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; removing a provision requiring the inclusion of
20certain information relating to the right to be
21represented by counsel in the notice of the filing of the
22petition; establishing a timeframe for appointment of
23counsel and modifying who may be appointed as counsel to a
24person with a developmental disability; providing
25conditions for the court to appoint attorneys; requiring
26court proceedings and orders to consider advance
27directives for health care and durable powers of attorney;
28requiring the court's order to provide the name and
29reasons for the selection of the guardian advocate;
30providing a process for restoration of rights for the
31person with a developmental disability; providing for the
32petitioner to submit evidentiary support to the court;
33providing for a hearing if no evidentiary support is
34available; amending s. 393.13, F.S.; conforming a cross-
35reference; providing an effective date.
36
37Be It Enacted by the Legislature of the State of Florida:
38
39     Section 1.  Section 393.12, Florida Statutes, is amended to
40read:
41     393.12  Capacity; appointment of guardian advocate.--
42     (1)  CAPACITY.--
43     (a)  The issue of capacity shall be separate and distinct
44from a determination of the appropriateness of admission to
45nonresidential services or residential care for a condition of
46developmental disabilities. A No person with a developmental
47disability may not shall be presumed incapacitated solely by
48reason of his or her acceptance in nonresidential services or
49admission to residential care and may not; nor shall any such
50person be denied the full exercise of all legal rights
51guaranteed to citizens of this state and of the United States.
52     (b)  The determination of incapacity issue of capacity of a
53person with a developmental disability and the appointment of a
54guardian must be conducted disabilities shall be determined in a
55separate proceeding according to the procedures and requirements
56of chapter 744 and the Florida Probate Rules.
57     (2)  APPOINTMENT OF A GUARDIAN ADVOCATE.--
58     (a)  Conditions.--A circuit probate court may appoint a
59guardian advocate, without an adjudication of incapacity, for a
60person with developmental disabilities, if the person lacks the
61decisionmaking ability capacity to do some, but not all, of the
62decisionmaking tasks necessary to care for his or her person or,
63property, or estate or if the person has voluntarily petitioned
64for the appointment of a guardian advocate. Except as otherwise
65specified, the proceeding shall be governed by the Florida Rules
66of Probate Civil Procedure.
67     (b)  A person who is being considered for appointment or is
68appointed as a guardian advocate need not be represented by an
69attorney unless required by the court or if the guardian
70advocate is delegated any rights regarding property other than
71the right to be the representative payee for government
72benefits. This paragraph applies only to proceedings relating to
73the appointment of a guardian advocate and the court's
74supervision of a guardian advocate and is not an exercise of the
75Legislature's authority pursuant to s. (2)(a), Art. V of the
76State Constitution.
77     (3)(b)  PETITION.--A petition to appoint a guardian
78advocate for a person with a developmental disability may be
79executed by an adult person who is a resident of this state. The
80petition must shall be verified and must shall:
81     (a)1.  State the name, age, and present address of the
82petitioner and his or her relationship to the person with a
83developmental disability disabilities;
84     (b)2.  State the name, age, county of residence, and
85present address of the person with a developmental disability
86disabilities;
87     (c)3.  Allege that the petitioner believes that the person
88needs a guardian advocate and specify the factual information on
89which such belief is based;
90     (d)4.  Specify the exact areas in which the person lacks
91the decisionmaking ability capacity to make informed decisions
92about his or her care and treatment services or to meet the
93essential requirements for his or her physical health or safety;
94     (e)5.  Specify the legal disabilities to which the person
95is subject; and
96     (f)6.  State the name of the proposed guardian advocate,
97the relationship of that person to the person with a
98developmental disability; the relationship that the proposed
99guardian advocate had or has with a provider of health care
100services, residential services, or other services to the person
101with a developmental disability; disabilities, and the reason
102why this person should be appointed. If a willing and qualified
103guardian advocate cannot be located, the petition shall so
104state.
105     (4)(c)  NOTICE.--
106     (a)1.  Notice of the filing of the petition must shall be
107given to the person with a developmental disability, individual
108and his or her parent or parents. The notice shall be given both
109verbally and in writing in the language of the person and in
110English. Notice must shall also be given to the next of kin of
111the person with a developmental disability as defined in chapter
112744, any health care surrogate designated for the person with a
113developmental disability pursuant to an advance directive under
114chapter 765, any agent designated for the person with a
115developmental disability under a durable power of attorney, and
116such other persons as the court may direct. A copy of the
117petition to appoint a guardian advocate must shall be served
118with the notice.
