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 relating to venue for appointment of guardian
8advocates; providing that the guardian advocate need not
9be represented by an attorney unless required by the court
10or the guardian advocate is delegated certain rights
11regarding property; limiting applicability to certain
12proceedings relating to appointment and supervision of
13guardian advocates; requiring the petition to include the
14relationship of the proposed guardian advocate to certain
15providers; modifying the persons to whom a notice of the
16filing of the petition must be given to include next of
17kin, the health care surrogate designated to execute an
18advance directive, and the agent under durable power of
19attorney; establishing a timeframe for appointment of
20counsel and modifying who may be appointed as counsel to a
21person with a developmental disability; providing
22conditions for the court to appoint attorneys; requiring
23court proceedings and orders to consider advance
24directives for health care and durable powers of attorney;
25requiring the court's order to provide the name and
26reasons for the selection of the guardian advocate;
27providing a process for restoration of rights for the
28person with a developmental disability; providing for the
29petitioner to submit evidentiary support to the court;
30providing for a hearing if no evidentiary support is
31available; amending s. 393.13, F.S.; conforming a cross-
32reference; providing an effective date.
33
34Be It Enacted by the Legislature of the State of Florida:
35
36     Section 1.  Section 393.12, Florida Statutes, is amended to
37read:
38     393.12  Capacity; appointment of guardian advocate.--
39     (1)  CAPACITY.--
40     (a)  The issue of capacity shall be separate and distinct
41from a determination of the appropriateness of admission to
42nonresidential services or residential care for a condition of
43developmental disabilities. A No person with a developmental
44disability may not shall be presumed incapacitated solely by
45reason of his or her acceptance in nonresidential services or
46admission to residential care and may not; nor shall any such
47person be denied the full exercise of all legal rights
48guaranteed to citizens of this state and of the United States.
49     (b)  The determination of incapacity issue of capacity of a
50person with a developmental disability and the appointment of a
51guardian must be conducted disabilities shall be determined in a
52separate proceeding according to the procedures and requirements
53of chapter 744 and the Florida Probate Rules.
54     (2)  APPOINTMENT OF A GUARDIAN ADVOCATE.--
55     (a)  Conditions.--A circuit probate court may appoint a
56guardian advocate, without an adjudication of incapacity, for a
57person with developmental disabilities, if the person lacks the
58decisionmaking ability capacity to do some, but not all, of the
59decisionmaking tasks necessary to care for his or her person or,
60property, or estate or if the person has voluntarily petitioned
61for the appointment of a guardian advocate. Except as otherwise
62specified, the proceeding shall be governed by the Florida Rules
63of Probate Civil Procedure.
64     (b)  A person who is being considered for appointment or is
65appointed as a guardian advocate need not be represented by an
66attorney unless required by the court or if the guardian
67advocate is delegated any rights regarding property other than
68the right to be the representative payee for government
69benefits. This paragraph applies only to proceedings relating to
70the appointment of a guardian advocate and the court's
71supervision of a guardian advocate and is not an exercise of the
72Legislature's authority pursuant to s. (2)(a), Art. V of the
73State Constitution.
74     (3)(b)  PETITION.--A petition to appoint a guardian
75advocate for a person with a developmental disability may be
76executed by an adult person who is a resident of this state. The
77petition must shall be verified and must shall:
78     (a)1.  State the name, age, and present address of the
79petitioner and his or her relationship to the person with a
80developmental disability disabilities;
81     (b)2.  State the name, age, county of residence, and
82present address of the person with a developmental disability
83disabilities;
84     (c)3.  Allege that the petitioner believes that the person
85needs a guardian advocate and specify the factual information on
86which such belief is based;
87     (d)4.  Specify the exact areas in which the person lacks
88the decisionmaking ability capacity to make informed decisions
89about his or her care and treatment services or to meet the
90essential requirements for his or her physical health or safety;
91     (e)5.  Specify the legal disabilities to which the person
92is subject; and
93     (f)6.  State the name of the proposed guardian advocate,
94the relationship of that person to the person with a
95developmental disability; the relationship that the proposed
96guardian advocate had or has with a provider of health care
97services, residential services, or other services to the person
98with a developmental disability; disabilities, and the reason
99why this person should be appointed. If a willing and qualified
100guardian advocate cannot be located, the petition shall so
101state.
