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A bill to be entitled

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An act relating to guardian advocates for persons with

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

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requiring the court to conduct determination of incapacity

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of persons with developmental disabilities and appointment

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of guardian advocates in separate proceedings; revising

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conditions relating to venue for appointment of guardian

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advocates; providing that the guardian advocate need not

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be represented by an attorney unless required by the court

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or the guardian advocate is delegated certain rights

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regarding property; limiting applicability to certain

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proceedings relating to appointment and supervision of

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guardian advocates; requiring the petition to include the

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relationship of the proposed guardian advocate to certain

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providers; modifying the persons to whom a notice of the

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filing of the petition must be given to include next of

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kin, the health care surrogate designated to execute an

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advance directive, and the agent under durable power of

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attorney; establishing a timeframe for appointment of

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counsel and modifying who may be appointed as counsel to a

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person with a developmental disability; providing

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conditions for the court to appoint attorneys; requiring

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court proceedings and orders to consider advance

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directives for health care and durable powers of attorney;

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requiring the court's order to provide the name and

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reasons for the selection of the guardian advocate;

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providing a process for restoration of rights for the

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person with a developmental disability; providing for the

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petitioner to submit evidentiary support to the court;

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providing for a hearing if no evidentiary support is

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available; amending s. 393.13, F.S.; conforming a cross-

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reference; providing an effective date.

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

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

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read:

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     393.12  Capacity; appointment of guardian advocate.--

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     (1)  CAPACITY.--

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

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from a determination of the appropriateness of admission to

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nonresidential services or residential care for a condition of

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developmental disabilities. A No person with a developmental

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disability may not shall be presumed incapacitated solely by

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reason of his or her acceptance in nonresidential services or

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

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person be denied the full exercise of all legal rights guaranteed

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to citizens of this state and of the United States.

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

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person with a developmental disability and the appointment of a

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guardian must be conducted disabilities shall be determined in a

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separate proceeding according to the procedures and requirements

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of chapter 744 and the Florida Probate Rules.

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     (2)  APPOINTMENT OF A GUARDIAN ADVOCATE.--

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

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guardian advocate, without an adjudication of incapacity, for a

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person with developmental disabilities, if the person lacks the

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decisionmaking ability capacity to do some, but not all, of the

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decisionmaking tasks necessary to care for his or her person or,

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property, or estate or if the person has voluntarily petitioned

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for the appointment of a guardian advocate. Except as otherwise

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specified, the proceeding shall be governed by the Florida Rules

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of Probate Civil Procedure.

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     (b) A person who is being considered for appointment or is

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appointed as a guardian advocate need not be represented by an

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attorney unless required by the court or if the guardian advocate

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is delegated any rights regarding property other than the right

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to be the representative payee for government benefits. This

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paragraph applies only to proceedings relating to the appointment

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of a guardian advocate and the court's supervision of a guardian

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advocate and is not an exercise of the Legislature's authority

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pursuant to s. (2)(a), Art. V of the State Constitution.

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

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for a person with a developmental disability may be executed by

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

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must shall be verified and must shall:

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

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petitioner and his or her relationship to the person with a

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developmental disability disabilities;

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

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address of the person with a developmental disability

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disabilities;

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

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needs a guardian advocate and specify the factual information on

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which such belief is based;

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

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decisionmaking ability capacity to make informed decisions about

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his or her care and treatment services or to meet the essential

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requirements for his or her physical health or safety;

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

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subject; and

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     (f)6. State the name of the proposed guardian advocate, the

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relationship of that person to the person with a developmental

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disability; the relationship that the proposed guardian advocate

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had or has with a provider of health care services, residential

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services, or other services to the person with a developmental

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disability; disabilities, and the reason why this person should

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be appointed. If a willing and qualified guardian advocate cannot

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be located, the petition shall so state.

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     (4)(c) NOTICE.--

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

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given to the person with a developmental disability, individual

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and his or her parent or parents. The notice shall be given both

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

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English. Notice must shall also be given to the next of kin of

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the person with a developmental disability as defined in chapter

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744, a health care surrogate designated to execute an advance

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directive under chapter 765, an agent under a durable power of

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attorney, and such other persons as the court may direct. A copy

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of the petition to appoint a guardian advocate must shall be

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served with the notice.

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

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

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a developmental disability disabilities to exercise the rights

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enumerated in the petition. The notice must shall also state the

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date of the hearing on the petition.

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

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developmental disability individual with developmental

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disabilities has the right to be represented by counsel of his or

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her own choice and that if the person individual cannot afford an

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attorney, the court shall appoint one.