119     (b)2.  The notice must shall state that a hearing will be
120held shall be set to inquire into the capacity of the person
121with a developmental disability disabilities to exercise the
122rights enumerated in the petition. The notice must shall also
123state the date of the hearing on the petition.
124     3.  The notice shall state that the individual with
125developmental disabilities has the right to be represented by
126counsel of his or her own choice and that if the individual
127cannot afford an attorney, the court shall appoint one.
128     (5)(d)  COUNSEL.--Within 3 days after a petition has been
129filed, the court shall appoint an attorney to represent a person
130with a developmental disability who is the subject of a petition
131to appoint a guardian advocate. The person with a developmental
132disability may substitute his or her own attorney for the
133attorney appointed by the court.
134     (a)  If the court appoints the attorney:
135     1.  The court shall appoint a private attorney who shall be
136selected from the attorney registry compiled pursuant to s.
13727.40.
138     2.  The attorney must have completed a minimum of 8 hours
139of education in guardianship. The court may waive this
140requirement for an attorney who has served as a court-appointed
141attorney in guardian advocate proceedings or as an attorney of
142record for guardian advocates for at least 3 years.
143     (b)  An attorney representing a person with a developmental
144disability may not also serve as the guardian advocate of the
145person, as counsel for the guardian advocate, or as counsel for
146the person petitioning for the appointment of a guardian
147advocate.
148     1.  Every person with developmental disabilities who is the
149subject of a petition to appoint a guardian advocate shall be
150represented by counsel.
151     2.  Every person with developmental disabilities has the
152right to be represented by counsel of his or her own choice. If
153the person cannot afford an attorney, the court shall appoint
154one to represent the person. The court shall appoint counsel if
155no appearance has been filed within 10 working days of the
156hearing.
157     (6)(e)  HEARING.--
158     (a)1.  Upon the filing of the petition to appoint a
159guardian advocate, the court shall set a date for holding a
160hearing on upon which the petition shall be heard. The A hearing
161must on the petition shall be held as soon as practicable after
162the petition is filed, but reasonable delay for the purpose of
163investigation, discovery, or procuring counsel or witnesses may
164shall be granted.
165     (b)2.  The hearing must be held shall be conducted at the
166time and place specified in the notice of hearing and must. The
167hearing shall be conducted in a manner consistent with due
168process.
169     (c)3.  The person with a developmental disability
170individual has the right to be present at the hearing and shall
171be present unless good cause to exclude the individual can be
172shown. The person individual has the right to remain silent, to
173present evidence, to call and cross-examine witnesses, and to
174have the hearing open or closed, as the person may choose.
175     (d)4.  At the hearing, the court shall receive and consider
176all reports relevant to the person's disability disabilities,
177including, but not limited to, the person's current individual
178family or individual support plan, the individual education
179plan, and other professional reports documenting the condition
180and needs of the person individual.
181     (e)5.  The Florida Evidence Code, chapter 90, applies shall
182apply at the hearing. The burden of proof must shall be by clear
183and convincing evidence.
184     (7)  ADVANCE DIRECTIVES FOR HEALTH CARE AND DURABLE POWER
185OF ATTORNEY.--In each proceeding in which a guardian advocate is
186appointed under this section, the court shall determine whether
187the person with a developmental disability has executed any
188valid advance directive under chapter 765 or a durable power of
189attorney under chapter 709.
190     (a)  If the person with a developmental disability has
191executed an advance directive or durable power of attorney, the
192court must consider and find whether the documents will
193sufficiently address the needs of the person with a
194developmental disability for whom the guardian advocate is
195sought. A guardian advocate may not be appointed if the court
196finds that the advance directive or durable power of attorney
197provides an alternative to the appointment of a guardian
198advocate which will sufficiently address the needs of the person
199with a developmental disability.
200     (b)  If an interested person seeks to contest an advance
201directive or durable power of attorney executed by a person with
202a developmental disability, the interested person shall file a
203verified statement. The verified statement shall include the
204factual basis for the belief that the advance directive or
205durable power of attorney is invalid or does not sufficiently
206address the needs of the person for whom a guardian advocate is
207sought or that the person with authority under the advance
208directive or durable power of attorney is abusing his or her
209power.
