CS/HB 739

1
A bill to be entitled
2An act relating to guardian advocates for persons with
3developmental disabilities; amending s. 393.12, F.S.;
4requiring the court to conduct determination of incapacity
5of persons with developmental disabilities and appointment
6of guardian advocates in separate proceedings; revising
7conditions for appointment of guardian advocates;
8requiring the court to appoint guardian advocates in
9accordance with s. 744.312, F.S.; providing that the
10guardian advocate need not be represented by an attorney
11unless required by the court or the guardian advocate is
12delegated certain rights regarding property; requiring the
13petition to include the relationship of the proposed
14guardian advocate to certain providers; modifying the
15persons to whom a notice of the filing of the petition
16must be given to include next of kin, the health care
17surrogate designated to execute an advance directive, and
18the agent under durable power of attorney; establishing a
19timeframe for appointment of counsel and modifying who may
20be appointed as counsel to a person with a developmental
21disability; providing conditions for the court to appoint
22attorneys; requiring court proceedings and orders to
23consider advance directives for health care and durable
24powers of attorney; requiring the court's order to provide
25the name and reasons for the selection of the guardian
26advocate; providing a process for restoration of rights
27for the person with a developmental disability; amending
28s. 393.13, F.S.; conforming a cross-reference; providing
29an effective date.
30
31Be It Enacted by the Legislature of the State of Florida:
32
33     Section 1.  Section 393.12, Florida Statutes, is amended to
34read:
35     393.12  Capacity; appointment of guardian advocate.--
36     (1)  CAPACITY.--
37     (a)  The issue of capacity shall be separate and distinct
38from a determination of the appropriateness of admission to
39nonresidential services or residential care for a condition of
40developmental disabilities. A No person with a developmental
41disability may not shall be presumed incapacitated solely by
42reason of his or her acceptance in nonresidential services or
43admission to residential care and may not; nor shall any such
44person be denied the full exercise of all legal rights
45guaranteed to citizens of this state and of the United States.
46     (b)  The determination of incapacity issue of capacity of a
47person with a developmental disability and the appointment of a
48guardian must be conducted disabilities shall be determined in a
49separate proceeding according to the procedures and requirements
50of chapter 744 and the Florida Probate Rules.
51     (2)  APPOINTMENT OF A GUARDIAN ADVOCATE.--
52     (a)  Conditions.--A circuit probate court may appoint a
53guardian advocate, without an adjudication of incapacity, for a
54person with a developmental disability disabilities, if the
55person lacks the decisionmaking ability capacity to do some, but
56not all, of the decisionmaking tasks necessary to care for his
57or her person or, property, or estate or if the person has
58voluntarily petitioned for the appointment of a guardian
59advocate. The court may not appoint a guardian advocate if there
60are competing petitions for appointment of the guardian advocate
61under this section. Such petitions shall be considered under
62chapter 744. Except as otherwise specified, the proceeding shall
63be governed by the Florida Probate Rules of Civil Procedure.
64     (b)  The appointment of a guardian advocate shall be made
65by the court in accordance with s. 744.312.
66     (c)  A person who is being considered for appointment or is
67appointed as a guardian advocate need not be represented by an
68attorney unless required by the court or if the guardian
69advocate is delegated any rights regarding property other than
70the right to be the representative payee for government
71benefits.
72     (3)(b)  PETITION.--A petition to appoint a guardian
73advocate for a person with a developmental disability may be
74executed by an adult person who is a resident of this state. The
75petition must shall be verified and must shall:
76     (a)1.  State the name, age, and present address of the
77petitioner and his or her relationship to the person with a
78developmental disability disabilities;
79     (b)2.  State the name, age, county of residence, and
80present address of the person with a developmental disability
81disabilities;
82     (c)3.  Allege that the petitioner believes that the person
83needs a guardian advocate and specify the factual information on
84which such belief is based;
85     (d)4.  Specify the exact areas in which the person lacks
86the decisionmaking ability capacity to make informed decisions
87about his or her care and treatment services or to meet the
88essential requirements for his or her physical health or safety;
89     (e)5.  Specify the legal disabilities to which the person
90is subject; and
91     (f)6.  State the name of the proposed guardian advocate;,
92the relationship of that person to the person with a
93developmental disability; the relationship the proposed guardian
94advocate had or has with a provider of health care services,
95residential services, or other services to the person with a
96developmental disability; disabilities, and the reason why this
97person should be appointed. If a willing and qualified guardian
98advocate cannot be located, the petition shall so state.
