Florida Senate - 2023                                    SB 1098
       
       
        
       By Senator Burton
       
       
       
       
       
       12-00451B-23                                          20231098__
    1                        A bill to be entitled                      
    2         An act relating to withholding or withdrawal of life
    3         prolonging procedures; amending s. 744.3215, F.S.;
    4         authorizing the court to delegate the right to consent
    5         to the withholding or withdrawal of life-prolonging
    6         procedures of incapacitated persons in certain
    7         circumstances; amending ss. 744.363 and 744.3675,
    8         F.S.; making technical changes; requiring initial and
    9         annual guardianship plans, respectively, to state
   10         whether any power under the ward’s preexisting order
   11         not to resuscitate or advance directive is revoked,
   12         modified, suspended, or transferred to the guardian;
   13         requiring such plans to state the date of such action;
   14         establishing certain authority without additional
   15         court approval; requiring a guardian to obtain court
   16         approval to exercise transferred power to execute an
   17         order not to resuscitate or consent to withhold or
   18         withdraw life-prolonging procedures under certain
   19         circumstances; creating s. 744.4431, F.S.; authorizing
   20         a guardian to petition a court for approval to consent
   21         to withhold or withdraw life-prolonging procedures
   22         under certain circumstances; specifying requirements
   23         for the petition; requiring the guardian to serve
   24         certain notices; specifying procedures that must be
   25         followed by the court in acting on the petition;
   26         authorizing the guardian to withhold or withdraw life
   27         prolonging procedures without a hearing or court
   28         approval under certain circumstances; amending s.
   29         744.441, F.S.; making technical changes; deleting
   30         provisions regarding the authority of certain
   31         guardians to sign an order not to resuscitate;
   32         providing an effective date.
   33          
   34  Be It Enacted by the Legislature of the State of Florida:
   35  
   36         Section 1. Paragraph (h) is added to subsection (3) of
   37  section 744.3215, Florida Statutes, to read:
   38         744.3215 Rights of persons determined incapacitated.—
   39         (3) Rights that may be removed from a person by an order
   40  determining incapacity and which may be delegated to the
   41  guardian include the right:
   42         (h) To consent to the withholding or withdrawal of life
   43  prolonging procedures as defined in s. 765.101, subject to court
   44  approval as provided in s. 744.4431 if there is a conflict over
   45  or objection to the proposed exercise of that authority.
   46         Section 2. Present subsections (2) through (6) of section
   47  744.363, Florida Statutes, are redesignated as subsections (3)
   48  through (7), respectively, paragraph (g) is added to subsection
   49  (1) and a new subsection (2) is added to that section, and
   50  paragraph (f) of subsection (1) of that section is amended, to
   51  read:
   52         744.363 Initial guardianship plan.—
   53         (1) The initial guardianship plan shall include all of the
   54  following:
   55         (f)1. A list of any preexisting:
   56         a. Orders not to resuscitate as described in executed under
   57  s. 401.45(3) and the date such orders were signed; or
   58         b.Preexisting Advance directives, as defined in s. 765.101
   59  and, the date such directives were signed. an order or directive
   60  was signed,
   61         2.For each item listed under subparagraph 1., the plan
   62  must state whether the such order or directive has been revoked,
   63  modified, or suspended by the court or the extent to which
   64  authority under an order or directive has been transferred by
   65  the court to the guardian. The plan must also state the date of
   66  such action by the court.
   67         (g), and A description of the steps taken to identify and
   68  locate a the preexisting order not to resuscitate or advance
   69  directive.
   70         (2) A surrogate designated by the ward in an advance
   71  directive or an agent designated by the ward in a durable power
   72  of attorney who retains authority to make health care decisions
   73  under the guardianship plan may exercise retained authority
   74  without additional approval by the court. Any authority of the
   75  surrogate to carry out the instructions in the advance directive
   76  or authority of the agent under a durable power of attorney
   77  which is transferred to the guardian may be exercised by the
   78  guardian, consistent with the advance directive or durable power
   79  of attorney, without additional approval by the court. Any
   80  authority transferred to the guardian to execute an order not to
   81  resuscitate or to consent to withhold or withdraw life
   82  prolonging procedures is subject to court approval pursuant to
   83  s. 744.441 if there is a conflict over or objection to a
   84  proposed exercise of that authority.
