HB 739

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 a list of persons from which the court must
5	select a guardian advocate; providing that the guardian
6	advocate need not be represented by an attorney; revising
7	the requirements for the petition seeking the appointment
8	of a guardian advocate to exclude the name of the proposed
9	guardian advocate; modifying the persons to whom a notice
10	of the filing of the petition must be given to include
11	family members; requiring the court's order to name the
12	guardian advocate and the reasons why the advocate was
13	selected; modifying who may be appointed counsel to a
14	person with developmental disabilities; including the
15	office of criminal conflict and civil regional counsel;
16	revising the powers and duties of the guardian advocate
17	with respect to financial accounting requirements;
18	amending s. 393.13, F.S.; conforming a cross-reference;
19	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
35	guaranteed 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	(2)  APPOINTMENT OF A GUARDIAN ADVOCATE.--
42	(a)  Conditions.--A circuit probate court may appoint a
43	guardian advocate, without an adjudication of incapacity, for a
44	person with developmental disabilities, if the person lacks the
45	capacity to do some, but not all, of the tasks necessary to care
46	for his or her person, property, or estate or if the person has
47	voluntarily petitioned for the appointment of a guardian
48	advocate. Except as otherwise specified, the proceeding shall be
49	governed by the Florida Rules of Civil Procedure.
50	(b)  In selecting a guardian advocate, the court shall give
51	preference to a health care surrogate if one has already been
52	designated by the person. If the person has not previously
53	selected a health care surrogate or except for good cause
54	documented in the court record, the selection must be made from
55	the following persons, if willing and able, in the following
56	order:
57	1.  The person's spouse.
58	2.  An adult child of the person.
59	3.  A parent of the person.
60	4.  An adult sibling of the person.
61	5.  A grandparent of the person.
62	6.  An adult next of kin of the person, other than the
63	persons listed in subparagraphs 1.-5., who has an active
64	relationship with the person.
65	7.  An adult friend of the person.
66	8.  A natural person or corporation qualified to serve as a
67	guardian.
68	(c)  A person being considered for or selected to be a
69	guardian advocate need not be represented by an attorney unless
70	required by the court.
71	(3)(b)  PETITION.--A petition to appoint a guardian
72	advocate for a person with developmental disabilities may be
73	executed by an adult person who is a resident of this state.
74	The petition 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
79	present 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
84	the capacity to make informed decisions about his or her care
85	and treatment services or to meet the essential requirements for
86	his or her physical health or safety;
87	(e)5.  Specify the legal disabilities to which the person
88	is 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
93	why this person should be appointed. If a willing and qualified
94	guardian advocate cannot be located, the petition shall so
95	state.
96	(4)(c)  NOTICE.--
97	(a)1.  Notice of the filing of the petition must shall be
98	given to the person with developmental disabilities, individual
99	and his or her parent or parents. The notice shall be given both
100	verbally and in writing, in the language of the person and in
101	English. Notice must shall also be given to the persons listed
102	in subparagraphs (2)(b)1.-6. and to such other persons as the
103	court may direct. A copy of the petition to appoint a guardian
104	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
107	with developmental disabilities to exercise the rights
108	enumerated in the petition. The notice must shall also state the
109	date of the 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
123	in 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
126	of education in guardianship. The court may waive this
127	requirement for an attorney who has served as a court-appointed
128	attorney in guardian advocate proceedings or as an attorney of
129	record for 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
141	one to represent the person. The court shall appoint counsel if
142	no appearance has been filed within 10 working days of the
143	hearing.
144	(6)(e)  HEARING.--
145	(a)1.  Upon the filing of the petition to appoint a
146	guardian advocate, the court shall set a date for holding a
147	hearing on upon which the petition shall be heard. The A hearing
148	must on the petition shall be held as soon as practicable after
149	the petition is filed, but a reasonable delay for the purpose of
150	investigation, discovery, or procuring counsel or witnesses may
151	shall be granted.
152	(b)2.  The hearing must be held shall be conducted at the
153	time and place specified in the notice of hearing and must. The
154	hearing shall be conducted in a manner consistent with due
155	process.
156	(c)3.  The person with developmental disabilities
157	individual has the right to be present at the hearing and shall
158	be present unless good cause to exclude the individual can be
159	shown. The person individual has the right to remain silent, to
160	present evidence, to call and cross-examine witnesses, and to
161	have the hearing open or closed, as the person may choose.
162	(d)4.  At the hearing, the court shall receive and consider
163	all reports relevant to the person's disabilities, including,
164	but not limited to, the person's current individual family or
165	individual support plan, the individual education plan, and
166	other professional reports documenting the condition and needs
167	of the person individual.
168	(e)5.  The Florida Evidence Code, chapter 90, applies shall
169	apply at the hearing. The burden of proof must shall be by clear
170	and convincing evidence.
171	(7)(f)  COURT ORDER determining the appointment of a
172	guardian advocate.--If the court finds the person with
173	developmental disabilities requires the appointment of a
174	guardian advocate, the court shall enter a written order
175	appointing the guardian advocate and containing determining the
176	need for a guardian advocate.  The written order shall contain
177	the findings of facts and conclusions of law on which the court
178	made its decision, including. The court shall make the following
179	findings:
180	(a)1.  The nature and scope of the person's incapacity;
181	(b)2.  The exact areas in which the individual lacks
182	capacity to make informed decisions about care and treatment
183	services or to meet the essential requirements for his or her
184	physical health and safety;
185	(c)3.  The specific legal disabilities to which the person
186	with developmental disabilities is subject; and
187	(d)  The name of the person selected as guardian advocate
188	and the reasons for the court's selection; and
189	(e)4.  The powers, and duties, and responsibilities of the
190	guardian advocate, including bonding of the guardian advocate,
191	as provided in governed by s. 744.351.
192	(8)(g)  LEGAL RIGHTS.--A person with developmental
193	disabilities for whom a guardian advocate has been appointed
194	retains all legal rights except those that which have been
195	specifically granted to the guardian advocate.
196	(9)(h)  POWERS AND DUTIES of guardian advocate.--A guardian
197	advocate for a person with developmental disabilities has shall
198	be a person or corporation qualified to act as guardian, with
199	the same powers, duties, and responsibilities required of a
200	guardian under chapter 744 or those defined by court order
201	issued under this section. However, a guardian advocate may not
202	be required to file an annual accounting under s. 744.3678 if
203	the court determines that the person with developmental
204	disabilities receives income only from social security benefits
205	and the guardian advocate is the person's representative payee
206	for the benefits.
207	(10)(3)  COURT COSTS.--In all proceedings under this
208	section, no court costs may not shall be charged against the
209	agency.
210	Section 2.  Paragraph (h) of subsection (3) of section
211	393.13, Florida Statutes, is amended to read:
212	393.13  Treatment of persons with developmental
213	disabilities.--
214	(3)  RIGHTS OF ALL PERSONS WITH DEVELOPMENTAL
215	DISABILITIES.--The rights described in this subsection shall
216	apply to all persons with developmental disabilities, whether or
217	not such persons are clients of the agency.
218	(h)  Persons with developmental disabilities shall have a
219	right to consent to or refuse treatment, subject to the powers
220	of a guardian advocate appointed pursuant to s. 393.12 or a
221	guardian appointed pursuant to provisions of s. 393.12(2)(a) or
222	chapter 744.
223	Section 3.  This act shall take effect July 1, 2008.

CODING: Words stricken are deletions; words underlined are additions.