102     (4)(c)  NOTICE.--
103     (a)1.  Notice of the filing of the petition must shall be
104given to the person with a developmental disability, individual
105and his or her parent or parents. The notice shall be given both
106verbally and in writing in the language of the person and in
107English. Notice must shall also be given to the next of kin of
108the person with a developmental disability as defined in chapter
109744, any health care surrogate designated for the person with a
110developmental disability pursuant to an advance directive under
111chapter 765, any agent designated for the person with a
112developmental disability under a durable power of attorney, and
113such other persons as the court may direct. A copy of the
114petition to appoint a guardian advocate must shall be served
115with the notice.
116     (b)2.  The notice must shall state that a hearing will be
117held shall be set to inquire into the capacity of the person
118with a developmental disability disabilities to exercise the
119rights enumerated in the petition. The notice must shall also
120state the date of the hearing on the petition.
121     (c)3.  The notice shall state that the person with a
122developmental disability individual with developmental
123disabilities has the right to be represented by counsel of his
124or her own choice and that if the person individual cannot
125afford an attorney, the court shall appoint one.
126     (5)(d)  COUNSEL.--Within 3 days after a petition has been
127filed, the court shall appoint an attorney to represent a person
128with a developmental disability who is the subject of a petition
129to appoint a guardian advocate. The person with a developmental
130disability may substitute his or her own attorney for the
131attorney appointed by the court.
132     (a)  If the court appoints the attorney:
133     1.  The court shall appoint a private attorney who shall be
134selected from the attorney registry compiled pursuant to s.
13527.40.
136     2.  The attorney must have completed a minimum of 8 hours
137of education in guardianship. The court may waive this
138requirement for an attorney who has served as a court-appointed
139attorney in guardian advocate proceedings or as an attorney of
140record for guardian advocates for at least 3 years.
141     (b)  An attorney representing a person with a developmental
142disability may not also serve as the guardian advocate of the
143person, as counsel for the guardian advocate, or as counsel for
144the person petitioning for the appointment of a guardian
145advocate.
146     1.  Every person with developmental disabilities who is the
147subject of a petition to appoint a guardian advocate shall be
148represented by counsel.
149     2.  Every person with developmental disabilities has the
150right to be represented by counsel of his or her own choice. If
151the person cannot afford an attorney, the court shall appoint
152one to represent the person. The court shall appoint counsel if
153no appearance has been filed within 10 working days of the
154hearing.
155     (6)(e)  HEARING.--
156     (a)1.  Upon the filing of the petition to appoint a
157guardian advocate, the court shall set a date for holding a
158hearing on upon which the petition shall be heard. The A hearing
159must on the petition shall be held as soon as practicable after
160the petition is filed, but reasonable delay for the purpose of
161investigation, discovery, or procuring counsel or witnesses may
162shall be granted.
163     (b)2.  The hearing must be held shall be conducted at the
164time and place specified in the notice of hearing and must. The
165hearing shall be conducted in a manner consistent with due
166process.
167     (c)3.  The person with a developmental disability
168individual has the right to be present at the hearing and shall
169be present unless good cause to exclude the individual can be
170shown. The person individual has the right to remain silent, to
171present evidence, to call and cross-examine witnesses, and to
172have the hearing open or closed, as the person may choose.
173     (d)4.  At the hearing, the court shall receive and consider
174all reports relevant to the person's disability disabilities,
175including, but not limited to, the person's current individual
176family or individual support plan, the individual education
177plan, and other professional reports documenting the condition
178and needs of the person individual.
179     (e)5.  The Florida Evidence Code, chapter 90, applies shall
180apply at the hearing. The burden of proof must shall be by clear
181and convincing evidence.