99     (4)(c)  NOTICE.--
100     (a)1.  Notice of the filing of the petition must shall be
101given to the person with a developmental disability, individual
102and his or her parent or parents. The notice shall be given both
103verbally and in writing, in the language of the person and in
104English. Notice must shall also be given to the next of kin of
105the person with a developmental disability as defined in chapter
106744, a health care surrogate designated to execute an advance
107directive under chapter 765, an agent under a durable power of
108attorney, and such other persons as the court may direct. A copy
109of the petition to appoint a guardian advocate must shall be
110served with the notice.
111     (b)2.  The notice must shall state that a hearing will be
112held shall be set to inquire into the capacity of the person
113with a developmental disability disabilities to exercise the
114rights enumerated in the petition. The notice must shall also
115state the date of the hearing on the petition.
116     (c)3.  The notice must shall state that the person with a
117developmental disability individual with developmental
118disabilities has the right to be represented by counsel of his
119or her own choice and that if the person individual cannot
120afford an attorney, the court shall appoint one.
121     (5)(d)  COUNSEL.--Within 3 days after a petition has been
122filed, the court shall appoint an attorney to represent a person
123with a developmental disability who is the subject of a petition
124to appoint a guardian advocate. The person with a developmental
125disability may substitute his or her own attorney for the
126attorney appointed by the court.
127     (a)  If the court appoints the attorney:
128     1.  The court shall appoint the office of criminal conflict
129and civil regional counsel or a private attorney as prescribed
130in s. 27.511(6). A private attorney shall be selected from the
131attorney registry compiled pursuant to s. 27.40.
132     2.  The attorney must have completed a minimum of 8 hours
133of education in guardianship. The court may waive this
134requirement for an attorney who has served as a court-appointed
135attorney in guardian advocate proceedings or as an attorney of
136record for guardian advocates for at least 3 years.
137     (b)  An attorney representing a person with a developmental
138disability may not also serve as the guardian advocate of the
139person, as counsel for the guardian advocate, or as counsel for
140the person petitioning for the appointment of a guardian
141advocate.
142     1.  Every person with developmental disabilities who is the
143subject of a petition to appoint a guardian advocate shall be
144represented by counsel.
145     2.  Every person with developmental disabilities has the
146right to be represented by counsel of his or her own choice. If
147the person cannot afford an attorney, the court shall appoint
148one to represent the person. The court shall appoint counsel if
149no appearance has been filed within 10 working days of the
150hearing.
151     (6)(e)  HEARING.--
152     (a)1.  Upon the filing of the petition to appoint a
153guardian advocate, the court shall set a date for holding a
154hearing on upon which the petition shall be heard. The A hearing
155must on the petition shall be held as soon as practicable after
156the petition is filed, but a reasonable delay for the purpose of
157investigation, discovery, or procuring counsel or witnesses may
158shall be granted.
159     (b)2.  The hearing must be held shall be conducted at the
160time and place specified in the notice of hearing and must. The
161hearing shall be conducted in a manner consistent with due
162process.
163     (c)3.  The person with a developmental disability
164individual has the right to be present at the hearing and shall
165be present unless good cause to exclude the individual can be
166shown. The person individual has the right to remain silent, to
167present evidence, to call and cross-examine witnesses, and to
168have the hearing open or closed, as the person may choose.
169     (d)4.  At the hearing, the court shall receive and consider
170all reports relevant to the person's disability disabilities,
171including, but not limited to, the person's current individual
172family or individual support plan, the individual education
173plan, and other professional reports documenting the condition
174and needs of the person individual.
175     (e)5.  The Florida Evidence Code, chapter 90, applies shall
176apply at the hearing. The burden of proof must shall be by clear
177and convincing evidence.