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     (5)(d) COUNSEL.--Within 3 days after a petition has been

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filed, the court shall appoint an attorney to represent a person

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with a developmental disability who is the subject of a petition

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to appoint a guardian advocate. The person with a developmental

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disability may substitute his or her own attorney for the

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attorney appointed by the court.

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     (a) If the court appoints the attorney, the attorney must

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have completed a minimum of 8 hours of education in guardianship.

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The court may waive this requirement for an attorney who has

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served as a court-appointed attorney in guardian advocate

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proceedings or as an attorney of record for guardian advocates

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for at least 3 years.

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     (b) An attorney representing a person with a developmental

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disability may not also serve as the guardian advocate of the

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

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the person petitioning for the appointment of a guardian

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advocate.

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     1. Every person with developmental disabilities who is the

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subject of a petition to appoint a guardian advocate shall be

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represented by counsel.

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     2. Every person with developmental disabilities has the

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

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

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

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

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     (6)(e) HEARING.--

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

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

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

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petition shall be held as soon as practicable after the petition

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is filed, but reasonable delay for the purpose of investigation,

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discovery, or procuring counsel or witnesses may shall be

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granted.

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

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

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hearing shall be conducted in a manner consistent with due

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process.

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     (c)3. The person with a developmental disability individual

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

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

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person individual has the right to remain silent, to present

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

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hearing open or closed, as the person may choose.

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

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all reports relevant to the person's disability disabilities,

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including, but not limited to, the person's current individual

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family or individual support plan, the individual education plan,

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and other professional reports documenting the condition and

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needs of the person individual.

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

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

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and convincing evidence.

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     (7) ADVANCE DIRECTIVES FOR HEALTH CARE AND DURABLE POWER OF

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ATTORNEY.--In each proceeding in which a guardian advocate is

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appointed under this section, the court shall determine whether

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the person with a developmental disability has executed any valid

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advance directive under chapter 765 or a durable power of

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attorney under chapter 709.

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     (a) If the person with a developmental disability has

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executed an advance directive or durable power of attorney, the

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court must consider and find whether the documents will

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sufficiently address the needs of the person with a developmental

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disability for whom the guardian advocate is sought. A guardian

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advocate may not be appointed if the court finds that the advance

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directive or durable power of attorney provides an alternative to

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the appointment of a guardian advocate which will sufficiently

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address the needs of the person with a developmental disability.

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     (b) If an interested person seeks to contest an advance

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directive or durable power of attorney executed by a person with

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a developmental disability, the interested person shall file a

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verified statement. The verified statement shall include the

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factual basis for the belief that the advance directive or

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durable power of attorney is invalid or does not sufficiently

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address the needs of the person for whom a guardian advocate is

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sought or that the person with authority under the advance

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directive or durable power of attorney is abusing his or her

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power.

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     (c) If an advance directive exists, the court shall specify

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in its order and letters of guardian advocacy what authority, if

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any, the guardian advocate shall exercise over the person's

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health care surrogate. Pursuant to the grounds listed in s.

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765.105, the court, upon its own motion, may, with notice to the

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health care surrogate and any other appropriate parties, modify

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or revoke the authority of the health care surrogate to make

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health care decisions for the person with a developmental

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disability. For purposes of this section, the term "health care

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decision" has the same meaning as in s. 765.101.

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     (d) If any durable power of attorney exists, the court

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shall specify in its order and letters of guardian advocacy what

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powers of the agent, if any, are suspended and granted to the

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guardian advocate. The court, however, may not suspend any powers

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of the agent unless the court determines the durable power of

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attorney is invalid or there is an abuse by the agent of the

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powers granted.

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

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

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developmental disability disabilities requires the appointment of

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a guardian advocate, the court shall enter a written order

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appointing the guardian advocate and containing determining the

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need for a guardian advocate. The written order shall contain the

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

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its decision, including. The court shall make the following

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findings:

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

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decisionmaking ability incapacity;

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

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decisionmaking ability capacity to make informed decisions about

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care and treatment services or to meet the essential requirements

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for his or her physical health and safety;

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

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with developmental disability disabilities is subject; and

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

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and the reasons for the court's selection; and

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

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guardian advocate, including bonding of the guardian advocate, as

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provided in governed by s. 744.351.

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     (9)(g) LEGAL RIGHTS.--A person with a developmental

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disability disabilities for whom a guardian advocate has been

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appointed retains all legal rights except those that which have

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been specifically granted to the guardian advocate.

