1

A bill to be entitled

2

An act relating to guardian advocates for persons with

3

developmental disabilities; amending s. 393.12, F.S.;

4

providing that the guardian advocate need not be

5

represented by an attorney; providing a list of persons

6

from which the court must select a guardian advocate;

7

revising the requirements for the petition seeking the

8

appointment of a guardian advocate to exclude the name of

9

the proposed guardian advocate; modifying the persons to

10

whom a notice of the filing of the petition must be given

11

to include family members; requiring the court's order to

12

name the guardian advocate and the reasons why the

13

advocate was selected; modifying who may be appointed

14

counsel to a person with developmental disabilities;

15

including the office of criminal conflict and civil

16

regional counsel; revising the powers and duties of the

17

guardian advocate with respect to financial accounting

18

requirements; amending s. 393.13, F.S.; conforming a

19

cross-reference; providing an effective date.

20

21

Be It Enacted by the Legislature of the State of Florida:

22

23

     Section 1.  Section 393.12, Florida Statutes, is amended to

24

read:

25

     393.12  Capacity; appointment of guardian advocate.--

26

     (1)  CAPACITY.--

27

     (a) The issue of capacity shall be separate and distinct

28

from a determination of the appropriateness of admission to

29

nonresidential services or residential care for a condition of

30

developmental disabilities. A No person with a developmental

31

disability may not shall be presumed incapacitated solely by

32

reason of his or her acceptance in nonresidential services or

33

admission to residential care and may not; nor shall any such

34

person be denied the full exercise of all legal rights guaranteed

35

to citizens of this state and of the United States.

36

     (b) The determination of incapacity issue of capacity of a

37

person with developmental disabilities and the appointment of a

38

guardian must shall be conducted determined in a separate

39

proceeding according to the procedures and requirements of

40

chapter 744 and the Florida Probate Rules.

41

     (c) A person being considered for or selected to be a

42

guardian advocate need not be represented by an attorney unless

43

required by the court.

44

     (2)  APPOINTMENT OF A GUARDIAN ADVOCATE.--

45

     (a) Conditions.--A circuit probate court may appoint a

46

guardian advocate, without an adjudication of incapacity, for a

47

person with developmental disabilities, if the person lacks the

48

capacity to do some, but not all, of the tasks necessary to care

49

for his or her person, property, or estate or if the person has

50

voluntarily petitioned for the appointment of a guardian

51

advocate. Except as otherwise specified, the proceeding shall be

52

governed by the Florida Rules of Civil Procedure.

53

     (b) In selecting a guardian advocate, the court shall give

54

preference to a health care surrogate if one has already been

55

designated by the person. If the person has not previously

56

selected a health care surrogate or except for good cause

57

documented in the court record, the selection must be made from

58

the following persons, if willing and able, in the following

59

order:

60

     1. The person's spouse.

61

     2. An adult child of the person.

62

     3. A parent of the person.

63

     4. An adult sibling of the person.

64

     5. A grandparent of the person.

65

     6. An adult next of kin of the person, other than the

66

persons listed in subparagraphs 1.-5., who has an active

67

relationship with the person.

68

     7. An adult friend of the person.

69

     8. A natural person or corporation qualified to serve as a

70

guardian.

71

     (3)(b) PETITION.--A petition to appoint a guardian advocate

72

for a person with developmental disabilities may be executed by

73

an adult person who is a resident of this state.  The petition

74

must shall be verified and must shall:

75

     (a)1. State the name, age, and present address of the

76

petitioner and his or her relationship to the person with

77

developmental disabilities;

78

     (b)2. State the name, age, county of residence, and present

79

address of the person with developmental disabilities;

80

     (c)3. Allege that the petitioner believes that the person

81

needs a guardian advocate and specify the factual information on

82

which such belief is based;

83

     (d)4. Specify the exact areas in which the person lacks the

84

capacity to make informed decisions about his or her care and

85

treatment services or to meet the essential requirements for his

86

or her physical health or safety;

87

     (e)5. Specify the legal disabilities to which the person is

88

subject; and

89

     (f)6. State the names, relationships, and addresses of the

90

persons listed in paragraph (2)(b), so far as is known name of

91

the proposed guardian advocate, the relationship of that person

92

to the person with developmental disabilities, and the reason why

93

this person should be appointed. If a willing and qualified

94

guardian advocate cannot be located, the petition shall so state.

95

     (4)(c) NOTICE.--

96

     (a)1. Notice of the filing of the petition must shall be

97

given to the person with developmental disabilities, both

98

verbally and in writing, in the language of the person and in

99

English individual and his or her parent or parents. The notice

100

shall be given both verbally and in writing in the language of

101

the person and in English. Notice must shall also be given to the

102

persons listed in subparagraphs (2)(b)1.-6. and to such other

103

persons as the court may direct. A copy of the petition to

104

appoint a guardian advocate must shall be served with the notice.

105

     (b)2. The notice must shall state that a hearing will be

106

held shall be set to inquire into the capacity of the person with

107

developmental disabilities to exercise the rights enumerated in

108

the petition. The notice must shall also state the date of the

109

hearing on the petition.

110

     (c)3. The notice must shall state that the person

111

individual with developmental disabilities has the right to be

112

represented by counsel of his or her own choice and that if the

113

person individual cannot afford an attorney, the court shall

114

appoint one.

