| 1 | Representative Ambler offered the following: |
| 2 |
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| 3 | Amendment (with title amendment) |
| 4 | Remove everything after the enacting clause and insert: |
| 5 | Section 1. Section 393.12, Florida Statutes, is amended to |
| 6 | read: |
| 7 | 393.12 Capacity; appointment of guardian advocate.-- |
| 8 | (1) CAPACITY.-- |
| 9 | (a) The issue of capacity shall be separate and distinct |
| 10 | from a determination of the appropriateness of admission to |
| 11 | nonresidential services or residential care for a condition of |
| 12 | developmental disabilities. A No person with a developmental |
| 13 | disability may not shall be presumed incapacitated solely by |
| 14 | reason of his or her acceptance in nonresidential services or |
| 15 | admission to residential care and may not; nor shall any such |
| 16 | person be denied the full exercise of all legal rights |
| 17 | guaranteed to citizens of this state and of the United States. |
| 18 | (b) The determination of incapacity issue of capacity of a |
| 19 | person with a developmental disability and the appointment of a |
| 20 | guardian must be conducted disabilities shall be determined in a |
| 21 | separate proceeding according to the procedures and requirements |
| 22 | of chapter 744 and the Florida Probate Rules. |
| 23 | (2) APPOINTMENT OF A GUARDIAN ADVOCATE.-- |
| 24 | (a) Conditions.--A circuit probate court may appoint a |
| 25 | guardian advocate, without an adjudication of incapacity, for a |
| 26 | person with developmental disabilities, if the person lacks the |
| 27 | decisionmaking ability capacity to do some, but not all, of the |
| 28 | decisionmaking tasks necessary to care for his or her person or, |
| 29 | property, or estate or if the person has voluntarily petitioned |
| 30 | for the appointment of a guardian advocate. Except as otherwise |
| 31 | specified, the proceeding shall be governed by the Florida Rules |
| 32 | of Probate Civil Procedure. |
| 33 | (b) A person who is being considered for appointment or is |
| 34 | appointed as a guardian advocate need not be represented by an |
| 35 | attorney unless required by the court or if the guardian |
| 36 | advocate is delegated any rights regarding property other than |
| 37 | the right to be the representative payee for government |
| 38 | benefits. This paragraph applies only to proceedings relating to |
| 39 | the appointment of a guardian advocate and the court's |
| 40 | supervision of a guardian advocate and is not an exercise of the |
| 41 | Legislature's authority pursuant to s. (2)(a), Art. V of the |
| 42 | State Constitution. |
| 43 | (3)(b) PETITION.--A petition to appoint a guardian |
| 44 | advocate for a person with a developmental disability may be |
| 45 | executed by an adult person who is a resident of this state. The |
| 46 | petition must shall be verified and must shall: |
| 47 | (a)1. State the name, age, and present address of the |
| 48 | petitioner and his or her relationship to the person with a |
| 49 | developmental disability disabilities; |
| 50 | (b)2. State the name, age, county of residence, and |
| 51 | present address of the person with a developmental disability |
| 52 | disabilities; |
| 53 | (c)3. Allege that the petitioner believes that the person |
| 54 | needs a guardian advocate and specify the factual information on |
| 55 | which such belief is based; |
| 56 | (d)4. Specify the exact areas in which the person lacks |
| 57 | the decisionmaking ability capacity to make informed decisions |
| 58 | about his or her care and treatment services or to meet the |
| 59 | essential requirements for his or her physical health or safety; |
| 60 | (e)5. Specify the legal disabilities to which the person |
| 61 | is subject; and |
| 62 | (f)6. State the name of the proposed guardian advocate, |
| 63 | the relationship of that person to the person with a |
| 64 | developmental disability; the relationship that the proposed |
| 65 | guardian advocate had or has with a provider of health care |
| 66 | services, residential services, or other services to the person |
| 67 | with a developmental disability; disabilities, and the reason |
| 68 | why this person should be appointed. If a willing and qualified |
| 69 | guardian advocate cannot be located, the petition shall so |
| 70 | state. |
| 71 | (4)(c) NOTICE.-- |
| 72 | (a)1. Notice of the filing of the petition must shall be |
| 73 | given to the person with a developmental disability, individual |
| 74 | and his or her parent or parents. The notice shall be given both |
| 75 | verbally and in writing in the language of the person and in |