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     (10)(h) POWERS AND DUTIES OF GUARDIAN ADVOCATE.--A guardian

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advocate for a person with a developmental disability

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disabilities shall be a person or corporation qualified to act as

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guardian, with the same powers, duties, and responsibilities

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required of a guardian under chapter 744 or those defined by

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court order under this section. However, a guardian advocate may

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not be required to file an annual accounting under s. 744.3678 if

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the court determines that the person with a developmental

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disability disabilities receives income only from Social Security

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benefits and the guardian advocate is the person's representative

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payee for the benefits.

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

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

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agency.

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     (12) SUGGESTION OF RESTORATION OF RIGHTS.--Any interested

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person, including the person with a developmental disability, may

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file a suggestion of restoration of rights with the court in

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which the guardian advocacy is pending. The suggestion must state

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that the person with a developmental disability is currently

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capable of exercising some or all of the rights that were

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delegated to the guardian advocate and provide evidentiary

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support for the filing of the suggestion. Evidentiary support

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includes, but is not limited to, a signed statement from a

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medical, psychological, or psychiatric practitioner by whom the

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person with a developmental disability was evaluated and which

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supports the suggestion for the restoration. If the petitioner is

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unable to provide evidentiary support due to the lack of access

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to such information or reports, the petitioner may state a good

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faith basis for the suggestion for the restoration of rights

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without attaching evidentiary support. The court shall

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immediately set a hearing if no evidentiary support is attached

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to inquire of the petitioner and guardian advocate as to the

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reason and enter such orders as are appropriate to secure the

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required documents. The person with a disability and the person's

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attorney shall be provided notice of the hearing.

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     (a) Within 3 days after the filing of the suggestion,

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counsel shall be appointed for the person with a developmental

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disability as set forth in subsection (5).

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     (b) The clerk of the court shall immediately send notice of

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the filing of the suggestion to the person with a developmental

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disability, the guardian advocate, the attorney for the person

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with a developmental disability, the attorney for the guardian

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advocate, if any, and any other interested person designated by

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the court. Formal notice shall be served on the guardian

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advocate. Informal notice may be served on other persons. Notice

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need not be served on the person who filed the suggestion.

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     (c) Any objections to the suggestion must be filed within

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20 days after service of the notice. If an objection is timely

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filed, or if the evidentiary support suggests that restoration of

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rights is not appropriate, the court shall set the matter for

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hearing. The hearing shall be conducted as set forth in s.

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744.1095. The court, at the hearing, shall consider all reports

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and testimony relevant to the person's decisionmaking abilities

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at the hearing, including, but not limited to, the person's

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current individual family plan or individual support plan, the

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individual education plan, and other professional reports that

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document the condition and needs of the person.

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     (d) Notice of the hearing and copies of the objections

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shall be served upon the person with a developmental disability,

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the attorney for the person with a developmental disability, the

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guardian advocate, the attorney for the guardian advocate, the

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next of kin of the person with a developmental disability, and

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any other interested person as directed by the court.

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     (e) If no objections are filed and the court is satisfied

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with the evidentiary support for restoration, the court shall

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enter an order of restoration of rights which were delegated to a

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guardian advocate and which the person with a developmental

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disability may now exercise.

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     (f) At the conclusion of a hearing, the court shall enter

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an order denying the suggestion or restoring all or some of the

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rights that were delegated to the guardian advocate. If only some

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rights are restored to the person with a developmental

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disability, the court shall enter amended letters of guardian

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advocacy.

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     (g) If only some rights are restored to the person with a

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developmental disability, the order must state which rights are

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restored and amended letters of guardian advocacy shall be issued

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by the court. The guardian advocate shall amend the current plan

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as required under chapter 744 if personal rights are restored to

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the person with a developmental disability. The guardian advocate

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shall file a final accounting as required under chapter 744 if

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all property rights are restored to the person with a

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developmental disability. The guardian advocate must file the

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amended plan or final accounting within 60 days after the order

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restoring rights and amended letters of guardian advocacy are

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issued. A copy of the reports shall be served upon the person

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with a developmental disability and the attorney for the person

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with a developmental disability.

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

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393.13, Florida Statutes, is amended to read:

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     393.13  Treatment of persons with developmental

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disabilities.--

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     (3)  RIGHTS OF ALL PERSONS WITH DEVELOPMENTAL

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DISABILITIES.--The rights described in this subsection shall

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apply to all persons with developmental disabilities, whether or

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not such persons are clients of the agency.

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     (h)  Persons with developmental disabilities shall have a

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

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

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

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744.

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