115

     (5)(d) COUNSEL.--The court shall appoint an attorney to

116

represent a person with developmental disabilities who is the

117

subject of a petition to appoint a guardian advocate. The person

118

with developmental disabilities may substitute his or her own

119

attorney for the attorney appointed by the court.

120

     (a) If the court appoints the attorney:

121

     1. The court shall appoint the office of criminal conflict

122

and civil regional counsel or a private attorney as prescribed in

123

s. 27.511(6). A private attorney shall be selected from the

124

attorney registry compiled pursuant to s. 27.40.

125

     2. The attorney must have completed a minimum of 8 hours of

126

education in guardianship. The court may waive this requirement

127

for an attorney who has served as a court-appointed attorney in

128

guardian advocate proceedings or as an attorney of record for

129

guardian advocates for at least 3 years.

130

     (b) An attorney representing a person with developmental

131

disabilities may not also serve as the guardian advocate of the

132

person, as counsel for the guardian advocate, or as counsel for

133

the person petitioning for the appointment of a guardian

134

advocate.

135

     1. Every person with developmental disabilities who is the

136

subject of a petition to appoint a guardian advocate shall be

137

represented by counsel.

138

     2. Every person with developmental disabilities has the

139

right to be represented by counsel of his or her own choice. If

140

the person cannot afford an attorney, the court shall appoint one

141

to represent the person. The court shall appoint counsel if no

142

appearance has been filed within 10 working days of the hearing.

143

     (6)(e) HEARING.--

144

     (a)1. Upon the filing of the petition to appoint a guardian

145

advocate, the court shall set a date for holding a hearing on

146

upon which the petition shall be heard. The A hearing must on the

147

petition shall be held as soon as practicable after the petition

148

is filed, but a reasonable delay for the purpose of

149

investigation, discovery, or procuring counsel or witnesses may

150

shall be granted.

151

     (b)2. The hearing must be held shall be conducted at the

152

time and place specified in the notice of hearing and must. The

153

hearing shall be conducted in a manner consistent with due

154

process.

155

     (c)3. The person with developmental disabilities individual

156

has the right to be present at the hearing and shall be present

157

unless good cause to exclude the individual can be shown. The

158

person individual has the right to remain silent, to present

159

evidence, to call and cross-examine witnesses, and to have the

160

hearing open or closed, as the person may choose.

161

     (d)4. At the hearing, the court shall receive and consider

162

all reports relevant to the person's disabilities, including, but

163

not limited to, the person's current individual family or

164

individual support plan, the individual education plan, and other

165

professional reports documenting the condition and needs of the

166

person individual.

167

     (e)5. The Florida Evidence Code, chapter 90, applies shall

168

apply at the hearing. The burden of proof must shall be by clear

169

and convincing evidence.

170

     (7)(f) COURT ORDER determining the appointment of a

171

guardian advocate.--If the court finds the person with

172

developmental disabilities requires the appointment of a guardian

173

advocate, the court shall enter a written order appointing the

174

guardian advocate and containing determining the need for a

175

guardian advocate. The written order shall contain the findings

176

of facts and conclusions of law on which the court made its

177

decision, including. The court shall make the following findings:

178

     (a)1. The nature and scope of the person's incapacity;

179

     (b)2. The exact areas in which the individual lacks

180

capacity to make informed decisions about care and treatment

181

services or to meet the essential requirements for his or her

182

physical health and safety;

183

     (c)3. The specific legal disabilities to which the person

184

with developmental disabilities is subject; and

185

     (d) The name of the person selected as guardian advocate

186

and the reasons for the court's selection; and

187

     (e)4. The powers, and duties, and responsibilities of the

188

guardian advocate, including bonding of the guardian advocate, as

189

provided in governed by s. 744.351.

190

     (8)(g) LEGAL RIGHTS.--A person with developmental

191

disabilities for whom a guardian advocate has been appointed

192

retains all legal rights except those that which have been

193

specifically granted to the guardian advocate.

194

     (9)(h) POWERS AND DUTIES of guardian advocate.--A guardian

195

advocate for a person with developmental disabilities has shall

196

be a person or corporation qualified to act as guardian, with the

197

same powers, duties, and responsibilities required of a guardian

198

under chapter 744 or those defined by court order issued under

199

this section. However, a guardian advocate may not be required to

200

file an annual accounting under s. 744.3678 if the court

201

determines that the person with developmental disabilities

202

receives income only from social security benefits and the

203

guardian advocate is the person's representative payee for the

204

benefits.

205

     (10)(3) COURT COSTS.--In all proceedings under this

206

section, no court costs may not shall be charged against the

207

agency.

208

     Section 2.  Paragraph (h) of subsection (3) of section

209

393.13, Florida Statutes, is amended to read:

210

     393.13  Treatment of persons with developmental

211

disabilities.--

212

     (3)  RIGHTS OF ALL PERSONS WITH DEVELOPMENTAL

213

DISABILITIES.--The rights described in this subsection shall

214

apply to all persons with developmental disabilities, whether or

215

not such persons are clients of the agency.

216

     (h)  Persons with developmental disabilities shall have a

217

right to consent to or refuse treatment, subject to the powers of

218

a guardian advocate appointed pursuant to s. 393.12 or a guardian

219

appointed pursuant to provisions of s. 393.12(2)(a) or chapter

220

744.

221

     Section 3.  This act shall take effect July 1, 2008.