| 76 | English. Notice must shall also be given to the next of kin of |
| 77 | the person with a developmental disability as defined in chapter |
| 78 | 744, any health care surrogate designated for the person with a |
| 79 | developmental disability pursuant to an advance directive under |
| 80 | chapter 765, any agent designated for the person with a |
| 81 | developmental disability under a durable power of attorney, and |
| 82 | such other persons as the court may direct. A copy of the |
| 83 | petition to appoint a guardian advocate must shall be served |
| 84 | with the notice. |
| 85 | (b)2. The notice must shall state that a hearing will be |
| 86 | held shall be set to inquire into the capacity of the person |
| 87 | with a developmental disability disabilities to exercise the |
| 88 | rights enumerated in the petition. The notice must shall also |
| 89 | state the date of the hearing on the petition. |
| 90 | (c)3. The notice shall state that the person with a |
| 91 | developmental disability individual with developmental |
| 92 | disabilities has the right to be represented by counsel of his |
| 93 | or her own choice and that if the person individual cannot |
| 94 | afford an attorney, the court shall appoint one. |
| 95 | (5)(d) COUNSEL.--Within 3 days after a petition has been |
| 96 | filed, the court shall appoint an attorney to represent a person |
| 97 | with a developmental disability who is the subject of a petition |
| 98 | to appoint a guardian advocate. The person with a developmental |
| 99 | disability may substitute his or her own attorney for the |
| 100 | attorney appointed by the court. |
| 101 | (a) If the court appoints the attorney: |
| 102 | 1. The court shall appoint a private attorney who shall be |
| 103 | selected from the attorney registry compiled pursuant to s. |
| 104 | 27.40. |
| 105 | 2. The attorney must have completed a minimum of 8 hours |
| 106 | of education in guardianship. The court may waive this |
| 107 | requirement for an attorney who has served as a court-appointed |
| 108 | attorney in guardian advocate proceedings or as an attorney of |
| 109 | record for guardian advocates for at least 3 years. |
| 110 | (b) An attorney representing a person with a developmental |
| 111 | disability may not also serve as the guardian advocate of the |
| 112 | person, as counsel for the guardian advocate, or as counsel for |
| 113 | the person petitioning for the appointment of a guardian |
| 114 | advocate. |
| 115 | 1. Every person with developmental disabilities who is the |
| 116 | subject of a petition to appoint a guardian advocate shall be |
| 117 | represented by counsel. |
| 118 | 2. Every person with developmental disabilities has the |
| 119 | right to be represented by counsel of his or her own choice. If |
| 120 | the person cannot afford an attorney, the court shall appoint |
| 121 | one to represent the person. The court shall appoint counsel if |
| 122 | no appearance has been filed within 10 working days of the |
| 123 | hearing. |
| 124 | (6)(e) HEARING.-- |
| 125 | (a)1. Upon the filing of the petition to appoint a |
| 126 | guardian advocate, the court shall set a date for holding a |
| 127 | hearing on upon which the petition shall be heard. The A hearing |
| 128 | must on the petition shall be held as soon as practicable after |
| 129 | the petition is filed, but reasonable delay for the purpose of |
| 130 | investigation, discovery, or procuring counsel or witnesses may |
| 131 | shall be granted. |
| 132 | (b)2. The hearing must be held shall be conducted at the |
| 133 | time and place specified in the notice of hearing and must. The |
| 134 | hearing shall be conducted in a manner consistent with due |
| 135 | process. |
| 136 | (c)3. The person with a developmental disability |
| 137 | individual has the right to be present at the hearing and shall |
| 138 | be present unless good cause to exclude the individual can be |
| 139 | shown. The person individual has the right to remain silent, to |
| 140 | present evidence, to call and cross-examine witnesses, and to |
| 141 | have the hearing open or closed, as the person may choose. |
| 142 | (d)4. At the hearing, the court shall receive and consider |
| 143 | all reports relevant to the person's disability disabilities, |
| 144 | including, but not limited to, the person's current individual |
| 145 | family or individual support plan, the individual education |
| 146 | plan, and other professional reports documenting the condition |
| 147 | and needs of the person individual. |
| 148 | (e)5. The Florida Evidence Code, chapter 90, applies shall |
