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A bill to be entitled

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An act relating to guardian advocates for persons with

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developmental disabilities; amending s. 393.12, F.S.;

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authorizing a court in dependency proceedings to appoint a

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guardian advocate for a child; providing that the person

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being considered for or appointed as guardian advocate

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need not be represented by an attorney unless required by

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the court; revising the requirements for the petition

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seeking the appointment of a guardian advocate; providing

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for consideration of any advance directive or a

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designation of a durable power of attorney in guardian

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advocacy proceedings; modifying the persons to whom a

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notice of the filing of the petition must be given to

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include next of kin, a health care surrogate, and an

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attorney in fact, and, if a dependent child, the

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Department of Children and Family Services and the child's

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guardian ad litem or attorney; modifying who may be

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appointed counsel to a person with developmental

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disabilities and providing a timeframe for appointment of

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counsel, including the office of criminal conflict and

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civil regional counsel; requiring the court's order to

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name the guardian advocate and the reasons why the

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advocate was selected; revising the powers and duties of

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the guardian advocate with respect to financial accounting

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requirements; providing for the restoration of the rights

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of a person for whom a guardian advocate has been

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appointed; providing for the petition, evidentiary

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support, notice, objections to the petition; providing for

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the partial restoration of rights and the amendment of the

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letters of guardianship advocacy; amending s. 393.13,

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F.S.; conforming a cross-reference; providing an effective

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date.

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Be It Enacted by the Legislature of the State of Florida:

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     Section 1.  Section 393.12, Florida Statutes, is amended to

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read:

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     393.12  Capacity; appointment of guardian advocate.--

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     (1)  CAPACITY.--

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     (a) The issue of capacity shall be separate and distinct

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from a determination of the appropriateness of admission to

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nonresidential services or residential care for a condition of

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developmental disabilities. A No person with a developmental

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disability may not shall be presumed incapacitated solely by

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reason of his or her acceptance in nonresidential services or

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admission to residential care and may not; nor shall any such

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person be denied the full exercise of all legal rights guaranteed

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to citizens of this state and of the United States.

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     (b) The determination of incapacity issue of capacity of a

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person with developmental disabilities and the appointment of a

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guardian must shall be conducted determined in a separate

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proceeding according to the procedures and requirements of

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chapter 744 and the Florida Probate Rules.

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     (2)  APPOINTMENT OF A GUARDIAN ADVOCATE.--

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     (a) Conditions.--A circuit probate court may appoint a

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guardian advocate, without an adjudication of incapacity, for a

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person with developmental disabilities, if the person lacks the

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decisionmaking ability capacity to do some, but not all, of the

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decisionmaking tasks necessary to care for his or her person,

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property, or estate or if the person has voluntarily petitioned

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for the appointment of a guardian advocate. A court having

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jurisdiction in a dependency proceeding may appoint a guardian

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advocate for a child who has been adjudicated dependent. Except

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as otherwise specified, the proceeding shall be governed by the

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Florida Rules of Probate Civil Procedure.

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     (b) The appointment of a guardian advocate shall be made by

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the court in accordance with s. 744.312.

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     (c) The person being considered for or appointed as the

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guardian advocate need not be represented by an attorney unless

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required by the court.

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     (3)(b) PETITION.--A petition to appoint a guardian advocate

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for a person with developmental disabilities may be executed by

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an adult person who is a resident of this state. The petition

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must shall be verified and must shall:

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     (a)1. State the name, age, and present address of the

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petitioner and his or her relationship to the person with

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developmental disabilities;

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     (b)2. State the name, age, county of residence, and present

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address of the person with developmental disabilities;

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     (c)3. Allege that the petitioner believes that the person

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needs a guardian advocate and specify the factual information on

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which such belief is based;

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     (d)4. Specify the exact areas in which the person lacks the

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decision-making ability capacity to make informed decisions about

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his or her care and treatment services or to meet the essential

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requirements for his or her physical health or safety;

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     (e)5. Specify the legal disabilities to which the person is

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subject; and

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     (f)6. State the name of the proposed guardian advocate, the

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relationship of that person to the person with developmental

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disabilities, the relationship of the proposed guardian advocate

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with the providers of health care services, residential services,

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or other services to the person with development disabilities,

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and the reason why this person should be appointed. If a willing

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and qualified guardian advocate cannot be located, the petition

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shall so state.

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     (4) ADVANCE DIRECTIVES FOR HEALTH CARE AND DURABLE POWER OF

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ATTORNEY.--In a proceeding seeking the appointment of a guardian

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advocate under this section, the court shall determine whether

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the person with a developmental disability has executed an

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advance directive under chapter 765 or a durable power of

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attorney under chapter 709.

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     (a) If the person has executed an advance directive or

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durable power of attorney, the court shall determine whether the

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documents sufficiently address the needs of the person. The court

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may not appoint a guardian advocate if the court finds that the

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advance directive or durable power of attorney provides an

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alternative to the appointment of a guardian advocate which

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sufficiently addresses the needs of the person with a

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developmental disability.

