The Florida Senate

393.12  Capacity; appointment of guardian advocate.--

(1)  CAPACITY.--

(a)  The issue of capacity shall be separate and distinct from a determination of the appropriateness of admission to nonresidential services or residential care for a condition of developmental disabilities. No person shall be presumed incapacitated solely by reason of his or her acceptance in nonresidential services or admission to residential care; nor shall any such person be denied the full exercise of all legal rights guaranteed to citizens of this state and of the United States.

(b)  The issue of capacity of a person with developmental disabilities shall be determined in a separate proceeding according to the procedures and requirements of chapter 744 and the Florida Probate Rules.

(2)  APPOINTMENT OF A GUARDIAN ADVOCATE.--

(a)  Conditions.--A probate court may appoint a guardian advocate, without an adjudication of incapacity, for a person with developmental disabilities, if the person lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person, property, or estate or if the person has voluntarily petitioned for the appointment of a guardian advocate. Except as otherwise specified, the proceeding shall be governed by the Florida Rules of Civil Procedure.

(b)  Petition.--A petition to appoint a guardian advocate may be executed by an adult person who is a resident of this state. The petition shall be verified and shall:

1.  State the name, age, and present address of the petitioner and his or her relationship to the person with developmental disabilities;

2.  State the name, age, county of residence, and present address of the person with developmental disabilities;

3.  Allege that the petitioner believes that the person needs a guardian advocate and specify the factual information on which such belief is based;

4.  Specify the exact areas in which the person lacks the capacity to make informed decisions about his or her care and treatment services or to meet the essential requirements for his or her physical health or safety;

5.  Specify the legal disabilities to which the person is subject; and

6.  State the name of the proposed guardian advocate, the relationship of that person to the person with developmental disabilities, and the reason why this person should be appointed. If a willing and qualified guardian advocate cannot be located, the petition shall so state.

(c)  Notice.--

1.  Notice of the filing of the petition shall be given to the individual and his or her parent or parents. The notice shall be given both verbally and in writing in the language of the person and in English. Notice shall also be given to such other persons as the court may direct. The petition to appoint a guardian advocate shall be served with the notice.

2.  The notice shall state that a hearing shall be set to inquire into the capacity of the person with developmental disabilities to exercise the rights enumerated in the petition. The notice shall also state the date of the hearing on the petition.

3.  The notice shall state that the individual with developmental disabilities has the right to be represented by counsel of his or her own choice and that if the individual cannot afford an attorney, the court shall appoint one.

(d)  Counsel.--

1.  Every person with developmental disabilities who is the subject of a petition to appoint a guardian advocate shall be represented by counsel.

2.  Every person with developmental disabilities has the right to be represented by counsel of his or her own choice. If the person cannot afford an attorney, the court shall appoint one to represent the person. The court shall appoint counsel if no appearance has been filed within 10 working days of the hearing.

(e)  Hearing.--

1.  Upon the filing of the petition to appoint a guardian advocate, the court shall set a date upon which the petition shall be heard. A hearing on the petition shall be held as soon as practicable after the petition is filed, but reasonable delay for the purpose of investigation, discovery, or procuring counsel or witnesses shall be granted.

2.  The hearing shall be conducted at the time and place specified in the notice of hearing. The hearing shall be conducted in a manner consistent with due process.

3.  The individual has the right to be present at the hearing and shall be present unless good cause to exclude the individual can be shown. The individual has the right to remain silent, to present evidence, to call and cross-examine witnesses, and to have the hearing open or closed, as the person may choose.

4.  At the hearing, the court shall receive and consider all reports relevant to the person's disabilities, including, but not limited to, the current individual family or individual support plan, the individual education plan, and other professional reports documenting the condition and needs of the individual.

5.  The Florida Evidence Code, chapter 90, shall apply at the hearing. The burden of proof shall be by clear and convincing evidence.

(f)  Order determining the appointment of a guardian advocate.--If the court finds the person with developmental disabilities requires the appointment of a guardian advocate, the court shall enter a written order determining the need for a guardian advocate. The written order shall contain the findings of facts and conclusions of law on which the court made its decision. The court shall make the following findings:

1.  The nature and scope of the person's incapacity;

2.  The exact areas in which the individual lacks capacity to make informed decisions about care and treatment services or to meet the essential requirements for his or her physical health and safety;

3.  The specific legal disabilities to which the person with developmental disabilities is subject; and

4.  The powers and duties of the guardian advocate, including bonding of the guardian advocate, as governed by s. 744.351

(g)  Legal rights.--A person with developmental disabilities for whom a guardian advocate has been appointed retains all legal rights except those which have been specifically granted to the guardian advocate.

(h)  Powers and duties of guardian advocate.--A guardian advocate for a person with developmental disabilities shall be a person or corporation qualified to act as guardian, with the same powers, duties, and responsibilities required of a guardian under chapter 744 or those defined by court order under this section. However, a guardian advocate may not be required to file an annual accounting under s. 744.3678 if the court determines that the person with developmental disabilities receives income only from Social Security benefits and the guardian advocate is the person's representative payee for the benefits.

(3)  COURT COSTS.--In all proceedings under this section, no court costs shall be charged against the agency.

History.--s. 1, ch. 29853, 1955; s. 1, ch. 61-426; s. 26, ch. 63-559; s. 1, ch. 70-343; s. 5, ch. 73-308; s. 25, ch. 73-334; s. 4, ch. 77-335; s. 2, ch. 80-171; s. 10, ch. 88-398; s. 109, ch. 89-96; s. 15, ch. 94-154; s. 96, ch. 95-143; s. 1049, ch. 95-148; s. 8, ch. 2004-260; s. 108, ch. 2004-267.