| 149 | apply at the hearing. The burden of proof must shall be by clear |
| 150 | and convincing evidence. |
| 151 | (7) ADVANCE DIRECTIVES FOR HEALTH CARE AND DURABLE POWER |
| 152 | OF ATTORNEY.--In each proceeding in which a guardian advocate is |
| 153 | appointed under this section, the court shall determine whether |
| 154 | the person with a developmental disability has executed any |
| 155 | valid advance directive under chapter 765 or a durable power of |
| 156 | attorney under chapter 709. |
| 157 | (a) If the person with a developmental disability has |
| 158 | executed an advance directive or durable power of attorney, the |
| 159 | court must consider and find whether the documents will |
| 160 | sufficiently address the needs of the person with a |
| 161 | developmental disability for whom the guardian advocate is |
| 162 | sought. A guardian advocate may not be appointed if the court |
| 163 | finds that the advance directive or durable power of attorney |
| 164 | provides an alternative to the appointment of a guardian |
| 165 | advocate which will sufficiently address the needs of the person |
| 166 | with a developmental disability. |
| 167 | (b) If an interested person seeks to contest an advance |
| 168 | directive or durable power of attorney executed by a person with |
| 169 | a developmental disability, the interested person shall file a |
| 170 | verified statement. The verified statement shall include the |
| 171 | factual basis for the belief that the advance directive or |
| 172 | durable power of attorney is invalid or does not sufficiently |
| 173 | address the needs of the person for whom a guardian advocate is |
| 174 | sought or that the person with authority under the advance |
| 175 | directive or durable power of attorney is abusing his or her |
| 176 | power. |
| 177 | (c) If an advance directive exists, the court shall |
| 178 | specify in its order and letters of guardian advocacy what |
| 179 | authority, if any, the guardian advocate shall exercise over the |
| 180 | person's health care surrogate. Pursuant to the grounds listed |
| 181 | in s. 765.105, the court, upon its own motion, may, with notice |
| 182 | to the health care surrogate and any other appropriate parties, |
| 183 | modify or revoke the authority of the health care surrogate to |
| 184 | make health care decisions for the person with a developmental |
| 185 | disability. For purposes of this section, the term "health care |
| 186 | decision" has the same meaning as in s. 765.101. |
| 187 | (d) If any durable power of attorney exists, the court |
| 188 | shall specify in its order and letters of guardian advocacy what |
| 189 | powers of the agent, if any, are suspended and granted to the |
| 190 | guardian advocate. The court, however, may not suspend any |
| 191 | powers of the agent unless the court determines the durable |
| 192 | power of attorney is invalid or there is an abuse by the agent |
| 193 | of the powers granted. |
| 194 | (8)(f) COURT ORDER determining the appointment of a |
| 195 | guardian advocate.--If the court finds the person with a |
| 196 | developmental disability disabilities requires the appointment |
| 197 | of a guardian advocate, the court shall enter a written order |
| 198 | appointing the guardian advocate and containing determining the |
| 199 | need for a guardian advocate. The written order shall contain |
| 200 | the findings of facts and conclusions of law on which the court |
| 201 | made its decision, including. The court shall make the following |
| 202 | findings: |
| 203 | (a)1. The nature and scope of the person's lack of |
| 204 | decisionmaking ability incapacity; |
| 205 | (b)2. The exact areas in which the individual lacks |
| 206 | decisionmaking ability capacity to make informed decisions about |
| 207 | care and treatment services or to meet the essential |
| 208 | requirements for his or her physical health and safety; |
| 209 | (c)3. The specific legal disabilities to which the person |
| 210 | with developmental disability disabilities is subject; and |
| 211 | (d) The name of the person selected as guardian advocate |
| 212 | and the reasons for the court's selection; and |
| 213 | (e)4. The powers, and duties, and responsibilities of the |
| 214 | guardian advocate, including bonding of the guardian advocate, |
| 215 | as provided in governed by s. 744.351. |
| 216 | (9)(g) LEGAL RIGHTS.--A person with a developmental |
| 217 | disability disabilities for whom a guardian advocate has been |
| 218 | appointed retains all legal rights except those that which have |