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     (b) If an advance directive exists and the court determines

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that the appointment of a guardian advocate is necessary, the

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court shall specify in its order and letters of guardian advocacy

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what authority, if any, the guardian advocate shall exercise over

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the health care surrogate. Pursuant to the grounds listed in s.

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765.105, the court, upon its own motion, may, with notice to the

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health care surrogate and any other appropriate parties, modify

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or revoke the authority of the health care surrogate to make

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health care decisions for the person with a developmental

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disability. For purposes of this section, the term "health care

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decision" has the same meaning as in s. 765.101.

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     (c) If a durable power of attorney exists, the court shall

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specify in its order and letters of guardian advocacy what powers

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of the attorney in fact, if any, are suspended and granted to the

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guardian advocate. However, the court may not suspend the powers

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of the attorney in fact unless the court determines that the

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durable power of attorney is invalid or there is an abuse of

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power by the attorney in fact.

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     (5)(c) NOTICE.--

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     (a)1. Notice of the filing of the petition must shall be

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given to the person with developmental disabilities, individual

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and his or her parent or parents. The notice shall be given both

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verbally and in writing, in the language of the person and in

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English. Notice must shall also be given to the person with a

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developmental disability's next of kin as defined in chapter 744,

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to a health care surrogate appointed under chapter 765, to an

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attorney in fact designated in a durable power of attorney, and

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to such other persons as the court may direct. If the petition

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seeks a guardian advocate for a dependent child, notice must be

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given to the Department of Children and Family Services and to

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the child's guardian ad litem or attorney. A copy of the petition

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to appoint a guardian advocate must shall be served with the

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notice.

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     (b)2. The notice must shall state that a hearing will be

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held shall be set to inquire into the capacity of the person with

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developmental disabilities to exercise the rights enumerated in

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the petition. The notice must shall also state the date of the

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hearing on the petition.

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     (c)3. The notice must shall state that the person

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individual with developmental disabilities has the right to be

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represented by counsel of his or her own choice and that if the

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person individual cannot afford an attorney, the court shall

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appoint one.

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     (6)(d) COUNSEL.--Within 3 days after a petition has been

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filed, the court shall appoint an attorney to represent a person

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with developmental disabilities who is the subject of a petition

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to appoint a guardian advocate. The person with developmental

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disabilities may substitute his or her own attorney for the

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attorney appointed by the court.

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     (a) If the court appoints the attorney:

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     1. The court shall appoint the office of criminal conflict

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and civil regional counsel or a private attorney as prescribed in

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s. 27.511(6). A private attorney shall be selected from the

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attorney registry compiled pursuant to s. 27.40.

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     2. The attorney must have completed a minimum of 8 hours of

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education in guardianship. The court may waive this requirement

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for an attorney who has served as a court-appointed attorney in

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guardian advocate proceedings or as an attorney of record for

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guardian advocates for at least 3 years.

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     (b) An attorney representing a person with developmental

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disabilities may not also serve as the guardian advocate of the

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person, as counsel for the guardian advocate, or as counsel for

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the person petitioning for the appointment of a guardian

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advocate.

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     1. Every person with developmental disabilities who is the

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subject of a petition to appoint a guardian advocate shall be

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represented by counsel.

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     2. Every person with developmental disabilities has the

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right to be represented by counsel of his or her own choice. If

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the person cannot afford an attorney, the court shall appoint one

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to represent the person. The court shall appoint counsel if no

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appearance has been filed within 10 working days of the hearing.

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     (7)(e) HEARING.--

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     (a)1. Upon the filing of the petition to appoint a guardian

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advocate, the court shall set a date for holding a hearing on

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upon which the petition shall be heard. The A hearing must on the

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petition shall be held as soon as practicable after the petition

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is filed, but a reasonable delay for the purpose of

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investigation, discovery, or procuring counsel or witnesses may

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shall be granted.

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     (b)2. The hearing must be held shall be conducted at the

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time and place specified in the notice of hearing and must. The

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hearing shall be conducted in a manner consistent with due

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process.

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     (c)3. The person with developmental disabilities individual

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has the right to be present at the hearing and shall be present

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unless good cause to exclude the individual can be shown. The

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person individual has the right to remain silent, to present

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evidence, to call and cross-examine witnesses, and to have the

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hearing open or closed, as the person may choose.

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     (d)4. At the hearing, the court shall receive and consider

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all reports relevant to the person's disabilities, including, but

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not limited to, the person's current individual family or

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individual support plan, the individual education plan, and other

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professional reports documenting the condition and needs of the

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person individual.

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     (e)5. The Florida Evidence Code, chapter 90, applies shall

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apply at the hearing. The burden of proof must shall be by clear

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and convincing evidence.

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     (8)(f) COURT ORDER determining the appointment of a

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guardian advocate.--If the court finds the person with

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developmental disabilities requires the appointment of a guardian

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advocate, the court shall enter a written order appointing the

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guardian advocate and containing determining the need for a

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guardian advocate. The written order shall contain the findings

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of facts and conclusions of law on which the court made its

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decision, including. The court shall make the following findings:

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     (a)1. The nature and scope of the person's inability to

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make decisions incapacity;

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     (b)2. The exact areas in which the individual lacks

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decisionmaking ability capacity to make informed decisions about

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care and treatment services or to meet the essential requirements

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for his or her physical health and safety;

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     (c)3. The specific legal disabilities to which the person

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with developmental disabilities is subject; and

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     (d) The name of the person selected as guardian advocate

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and the reasons for the court's selection; and

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     (e)4. The powers, and duties, and responsibilities of the

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guardian advocate, including bonding of the guardian advocate, as

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provided in governed by s. 744.351.