178     (7)  ADVANCE DIRECTIVES FOR HEALTH CARE AND DURABLE POWER
179OF ATTORNEY.--In each proceeding in which a guardian advocate is
180appointed under this section, the court shall determine whether
181the person with a developmental disability has executed any
182valid advance directive under chapter 765 or a durable power of
183attorney under chapter 709.
184     (a)  In the event that the person with a developmental
185disability has executed an advance directive or durable power of
186attorney, the court must consider and find whether the documents
187will sufficiently address the needs of the person with a
188developmental disability for whom the guardian advocate is
189sought. A guardian advocate may not be appointed if the court
190finds that the advance directive or durable power of attorney
191provides an alternative to the appointment of a guardian
192advocate that will sufficiently address the needs of the person
193with a developmental disability.
194     (b)  If an interested person seeks to contest an advance
195directive or durable power of attorney executed by a person with
196a developmental disability, the interested person shall file a
197verified statement. The verified statement shall include the
198factual basis for the belief that the advance directive or
199durable power of attorney is invalid or does not sufficiently
200address the needs of the person for whom a guardian advocate is
201sought or that the person with authority under the advance
202directive or durable power of attorney is abusing his or her
203power.
204     (c)  If an advance directive exists, the court shall
205specify in its order and letters of guardian advocacy what
206authority, if any, the guardian advocate shall exercise over the
207person's health care surrogate designated under chapter 765.
208Pursuant to the grounds listed in s. 765.105, the court, upon
209its own motion, may, with notice to the health care surrogate
210and any other appropriate parties, modify or revoke the
211authority of the health care surrogate to make health care
212decisions for the person with a developmental disability. For
213purposes of this section, the term "health care decision" has
214the same meaning as in s. 765.101.
215     (d)  If any durable power of attorney exists, the court
216shall specify in its order and letters of guardian advocacy what
217powers of the agent, if any, are suspended and granted to the
218guardian advocate. The court, however, may not suspend any
219powers of the agent unless the court determines the durable
220power of attorney is invalid or there is an abuse by the agent
221of the powers granted.
222     (8)(f)  COURT ORDER determining the appointment of a
223guardian advocate.--If the court finds the person with a
224developmental disability disabilities requires the appointment
225of a guardian advocate, the court shall enter a written order
226appointing the guardian advocate and containing determining the
227need for a guardian advocate. The written order shall contain
228the findings of facts and conclusions of law on which the court
229made its decision, including. The court shall make the following
230findings:
231     (a)1.  The nature and scope of the person's lack of
232decisionmaking ability incapacity;
233     (b)2.  The exact areas in which the individual lacks
234decisionmaking ability capacity to make informed decisions about
235care and treatment services or to meet the essential
236requirements for his or her physical health and safety;
237     (c)3.  The specific legal disabilities to which the person
238with a developmental disability disabilities is subject; and
239     (d)  The name of the person selected as guardian advocate
240and the reasons for the court's selection; and
241     (e)4.  The powers, and duties, and responsibilities of the
242guardian advocate, including bonding of the guardian advocate,
243as provided in governed by s. 744.351.
244     (9)(g)  LEGAL RIGHTS.--A person with a developmental
245disability disabilities for whom a guardian advocate has been
246appointed retains all legal rights except those that which have
247been specifically granted to the guardian advocate.
248     (10)(h)  POWERS AND DUTIES OF GUARDIAN ADVOCATE.--A
249guardian advocate for a person with a developmental disability
250disabilities shall be a person or corporation qualified to act
251as guardian, with the same powers, duties, and responsibilities
252required of a guardian under chapter 744 or those defined by
253court order under this section. However, a guardian advocate may
254not be required to file an annual accounting under s. 744.3678
255if the court determines that the person with a developmental
256disability disabilities receives income only from social
257security benefits and the guardian advocate is the person's
258representative payee for the benefits.
259     (11)(3)  COURT COSTS.--In all proceedings under this
260section, no court costs may not shall be charged against the
261agency.
