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, a health care surrogate designated pursuant to an advance
110directive under chapter 765, an agent under a durable power of
111attorney, and such other persons as the court may direct. A copy
112of the petition to appoint a guardian advocate must shall be
113served with the notice.
114     (b)2.  The notice must shall state that a hearing will be
115held shall be set to inquire into the capacity of the person
116with a developmental disability disabilities to exercise the
117rights enumerated in the petition. The notice must shall also
118state the date of the hearing on the petition.
119     (c)3.  The notice shall state that the person with a
120developmental disability individual with developmental
121disabilities has the right to be represented by counsel of his
122or her own choice and that if the individual cannot afford an
123attorney, the court shall initially appoint counsel one.
124     (5)(d)  COUNSEL.--Within 3 days after a petition has been
125filed, the court shall appoint an attorney to represent a person
126with a developmental disability who is the subject of a petition
127to appoint a guardian advocate. The person with a developmental
128disability may substitute his or her own attorney for the
129attorney appointed by the court.
130     (a)  The court shall initially appoint a private attorney
131who shall be selected from the attorney registry compiled
132pursuant to s. 27.40. Such attorney must have completed a
133minimum of 8 hours of education in guardianship. The court may
134waive this requirement for an attorney who has served as a
135court-appointed attorney in guardian advocate proceedings or as
136an attorney of record for guardian advocates for at least 3
137years.
138     (b)  An attorney representing a person with a developmental
139disability may not also serve as the guardian advocate of the
140person, as counsel for the guardian advocate, or as counsel for
141the person petitioning for the appointment of a guardian
142advocate.
143     1.  Every person with developmental disabilities who is the
144subject of a petition to appoint a guardian advocate shall be
145represented by counsel.
146     2.  Every person with developmental disabilities has the
147right to be represented by counsel of his or her own choice. If
148the person cannot afford an attorney, the court shall appoint
149one to represent the person. The court shall appoint counsel if
150no appearance has been filed within 10 working days of the
151hearing.
152     (6)(e)  HEARING.--
153     (a)1.  Upon the filing of the petition to appoint a
154guardian advocate, the court shall set a date for holding a
155hearing on upon which the petition shall be heard. The A hearing
156must on the petition shall be held as soon as practicable after
157the petition is filed, but reasonable delay for the purpose of
158investigation, discovery, or procuring counsel or witnesses may
159shall be granted.
160     (b)2.  The hearing must be held shall be conducted at the
161time and place specified in the notice of hearing and must. The
162hearing shall be conducted in a manner consistent with due
163process.
164     (c)3.  The person with a developmental disability
165individual has the right to be present at the hearing and shall
166be present unless good cause to exclude the individual can be
167shown. The person individual has the right to remain silent, to
168present evidence, to call and cross-examine witnesses, and to
169have the hearing open or closed, as the person may choose.
170     (d)4.  At the hearing, the court shall receive and consider
171all reports relevant to the person's disability disabilities,
172including, but not limited to, the person's current individual
173family or individual support plan, the individual education
174plan, and other professional reports documenting the condition
175and needs of the person individual.
176     (e)5.  The Florida Evidence Code, chapter 90, applies shall
177apply at the hearing. The burden of proof must shall be by clear
178and convincing evidence.
179     (7)  ADVANCE DIRECTIVES FOR HEALTH CARE AND DURABLE POWER
180OF ATTORNEY.--In each proceeding in which a guardian advocate is
181appointed under this section, the court shall determine whether
182the person with a developmental disability has executed any
183valid advance directive under chapter 765 or a durable power of
184attorney under chapter 709.
185     (a)  If the person with a developmental disability has
186executed an advance directive or durable power of attorney, the
187court must consider and find whether the documents will
188sufficiently address the needs of the person with a
189developmental disability for whom the guardian advocate is
190sought. A guardian advocate may not be appointed if the court
191finds that the advance directive or durable power of attorney
192provides an alternative to the appointment of a guardian
193advocate which will sufficiently address the needs of the person
194with a developmental disability.
195     (b)  If an interested person seeks to contest an advance
196directive or durable power of attorney executed by a person with
197a developmental disability, the interested person shall file a
198verified statement. The verified statement shall include the
199factual basis for the belief that the advance directive or
200durable power of attorney is invalid or does not sufficiently
201address the needs of the person for whom a guardian advocate is
202sought or that the person with authority under the advance
203directive or durable power of attorney is abusing his or her
204power.