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     (9)(g) LEGAL RIGHTS.--A person with developmental

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disabilities for whom a guardian advocate has been appointed

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retains all legal rights except those that which have been

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specifically granted to the guardian advocate.

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     (10)(h) POWERS AND DUTIES of guardian advocate.--A guardian

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advocate for a person with developmental disabilities has shall

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be a person or corporation qualified to act as guardian, with the

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same powers, duties, and responsibilities required of a guardian

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under chapter 744 or those defined by court order issued under

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this section. If the court waives the filing of annual

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accounting, the court shall require the guardian advocate to

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notify the court of any changes in the person's financial

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circumstances. However, a guardian advocate may not be required

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to file an annual accounting under s. 744.3678 if the court

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determines that the person with developmental disabilities

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receives income only from social security benefits and the

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guardian advocate is the person's representative payee for the

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benefits.

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     (11)(3) COURT COSTS.--In all proceedings under this

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section, no court costs may not shall be charged against the

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agency.

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     (12) RESTORATION OF RIGHTS.--Any interested person,

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including the person for whom a guardian advocate has been

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appointed, may file a petition with the court from which the

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appointment of a guardian advocacy was issued seeking the

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restoration of the person's rights. The petition must include

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evidentiary support such as a signed statement from a medical,

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psychological, or psychiatric practitioner who has evaluated the

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person with developmental disabilities and which supports the

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suggestion that restoration is feasible and would not pose a

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detriment to the health or welfare of the ward. The petition must

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state that the person with a developmental disability is capable

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of exercising some or all of the rights that were granted to the

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guardian advocate.

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     (a) Within 3 days after filing the petition, counsel shall

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be appointed for the person for whom a guardian advocate has been

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appointed as set forth in subsection (6).

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     (b) Upon the appointment of counsel, the petitioner shall

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immediately send notice of the filing of the petition to the

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person for whom a guardian advocate was appointed, the person's

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guardian advocate, the person's attorney, and any other

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interested person as directed by the court. Formal notice shall

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be served on the guardian advocate. Informal notice may be served

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on the other persons. Notice need not be served on the

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petitioner.

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     (c) Any objections to the petition must be filed within 20

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days after service of the notice of the petition. If an objection

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is timely filed, or if the examination suggests that a

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restoration of rights is not appropriate, the court shall set the

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matter for hearing.

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     1. Notice of the hearing and copies of the objections shall

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be served upon the person with the developmental disability, the

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person's attorney, the person's guardian advocate, and any other

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interested persons as directed by the court.

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     2. The hearing shall be conducted as set forth in s.

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744.1085. The court, at the hearing, shall consider all reports

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and testimony relevant to the person's decisionmaking capacities,

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including, but not limited to, the evidentiary support, the

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person's current individual family or individual support plan,

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the individual education plan, and any other professional reports

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documenting the condition and needs of the person.

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     (d) At the conclusion of a hearing, the court shall enter

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an order denying the petition or restoring all or some of the

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rights that were granted to the guardian advocate.

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     1. If only some rights are restored to the person with a

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developmental disability, the order must state which rights are

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restored and amend the letters of guardianship advocacy issued by

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the court accordingly.

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     2. Within 60 days after the order restoring rights and

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amended letters of guardian advocacy are issued, the guardian

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advocate shall amend the current plan required by chapter 744 if

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personal rights are restored to the person with a developmental

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disability, and shall file a final accounting as required by

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chapter 744 if all property rights are restored to the person

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with a developmental disability. A copy of the amended plan and

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accounting shall be served upon the person with a developmental

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disability and the person's attorney.

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     (e) If no objections are filed and the court is satisfied

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with the evidentiary support that the person has sufficient

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decisionmaking ability, the court shall enter an order for the

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restoration of the person's rights that had been granted to a

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guardian advocate and that the person with a developmental

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disability may now exercise. The order must be issued within 30

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days after the petition is filed.

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     Section 2.  Paragraph (h) of subsection (3) of section

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393.13, Florida Statutes, is amended to read:

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     393.13  Treatment of persons with developmental

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disabilities.--

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     (3)  RIGHTS OF ALL PERSONS WITH DEVELOPMENTAL

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DISABILITIES.--The rights described in this subsection shall

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apply to all persons with developmental disabilities, whether or

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not such persons are clients of the agency.

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     (h)  Persons with developmental disabilities shall have a

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right to consent to or refuse treatment, subject to the powers of

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a guardian advocate appointed pursuant to s. 393.12 or a guardian

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appointed pursuant to provisions of s. 393.12(2)(a) or chapter

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744.

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     Section 3.  This act shall take effect July 1, 2008.