182     (7)  ADVANCE DIRECTIVES FOR HEALTH CARE AND DURABLE POWER
183OF ATTORNEY.--In each proceeding in which a guardian advocate is
184appointed under this section, the court shall determine whether
185the person with a developmental disability has executed any
186valid advance directive under chapter 765 or a durable power of
187attorney under chapter 709.
188     (a)  If the person with a developmental disability has
189executed an advance directive or durable power of attorney, the
190court must consider and find whether the documents will
191sufficiently address the needs of the person with a
192developmental disability for whom the guardian advocate is
193sought. A guardian advocate may not be appointed if the court
194finds that the advance directive or durable power of attorney
195provides an alternative to the appointment of a guardian
196advocate which will sufficiently address the needs of the person
197with a developmental disability.
198     (b)  If an interested person seeks to contest an advance
199directive or durable power of attorney executed by a person with
200a developmental disability, the interested person shall file a
201verified statement. The verified statement shall include the
202factual basis for the belief that the advance directive or
203durable power of attorney is invalid or does not sufficiently
204address the needs of the person for whom a guardian advocate is
205sought or that the person with authority under the advance
206directive or durable power of attorney is abusing his or her
207power.
208     (c)  If an advance directive exists, the court shall
209specify in its order and letters of guardian advocacy what
210authority, if any, the guardian advocate shall exercise over the
211person's health care surrogate. Pursuant to the grounds listed
212in s. 765.105, the court, upon its own motion, may, with notice
213to the health care surrogate and any other appropriate parties,
214modify or revoke the authority of the health care surrogate to
215make health care decisions for the person with a developmental
216disability. For purposes of this section, the term "health care
217decision" has the same meaning as in s. 765.101.
218     (d)  If any durable power of attorney exists, the court
219shall specify in its order and letters of guardian advocacy what
220powers of the agent, if any, are suspended and granted to the
221guardian advocate. The court, however, may not suspend any
222powers of the agent unless the court determines the durable
223power of attorney is invalid or there is an abuse by the agent
224of the powers granted.
225     (8)(f)  COURT ORDER determining the appointment of a
226guardian advocate.--If the court finds the person with a
227developmental disability disabilities requires the appointment
228of a guardian advocate, the court shall enter a written order
229appointing the guardian advocate and containing determining the
230need for a guardian advocate. The written order shall contain
231the findings of facts and conclusions of law on which the court
232made its decision, including. The court shall make the following
233findings:
234     (a)1.  The nature and scope of the person's lack of
235decisionmaking ability incapacity;
236     (b)2.  The exact areas in which the individual lacks
237decisionmaking ability capacity to make informed decisions about
238care and treatment services or to meet the essential
239requirements for his or her physical health and safety;
240     (c)3.  The specific legal disabilities to which the person
241with developmental disability disabilities is subject; and
242     (d)  The name of the person selected as guardian advocate
243and the reasons for the court's selection; and
244     (e)4.  The powers, and duties, and responsibilities of the
245guardian advocate, including bonding of the guardian advocate,
246as provided in governed by s. 744.351.
247     (9)(g)  LEGAL RIGHTS.--A person with a developmental
248disability disabilities for whom a guardian advocate has been
249appointed retains all legal rights except those that which have
250been specifically granted to the guardian advocate.
251     (10)(h)  POWERS AND DUTIES OF GUARDIAN ADVOCATE.--A
252guardian advocate for a person with a developmental disability
253disabilities shall be a person or corporation qualified to act
254as guardian, with the same powers, duties, and responsibilities
255required of a guardian under chapter 744 or those defined by
256court order under this section. However, a guardian advocate may
257not be required to file an annual accounting under s. 744.3678
258if the court determines that the person with a developmental
259disability disabilities receives income only from Social
260Security benefits and the guardian advocate is the person's
261representative payee for the benefits.
262     (11)(3)  COURT COSTS.--In all proceedings under this
263section, no court costs may not shall be charged against the
264agency.