205     (c)  If an advance directive exists, the court shall
206specify in its order and letters of guardian advocacy what
207authority, if any, the guardian advocate shall exercise over the
208person's health care surrogate. Pursuant to the grounds listed
209in s. 765.105, the court, upon its own motion, may, with notice
210to the health care surrogate and any other appropriate parties,
211modify or revoke the authority of the health care surrogate to
212make health care decisions for the person with a developmental
213disability. For purposes of this section, the term "health care
214decision" has the 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 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 and provide evidentiary
269support for the filing of the suggestion. Evidentiary support
270includes, but is not limited to, a signed statement from a
271medical, psychological, or psychiatric practitioner by whom the
272person with a developmental disability was evaluated and which
273supports the suggestion for the restoration. If the petitioner
274is unable to provide evidentiary support due to the lack of
275access to such information or reports, the petitioner may state
276a good faith basis for the suggestion for the restoration of
277rights without attaching evidentiary support. The court shall
278immediately set a hearing if no evidentiary support is attached
279to inquire of the petitioner and guardian advocate as to the
280reason and enter such orders as are appropriate to secure the
281required documents. The person with a disability and the
282person's attorney shall be provided notice of the hearing.
283     (a)  Within 3 days after the filing of the suggestion,
284counsel shall be appointed for the person with a developmental
285disability as set forth in subsection (5).
286     (b)  The clerk of the court shall immediately send notice
287of the filing of the suggestion to the person with a
288developmental disability, the guardian advocate, the attorney
289for the person with a developmental disability, the attorney for
290the guardian advocate, if any, and any other interested person
291designated by the court. Formal notice shall be served on the
292guardian advocate. Informal notice may be served on other
293persons. Notice need not be served on the person who filed the
294suggestion.
295     (c)  Any objections to the suggestion must be filed within
29620 days after service of the notice. If an objection is timely
297filed, or if the evidentiary support suggests that restoration
298of rights is not appropriate, the court shall set the matter for
299hearing. The hearing shall be conducted as set forth in s.
300744.1095. The court, at the hearing, shall consider all reports
301and testimony relevant to the person's decisionmaking abilities
302at the hearing, including, but not limited to, the person's
303current individual family plan or individual support plan, the
304individual education plan, and other professional reports that
305document the condition and needs of the person.
306     (d)  Notice of the hearing and copies of the objections
307shall be served upon the person with a developmental disability,
308the attorney for the person with a developmental disability, the
309guardian advocate, the attorney for the guardian advocate, the
310next of kin of the person with a developmental disability, and
311any other interested person as directed by the court.
312     (e)  If no objections are filed and the court is satisfied
313with the evidentiary support for restoration, the court shall
314enter an order of restoration of rights which were delegated to
315a guardian advocate and which the person with a developmental
316disability may now exercise.
317     (f)  At the conclusion of a hearing, the court shall enter
318an order denying the suggestion or restoring all or some of the
319rights that were delegated to the guardian advocate. If only
320some rights are restored to the person with a developmental
321disability, the court shall enter amended letters of guardian
322advocacy.
323     (g)  If only some rights are restored to the person with a
324developmental disability, the order must state which rights are
325restored and amended letters of guardian advocacy shall be
326issued by the court. The guardian advocate shall amend the
327current plan as required under chapter 744 if personal rights
328are restored to the person with a developmental disability. The
329guardian advocate shall file a final accounting as required
330under chapter 744 if all property rights are restored to the
331person with a developmental disability. The guardian advocate
332must file the amended plan or final accounting within 60 days
333after the order restoring rights and amended letters of guardian
334advocacy are issued. A copy of the reports shall be served upon
335the person with a developmental disability and the attorney for
336the person with a developmental disability.
337     Section 2.  Paragraph (h) of subsection (3) of section
338393.13, Florida Statutes, is amended to read:
339     393.13  Treatment of persons with developmental
340disabilities.--
341     (3)  RIGHTS OF ALL PERSONS WITH DEVELOPMENTAL
342DISABILITIES.--The rights described in this subsection shall
343apply to all persons with developmental disabilities, whether or
344not such persons are clients of the agency.
345     (h)  Persons with developmental disabilities shall have a
346right to consent to or refuse treatment, subject to the powers
347of a guardian advocate appointed pursuant to s. 393.12 or a
348guardian appointed pursuant to provisions of s. 393.12(2)(a) or
349chapter 744.
350     Section 3.  This act shall take effect July 1, 2008.


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