat myself, but.... The March 25, 2026 release of written opinions from our own Fourth District Court of Appeal (4th DCA) has another warning to persons venturing into the Court system. As you may know, I wrote about a warning from the 4th DCA about a self- represented Appellant (person seeking to have the trial court's decision overturned) using Al and the possible, but not inflicted, sanctions which could have resulted. Now, again, in Gouveia v. Meridian Financial Investments, LLC, the 4th DCA has again written to address this increasingly abusive use of Al in the Courts. In this more recent case, there was a contract dispute and the trial court ruled in favor of the Plaintiff (the party making the complaint...get it? "Plaint-iff" based on "Com-Plaint?"). The losing side filed an appeal, asking for the 4th DCA to overturn the decision of the trial court. Well, that went nowhere and the Plaintiff kept its win. The story here is that the person who lost at trial and on appeal, in his case and appeal to the 4th DCA apparently used Al to help write his argument. The Al manufactured ("hallucinated") prior cases which did not exist or, if they did exist, did not stand for what the person said it did. It would be as if the person made reference to Roe v. Wade (a case which does exist) and told the appeals court that it stood for the legal principal that a Jack of Spades has a higher value in poker than the King of Spades (which is absolutely not what Roe v. Wade said). Is that straight-up nonsense? Yes and as absurd as that which was submitted to the appeals court as if it were true. The Court issued another warning about the possibilities of sanctions if it is done again by the person submitting it, just like before. But, as the concurring opinion in this case points out something else (a "concurring opinion" is a written opinion which agrees with the actual opinion but has more to say). The concurring opinion points out how meaningless it is to threaten sanctions against someone who will most likely not be before the Court again. That means that the opportunity to misbehave for this person is greatly reduced. Most self-represented folks only appear once -if at all- before the appellate court. The concurring opinion said that with attorneys, it is not a problem as sanctions will work against us, seeing how we are in court so often. What is the solution? The writer of the concurring opinion doesn't know but suggests some pro-active steps. (Sanctions are, by their very nature, reactive - they are issued in response to something done.) Perhaps forcing sworn statements from the parties that they have not used Al or, if they have, exactly what the Al included; that the party submitting the Al- generated document has double-checked the sources. Something which can help us all work with the rising tide of Al, Chatbots, LLM tools.  Stay tuned!

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.