265     (12)  SUGGESTION OF RESTORATION OF RIGHTS.--Any interested
266person, including the person with a developmental disability,
267may file a suggestion of restoration of rights with the court in
268which the guardian advocacy is pending. The suggestion must
269state that the person with a developmental disability is
270currently capable of exercising some or all of the rights that
271were delegated to the guardian advocate and provide evidentiary
272support for the filing of the suggestion. Evidentiary support
273includes, but is not limited to, a signed statement from a
274medical, psychological, or psychiatric practitioner by whom the
275person with a developmental disability was evaluated and which
276supports the suggestion for the restoration. If the petitioner
277is unable to provide evidentiary support due to the lack of
278access to such information or reports, the petitioner may state
279a good faith basis for the suggestion for the restoration of
280rights without attaching evidentiary support. The court shall
281immediately set a hearing if no evidentiary support is attached
282to inquire of the petitioner and guardian advocate as to the
283reason and enter such orders as are appropriate to secure the
284required documents. The person with a disability and the
285person's attorney shall be provided notice of the hearing.
286     (a)  Within 3 days after the filing of the suggestion,
287counsel shall be appointed for the person with a developmental
288disability as set forth in subsection (5).
289     (b)  The clerk of the court shall immediately send notice
290of the filing of the suggestion to the person with a
291developmental disability, the guardian advocate, the attorney
292for the person with a developmental disability, the attorney for
293the guardian advocate, if any, and any other interested person
294designated by the court. Formal notice shall be served on the
295guardian advocate. Informal notice may be served on other
296persons. Notice need not be served on the person who filed the
297suggestion.
298     (c)  Any objections to the suggestion must be filed within
29920 days after service of the notice. If an objection is timely
300filed, or if the evidentiary support suggests that restoration
301of rights is not appropriate, the court shall set the matter for
302hearing. The hearing shall be conducted as set forth in s.
303744.1095. The court, at the hearing, shall consider all reports
304and testimony relevant to the person's decisionmaking abilities
305at the hearing, including, but not limited to, the person's
306current individual family plan or individual support plan, the
307individual education plan, and other professional reports that
308document the condition and needs of the person.
309     (d)  Notice of the hearing and copies of the objections
310shall be served upon the person with a developmental disability,
311the attorney for the person with a developmental disability, the
312guardian advocate, the attorney for the guardian advocate, the
313next of kin of the person with a developmental disability, and
314any other interested person as directed by the court.
315     (e)  If no objections are filed and the court is satisfied
316with the evidentiary support for restoration, the court shall
317enter an order of restoration of rights which were delegated to
318a guardian advocate and which the person with a developmental
319disability may now exercise.
320     (f)  At the conclusion of a hearing, the court shall enter
321an order denying the suggestion or restoring all or some of the
322rights that were delegated to the guardian advocate. If only
323some rights are restored to the person with a developmental
324disability, the court shall enter amended letters of guardian
325advocacy.
326     (g)  If only some rights are restored to the person with a
327developmental disability, the order must state which rights are
328restored and amended letters of guardian advocacy shall be
329issued by the court. The guardian advocate shall amend the
330current plan as required under chapter 744 if personal rights
331are restored to the person with a developmental disability. The
332guardian advocate shall file a final accounting as required
333under chapter 744 if all property rights are restored to the
334person with a developmental disability. The guardian advocate
335must file the amended plan or final accounting within 60 days
336after the order restoring rights and amended letters of guardian
337advocacy are issued. A copy of the reports shall be served upon
338the person with a developmental disability and the attorney for
339the person with a developmental disability.
340     Section 2.  Paragraph (h) of subsection (3) of section
341393.13, Florida Statutes, is amended to read:
342     393.13  Treatment of persons with developmental
343disabilities.--
344     (3)  RIGHTS OF ALL PERSONS WITH DEVELOPMENTAL
345DISABILITIES.--The rights described in this subsection shall
346apply to all persons with developmental disabilities, whether or
347not such persons are clients of the agency.
348     (h)  Persons with developmental disabilities shall have a
349right to consent to or refuse treatment, subject to the powers
350of a guardian advocate appointed pursuant to s. 393.12 or a
351guardian appointed pursuant to provisions of s. 393.12(2)(a) or
352chapter 744.
353     Section 3.  This act shall take effect July 1, 2008.
354


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