   85         Section 3. Present subsections (2), (3), and (4) of section
   86  744.3675, Florida Statutes, are redesignated as subsections (3),
   87  (4), and (5), respectively, paragraph (e) is added to subsection
   88  (1) and a new subsection (2) is added to that section, and
   89  paragraph (d) of subsection (1) of that section is amended, to
   90  read:
   91         744.3675 Annual guardianship plan.—Each guardian of the
   92  person must file with the court an annual guardianship plan
   93  which updates information about the condition of the ward. The
   94  annual plan must specify the current needs of the ward and how
   95  those needs are proposed to be met in the coming year.
   96         (1) Each plan for an adult ward must, if applicable,
   97  include:
   98         (d) 1. A list of any preexisting:
   99         a. Orders not to resuscitate as described in executed under
  100  s. 401.45(3) and the date such orders were signed; or
  101         b.Preexisting Advance directives, as defined in s. 765.101
  102  and, the date such directives were signed. an order or directive
  103  was signed,
  104         2.For each item listed under subparagraph 1., the plan
  105  must state whether the such order or directive has been revoked,
  106  modified, or suspended by the court or the extent to which
  107  authority under an order or directive has been transferred by
  108  the court to the guardian. The plan must also state the date of
  109  any revocation, modification, or suspension by the court.
  110         (e), and A description of the steps taken to identify and
  111  locate a the preexisting order not to resuscitate or advance
  112  directive.
  113         (2)A surrogate designated by the ward in an advance
  114  directive or an agent designated by the ward in a durable power
  115  of attorney who retains authority to make health care decisions
  116  under the guardianship plan may exercise retained authority
  117  without additional approval by the court. Any authority of the
  118  surrogate to carry out the instructions in the advance directive
  119  or authority of the agent under a durable power of attorney
  120  which is transferred to the guardian may be exercised by the
  121  guardian, consistent with the advance directive or durable power
  122  of attorney, without additional approval by the court. Any
  123  authority transferred to the guardian to execute an order not to
  124  resuscitate or to consent to withhold or withdraw life
  125  prolonging procedures is subject to court approval pursuant to
  126  s. 744.441 if there is a conflict over or objection to a
  127  proposed exercise of that authority.
  128         Section 4. Section 744.4431, Florida Statutes, is created
  129  to read:
  130         744.4431Guardianship power regarding life-prolonging
  131  procedures.—
  132         (1) A guardian of a ward’s person may petition a court
  133  pursuant to the Florida Probate Rules for authority to consent
  134  to withhold or withdraw life-prolonging procedures for any of
  135  the following reasons:
  136         (a) The right to consent to withhold or withdraw life
  137  prolonging procedures has not been delegated to the guardian in
  138  the order appointing the guardian.
  139         (b) Sufficient authority under the ward’s preexisting
  140  advance directive or durable power of attorney has not been
  141  transferred to the guardian.
  142         (c) The proposed withholding or withdrawal of life
  143  prolonging procedures is in conflict with the wishes, as
  144  presently or previously expressed, of the ward, the ward’s next
  145  of kin, or any interested person.
  146         (2)The petition by the guardian must contain all of the
  147  following:
  148         (a) A description of the proposed action for which court
  149  approval is sought and documentation of any existing authority
  150  for the guardian to make health care decisions for the ward.
  151         (b)A statement regarding any known objections to the
  152  proposed action or of conflicts between the guardian’s proposed
  153  action to withhold or withdraw life-prolonging procedures and
  154  the wishes, presently or previously expressed, of the ward, the
  155  ward’s next of kin, or any interested person.
  156         (c)A description of the circumstances or evidence and
  157  affidavits or supporting documentation showing that the proposed
  158  action satisfies the applicable criteria in s. 765.401 or s.
  159  765.404.
  160         (3)The guardian must serve notice of the petition, and of
  161  any hearing, upon interested persons and the ward’s next of kin,
  162  unless waived by the court.