| 219 | been specifically granted to the guardian advocate. |
| 220 | (10)(h) POWERS AND DUTIES OF GUARDIAN ADVOCATE.--A |
| 221 | guardian advocate for a person with a developmental disability |
| 222 | disabilities shall be a person or corporation qualified to act |
| 223 | as guardian, with the same powers, duties, and responsibilities |
| 224 | required of a guardian under chapter 744 or those defined by |
| 225 | court order under this section. However, a guardian advocate may |
| 226 | not be required to file an annual accounting under s. 744.3678 |
| 227 | if the court determines that the person with a developmental |
| 228 | disability disabilities receives income only from Social |
| 229 | Security benefits and the guardian advocate is the person's |
| 230 | representative payee for the benefits. |
| 231 | (11)(3) COURT COSTS.--In all proceedings under this |
| 232 | section, no court costs may not shall be charged against the |
| 233 | agency. |
| 234 | (12) SUGGESTION OF RESTORATION OF RIGHTS.--Any interested |
| 235 | person, including the person with a developmental disability, |
| 236 | may file a suggestion of restoration of rights with the court in |
| 237 | which the guardian advocacy is pending. The suggestion must |
| 238 | state that the person with a developmental disability is |
| 239 | currently capable of exercising some or all of the rights that |
| 240 | were delegated to the guardian advocate and provide evidentiary |
| 241 | support for the filing of the suggestion. Evidentiary support |
| 242 | includes, but is not limited to, a signed statement from a |
| 243 | medical, psychological, or psychiatric practitioner by whom the |
| 244 | person with a developmental disability was evaluated and which |
| 245 | supports the suggestion for the restoration. If the petitioner |
| 246 | is unable to provide evidentiary support due to the lack of |
| 247 | access to such information or reports, the petitioner may state |
| 248 | a good faith basis for the suggestion for the restoration of |
| 249 | rights without attaching evidentiary support. The court shall |
| 250 | immediately set a hearing if no evidentiary support is attached |
| 251 | to inquire of the petitioner and guardian advocate as to the |
| 252 | reason and enter such orders as are appropriate to secure the |
| 253 | required documents. The person with a disability and the |
| 254 | person's attorney shall be provided notice of the hearing. |
| 255 | (a) Within 3 days after the filing of the suggestion, |
| 256 | counsel shall be appointed for the person with a developmental |
| 257 | disability as set forth in subsection (5). |
| 258 | (b) The clerk of the court shall immediately send notice |
| 259 | of the filing of the suggestion to the person with a |
| 260 | developmental disability, the guardian advocate, the attorney |
| 261 | for the person with a developmental disability, the attorney for |
| 262 | the guardian advocate, if any, and any other interested person |
| 263 | designated by the court. Formal notice shall be served on the |
| 264 | guardian advocate. Informal notice may be served on other |
| 265 | persons. Notice need not be served on the person who filed the |
| 266 | suggestion. |
| 267 | (c) Any objections to the suggestion must be filed within |
| 268 | 20 days after service of the notice. If an objection is timely |
| 269 | filed, or if the evidentiary support suggests that restoration |
| 270 | of rights is not appropriate, the court shall set the matter for |
| 271 | hearing. The hearing shall be conducted as set forth in s. |
| 272 | 744.1095. The court, at the hearing, shall consider all reports |
| 273 | and testimony relevant to the person's decisionmaking abilities |
| 274 | at the hearing, including, but not limited to, the person's |
| 275 | current individual family plan or individual support plan, the |
| 276 | individual education plan, and other professional reports that |
| 277 | document the condition and needs of the person. |
| 278 | (d) Notice of the hearing and copies of the objections |
| 279 | shall be served upon the person with a developmental disability, |
| 280 | the attorney for the person with a developmental disability, the |
| 281 | guardian advocate, the attorney for the guardian advocate, the |
| 282 | next of kin of the person with a developmental disability, and |
| 283 | any other interested person as directed by the court. |
| 284 | (e) If no objections are filed and the court is satisfied |
| 285 | with the evidentiary support for restoration, the court shall |
| 286 | enter an order of restoration of rights which were delegated to |
