We agree with this analysis in enacting chapter 2003

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We agree with this analysis. In enacting chapter 2003-418, the Legislature failed to provide any standards by which the Governor should determine whether, in any given case, a stay should be issued and how long a stay should remain in effect. Further, the Legislature has failed to provide any criteria for lifting the stay. This absolute, unfettered discretion to decide whether to issue and then when to lift a stay makes the Governor’s decision virtually unreviewable. The Governor asserts that by enacting chapter 2003-418 the Legislature
- 23 - determined that he should be permitted to act as proxy for an incompetent patient in very narrow circumstances and, therefore, that his discretion is limited by the provisions of chapter 765. However, the Act does not refer to the provisions of chapter 765. Specifically, the Act does not amend section 765.401(1), Florida Statutes (2003), which sets forth an order of priority for determining who should act as proxy for an incapacitated patient who has no advance directive. Nor does the Act require that the Governor’s decision be made in conformity with the requirement of section 765.401 that the proxy’s decision be based on “the decision the proxy reasonably believes that patient would have made under the circumstances” or, if there is no indication of what the patient would have chosen, in the patient’s best interests. § 765.401(2)-(3), Fla. Stat. (2003). Finally, the Act does not provide for review of the Governor’s decision as proxy as required by section 765.105, Florida Statutes (2003). In short, there is no indication in the language of chapter 2003-418 that the Legislature intended the Governor’s discretion to be limited in any way. Even if we were to read chapter 2003-418 in pari materia with chapter 765, as the Governor suggests, there is nothing in chapter 765 to guide the Governor’s discretion in issuing a stay because chapter 765 does not contemplate that a proxy will have the type of open-ended power delegated to the Governor under the Act. We also reject the Governor’s argument that this legislation provides an
- 24 - additional layer of due process protection to those who are unable to communicate their wishes regarding end-of-life decisions. Parts I, II, III, and IV of chapter 765, enacted by the Legislature in 1992 and amended several times, 4 provide detailed 4. Prior to this Court’s decision in In re Guardianship of Browning , 568 So. 2d 4 (Fla. 1990), statutory law provided a procedure by which a competent adult could provide a declaration instructing his or her physician to withhold or withdraw life-prolonging procedures, or designating another to make the treatment decision. See §§ 765.01-765.17, Fla. Stat. (1991). This law had been in effect since 1984. In 1992, the Legislature repealed sections 765.01-765.17, see ch. 92-199, §10 at 1852, Laws of Fla., and enacted Parts I, II, III, and IV of chapter 765. See id. §§ 2-5. The Legislature provided that in the absence of an advance directive, a proxy may make health care decisions for an incapacitated patient. See ch. 92-199, § 5 at 1850 Laws of Fla.; § 765.401 Fla. Stat. (2003). “Health care decisions”

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