  163         (4) The court must hold a hearing on the petition if the
  164  court has been notified of an objection or conflict or if the
  165  court has insufficient information to determine whether the
  166  criteria for granting the requested authority has been met.
  167         (5)If a hearing is required and exigent circumstances are
  168  alleged, the court must hold a preliminary hearing within 72
  169  hours after the petition is filed and do one of the following:
  170         (a) Rule on the relief requested immediately after the
  171  preliminary hearing.
  172         (b) Conduct an evidentiary hearing within 4 days after the
  173  preliminary hearing and rule on the relief requested immediately
  174  after the evidentiary hearing.
  175         (6)Notwithstanding the requirements for court approval
  176  imposed under this section, and if authority to withhold or
  177  withdraw life-prolonging procedures has not been vested in
  178  another person, the guardian may, without a hearing or prior
  179  court approval, consent to the withholding or withdrawal of
  180  life-prolonging procedures if all of the following apply:
  181         (a)The ward is in a hospital and at least two of the
  182  ward’s treating physicians state in writing that there is a
  183  substantial likelihood that the ward’s death will occur within
  184  the next 72 hours.
  185         (b)There is no known objection to the granting of a
  186  petition to withhold or withdraw life-prolonging procedures.
  187         (c)The hospital ethics committee has met and agrees with
  188  the guardian’s proposal to withhold or withdraw life-prolonging
  189  procedures. If the hospital does not have an ethics committee,
  190  it may seek approval by the ethics committee of another facility
  191  or a community-based ethics committee approved by the Florida
  192  Bioethics Network.
  193         Section 5. Section 744.441, Florida Statutes, is amended to
  194  read:
  195         744.441 Powers of guardian upon court approval.—After
  196  obtaining approval of the court pursuant to a petition for
  197  authorization to act,:
  198         (1) a plenary guardian of the property, or a limited
  199  guardian of the property within the powers granted by the order
  200  appointing the guardian or an approved annual or amended
  201  guardianship report, may do all of the following:
  202         (1)(a) Perform, compromise, or refuse performance of a
  203  ward’s contracts that continue as obligations of the estate, as
  204  he or she may determine under the circumstances.
  205         (2)(b) Execute, exercise, or release any powers as trustee,
  206  personal representative, custodian for minors, conservator, or
  207  donee of any power of appointment or other power that the ward
  208  might have lawfully exercised, consummated, or executed if not
  209  incapacitated, if the best interest of the ward requires such
  210  execution, exercise, or release.
  211         (3)(c) Make ordinary or extraordinary repairs or
  212  alterations in buildings or other structures; demolish any
  213  improvements; or raze existing, or erect new, party walls or
  214  buildings.
  215         (4)(d) Subdivide, develop, or dedicate land to public use;
  216  make or obtain the vacation of plats and adjust boundaries;
  217  adjust differences in valuation on exchange or partition by
  218  giving or receiving consideration; or dedicate easements to
  219  public use without consideration.
  220         (5)(e) Enter into a lease as lessor or lessee for any
  221  purpose, with or without option to purchase or renew, for a term
  222  within, or extending beyond, the period of guardianship.
  223         (6)(f) Enter into a lease or arrangement for exploration
  224  and removal of minerals or other natural resources or enter into
  225  a pooling or unitization agreement.
  226         (7)(g) Abandon property when, in the opinion of the
  227  guardian, it is valueless or is so encumbered or in such
  228  condition that it is of no benefit to the estate.
  229         (8)(h) Pay calls, assessments, and other sums chargeable or
  230  accruing against, or on account of, securities.
  231         (9)(i) Borrow money, with or without security, to be repaid
  232  from the property or otherwise and advance money for the
  233  protection of the estate.
  234         (10)(j) Effect a fair and reasonable compromise with any
  235  debtor or obligor or extend, renew, or in any manner modify the
  236  terms of any obligation owing to the estate.
  237         (11)(k) Prosecute or defend claims or proceedings in any
  238  jurisdiction for the protection of the estate and of the
  239  guardian in the performance of his or her duties. Before
  240  authorizing a guardian to bring an action described in s.