| 287 | a guardian advocate and which the person with a developmental |
| 288 | disability may now exercise. |
| 289 | (f) At the conclusion of a hearing, the court shall enter |
| 290 | an order denying the suggestion or restoring all or some of the |
| 291 | rights that were delegated to the guardian advocate. If only |
| 292 | some rights are restored to the person with a developmental |
| 293 | disability, the court shall enter amended letters of guardian |
| 294 | advocacy. |
| 295 | (g) If only some rights are restored to the person with a |
| 296 | developmental disability, the order must state which rights are |
| 297 | restored and amended letters of guardian advocacy shall be |
| 298 | issued by the court. The guardian advocate shall amend the |
| 299 | current plan as required under chapter 744 if personal rights |
| 300 | are restored to the person with a developmental disability. The |
| 301 | guardian advocate shall file a final accounting as required |
| 302 | under chapter 744 if all property rights are restored to the |
| 303 | person with a developmental disability. The guardian advocate |
| 304 | must file the amended plan or final accounting within 60 days |
| 305 | after the order restoring rights and amended letters of guardian |
| 306 | advocacy are issued. A copy of the reports shall be served upon |
| 307 | the person with a developmental disability and the attorney for |
| 308 | the person with a developmental disability. |
| 309 | Section 2. Paragraph (h) of subsection (3) of section |
| 310 | 393.13, Florida Statutes, is amended to read: |
| 311 | 393.13 Treatment of persons with developmental |
| 312 | disabilities.-- |
| 313 | (3) RIGHTS OF ALL PERSONS WITH DEVELOPMENTAL |
| 314 | DISABILITIES.--The rights described in this subsection shall |
| 315 | apply to all persons with developmental disabilities, whether or |
| 316 | not such persons are clients of the agency. |
| 317 | (h) Persons with developmental disabilities shall have a |
| 318 | right to consent to or refuse treatment, subject to the powers |
| 319 | of a guardian advocate appointed pursuant to s. 393.12 or a |
| 320 | guardian appointed pursuant to provisions of s. 393.12(2)(a) or |
| 321 | chapter 744. |
| 322 | Section 3. This act shall take effect July 1, 2008. |
| 323 |
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| 324 |
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| 325 | ----------------------------------------------------- |
| 326 | T I T L E A M E N D M E N T |
| 327 | Remove the entire title and insert: |
| 328 | A bill to be entitled |
| 329 | An act relating to guardian advocates for persons with |
| 330 | developmental disabilities; amending s. 393.12, F.S.; |
| 331 | requiring the court to conduct determination of incapacity |
| 332 | of persons with developmental disabilities and appointment |
| 333 | of guardian advocates in separate proceedings; revising |
| 334 | conditions relating to venue for appointment of guardian |
| 335 | advocates; providing that the guardian advocate need not |
| 336 | be represented by an attorney unless required by the court |
| 337 | or the guardian advocate is delegated certain rights |
| 338 | regarding property; limiting applicability to certain |
| 339 | proceedings relating to appointment and supervision of |
| 340 | guardian advocates; requiring the petition to include the |
| 341 | relationship of the proposed guardian advocate to certain |
| 342 | providers; modifying the persons to whom a notice of the |
| 343 | filing of the petition must be given to include next of |
| 344 | kin, the health care surrogate designated to execute an |
| 345 | advance directive, and the agent under durable power of |
| 346 | attorney; establishing a timeframe for appointment of |
| 347 | counsel and modifying who may be appointed as counsel to a |
| 348 | person with a developmental disability; providing |
| 349 | conditions for the court to appoint attorneys; requiring |
| 350 | court proceedings and orders to consider advance |
| 351 | directives for health care and durable powers of attorney; |
| 352 | requiring the court's order to provide the name and |
| 353 | reasons for the selection of the guardian advocate; |
| 354 | providing a process for restoration of rights for the |
| 355 | person with a developmental disability; providing for the |
| 356 | petitioner to submit evidentiary support to the court; |
| 357 | providing for a hearing if no evidentiary support is |
| 358 | available; amending s. 393.13, F.S.; conforming a cross- |
| 359 | reference; providing an effective date. |
| 360 |
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