262     (12)  SUGGESTION OF RESTORATION OF RIGHTS.--Any interested
263person, including the person with a developmental disability,
264may file a suggestion of restoration of rights with the court in
265which the guardian advocacy is pending. The suggestion must
266state that the person with a developmental disability is
267currently capable of exercising some or all of the rights that
268were delegated to the guardian advocate.
269     (a)  Within 3 days after the filing of the suggestion,
270counsel shall be appointed for the person with a developmental
271disability as set forth in subsection (5).
272     (b)  Upon the filing of the suggestion, the court shall
273immediately provide for the examination of the person with a
274developmental disability by a physician, psychologist,
275psychiatrist, gerontologist, registered nurse, or licensed
276social worker familiar with the developmental disability. The
277report of the examination of the person with a developmental
278disability shall be filed with the court within 20 days after
279the examination is ordered.
280     (c)  The court shall immediately send notice of the filing
281of the suggestion to the person with a developmental disability,
282the guardian advocate, the attorney for the person with a
283developmental disability, the attorney for the guardian
284advocate, and any other interested person designated by the
285court. Formal notice shall be served on the guardian advocate.
286Informal notice may be served on other persons. Notice need not
287be served on the person who filed the suggestion.
288     (d)  Any objections to the suggestion must be filed within
28920 days after service of the notice. If an objection is timely
290filed, or if the examination suggests that restoration of rights
291is not appropriate, the court shall set the matter for hearing.
292The hearing shall be conducted as set forth in s. 744.1095. The
293court shall consider all reports and testimony relevant to the
294person's decisionmaking abilities at the hearing, including, but
295not limited to, the person's current individual family plan or
296individual support plan, the individual education plan, and
297other professional reports that document the condition and needs
298of the person.
299     (e)  Notice of the hearing and copies of the objections
300shall be served upon the person with a developmental disability,
301the attorney for the person with a developmental disability, the
302guardian advocate, the attorney for the guardian advocate, the
303next of kin of the person with a developmental disability, and
304any other interested person as directed by the court.
305     (f)  The examination reports shall be served upon the
306person with a developmental disability, the guardian advocate,
307the attorney for the person with a developmental disability, the
308attorney for the guardian advocate, and any other interested
309person as directed by the court.
310     (g)  If no objections are filed and the court is satisfied
311with the examination report, the court shall enter an order of
312restoration of rights which were delegated to a guardian
313advocate and which the person with a developmental disability
314may now exercise. The order must be issued within 30 days after
315the medical report is filed.
316     (h)  At the conclusion of a hearing, the court shall enter
317an order either denying the suggestion or restoring all or some
318of the rights that were delegated to the guardian advocate. If
319only some rights are restored to the person with a developmental
320disability, the court shall enter amended letters of guardian
321advocacy.
322     (i)  If only some rights are restored to the person with a
323developmental disability, the order must state which rights are
324restored and amended letters of guardian advocacy shall be
325issued by the court. The guardian advocate shall amend the
326current plan as required under chapter 744 if personal rights
327are restored to the person with a developmental disability. The
328guardian advocate shall file a final accounting as required
329under chapter 744 if all property rights are restored to the
330person with a developmental disability. The guardian advocate
331must file the amended plan or final accounting within 60 days
332after the order restoring rights and amended letters of guardian
333advocacy are issued. A copy of the reports shall be served upon
334the person with a developmental disability and the attorney for
335the person with a developmental disability.
336     Section 2.  Paragraph (h) of subsection (3) of section
337393.13, Florida Statutes, is amended to read:
338     393.13  Treatment of persons with developmental
339disabilities.--
340     (3)  RIGHTS OF ALL PERSONS WITH DEVELOPMENTAL
341DISABILITIES.--The rights described in this subsection shall
342apply to all persons with developmental disabilities, whether or
343not such persons are clients of the agency.
344     (h)  Persons with developmental disabilities shall have a
345right to consent to or refuse treatment, subject to the powers
346of a guardian advocate appointed pursuant to s. 393.12 or a
347guardian appointed pursuant to provisions of s. 393.12(2)(a) or
348chapter 744.
349     Section 3.  This act shall take effect July 1, 2008.


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