  241  736.0207, the court shall first find that the action appears to
  242  be in the ward’s best interests during the ward’s probable
  243  lifetime. There shall be a rebuttable presumption that an action
  244  challenging the ward’s revocation of all or part of a trust is
  245  not in the ward’s best interests if the revocation relates
  246  solely to a devise. This subsection paragraph does not preclude
  247  a challenge after the ward’s death. If the court denies a
  248  request that a guardian be authorized to bring an action
  249  described in s. 736.0207, the court must shall review the
  250  continued need for a guardian and the extent of the need for
  251  delegation of the ward’s rights.
  252         (12)(l) Sell, mortgage, or lease any real or personal
  253  property of the estate, including homestead property, or any
  254  interest therein for cash or credit, or for part cash and part
  255  credit, and with or without security for unpaid balances.
  256         (13)(m) Continue any unincorporated business or venture in
  257  which the ward was engaged.
  258         (14)(n) Purchase the entire fee simple title to real estate
  259  in this state in which the guardian has no interest, but the
  260  purchase may be made only for a home for the ward, to protect
  261  the home of the ward or the ward’s interest, or as a home for
  262  the ward’s dependent family. If the ward is a married person and
  263  the home of the ward or of the dependent family of the ward is
  264  owned by the ward and spouse as an estate by the entirety and
  265  the home is sold pursuant to the authority of subsection (12)
  266  paragraph (l), the court may authorize the investment of any
  267  part or all of the proceeds from the sale toward the purchase of
  268  a fee simple title to real estate in this state for a home for
  269  the ward or the dependent family of the ward as an estate by the
  270  entirety owned by the ward and spouse. If the guardian is
  271  authorized to acquire title to real estate for the ward or
  272  dependent family of the ward as an estate by the entirety in
  273  accordance with the preceding provisions, the conveyance must
  274  shall be in the name of the ward and spouse and shall be
  275  effective to create an estate by the entirety in the ward and
  276  spouse.
  277         (15)(o) Exercise any option contained in any policy of
  278  insurance payable to, or inuring to the benefit of, the ward.
  279         (16)(p) Pay reasonable funeral, interment, and grave marker
  280  expenses for the ward from the ward’s estate.
  281         (17)(q) Make gifts of the ward’s property to members of the
  282  ward’s family in estate and income tax planning procedures.
  283         (18)(r) When the ward’s will evinces an objective to obtain
  284  a United States estate tax charitable deduction by use of a
  285  split interest trust (as that term is defined in s. 736.1201),
  286  but the maximum charitable deduction otherwise allowable will
  287  not be achieved in whole or in part, execute a codicil on the
  288  ward’s behalf amending said will to obtain the maximum
  289  charitable deduction allowable without diminishing the aggregate
  290  value of the benefits of any beneficiary under such will.
  291         (19)(s) Create or amend revocable trusts or create
  292  irrevocable trusts of property of the ward’s estate which may
  293  extend beyond the disability or life of the ward in connection
  294  with estate, gift, income, or other tax planning or in
  295  connection with estate planning. The court shall retain
  296  oversight of the assets transferred to a trust, unless otherwise
  297  ordered by the court.
  298         (20)(t) Renounce or disclaim any interest by testate or
  299  intestate succession or by inter vivos transfer.
  300         (21)(u) Enter into contracts that are appropriate for, and
  301  in the best interest of, the ward.
  302         (22)(v) As to a minor ward, pay expenses of the ward’s
  303  support, health, maintenance, and education, if the ward’s
  304  parents, or either of them, are alive.
  305         (2) A plenary guardian or a limited guardian of a ward may
  306  sign an order not to resuscitate as provided in s. 401.45(3).
  307  When a plenary guardian or a limited guardian of a ward seeks to
  308  obtain approval of the court to sign an order not to
  309  resuscitate, if required by exigent circumstances, the court
  310  must hold a preliminary hearing within 72 hours after the
  311  petition is filed, and:
  312         (a) Rule on the relief requested immediately after the
  313  preliminary hearing; or
  314         (b) Conduct an evidentiary hearing not later than 4 days
  315  after the preliminary hearing and rule on the relief requested
  316  immediately after the evidentiary hearing.
  317         Section 6. This act shall take effect July 1, 2023.