210     (c)  If an advance directive exists, the court shall
211specify in its order and letters of guardian advocacy what
212authority, if any, the guardian advocate shall exercise over the
213person's health care surrogate. Pursuant to the grounds listed
214in s. 765.105, the court, upon its own motion, may, with notice
215to the health care surrogate and any other appropriate parties,
216modify or revoke the authority of the health care surrogate to
217make health care decisions for the person with a developmental
218disability. For purposes of this section, the term "health care
219decision" has the same meaning as in s. 765.101.
220     (d)  If any durable power of attorney exists, the court
221shall specify in its order and letters of guardian advocacy what
222powers of the agent, if any, are suspended and granted to the
223guardian advocate. The court, however, may not suspend any
224powers of the agent unless the court determines the durable
225power of attorney is invalid or there is an abuse by the agent
226of the powers granted.
227     (8)(f)  COURT ORDER determining the appointment of a
228guardian advocate.--If the court finds the person with a
229developmental disability disabilities requires the appointment
230of a guardian advocate, the court shall enter a written order
231appointing the guardian advocate and containing determining the
232need for a guardian advocate. The written order shall contain
233the findings of facts and conclusions of law on which the court
234made its decision, including. The court shall make the following
235findings:
236     (a)1.  The nature and scope of the person's lack of
237decisionmaking ability incapacity;
238     (b)2.  The exact areas in which the individual lacks
239decisionmaking ability capacity to make informed decisions about
240care and treatment services or to meet the essential
241requirements for his or her physical health and safety;
242     (c)3.  The specific legal disabilities to which the person
243with developmental disability disabilities is subject; and
244     (d)  The name of the person selected as guardian advocate
245and the reasons for the court's selection; and
246     (e)4.  The powers, and duties, and responsibilities of the
247guardian advocate, including bonding of the guardian advocate,
248as provided in governed by s. 744.351.
249     (9)(g)  LEGAL RIGHTS.--A person with a developmental
250disability disabilities for whom a guardian advocate has been
251appointed retains all legal rights except those that which have
252been specifically granted to the guardian advocate.
253     (10)(h)  POWERS AND DUTIES OF GUARDIAN ADVOCATE.--A
254guardian advocate for a person with a developmental disability
255disabilities shall be a person or corporation qualified to act
256as guardian, with the same powers, duties, and responsibilities
257required of a guardian under chapter 744 or those defined by
258court order under this section. However, a guardian advocate may
259not be required to file an annual accounting under s. 744.3678
260if the court determines that the person with a developmental
261disability disabilities receives income only from Social
262Security benefits and the guardian advocate is the person's
263representative payee for the benefits.
264     (11)(3)  COURT COSTS.--In all proceedings under this
265section, no court costs may not shall be charged against the
266agency.
267     (12)  SUGGESTION OF RESTORATION OF RIGHTS.--Any interested
268person, including the person with a developmental disability,
269may file a suggestion of restoration of rights with the court in
270which the guardian advocacy is pending. The suggestion must
271state that the person with a developmental disability is
272currently capable of exercising some or all of the rights that
273were delegated to the guardian advocate and provide evidentiary
274support for the filing of the suggestion. Evidentiary support
275includes, but is not limited to, a signed statement from a
276medical, psychological, or psychiatric practitioner by whom the
277person with a developmental disability was evaluated and which
278supports the suggestion for the restoration. If the petitioner
279is unable to provide evidentiary support due to the lack of
280access to such information or reports, the petitioner may state
281a good faith basis for the suggestion for the restoration of
282rights without attaching evidentiary support. The court shall
283immediately set a hearing if no evidentiary support is attached
284to inquire of the petitioner and guardian advocate as to the
285reason and enter such orders as are appropriate to secure the
286required documents. The person with a disability and the
287person's attorney shall be provided notice of the hearing.
288     (a)  Within 3 days after the filing of the suggestion,
289counsel shall be appointed for the person with a developmental
290disability as set forth in subsection (5).
291     (b)  The clerk of the court shall immediately send notice
292of the filing of the suggestion to the person with a
293developmental disability, the guardian advocate, the attorney
294for the person with a developmental disability, the attorney for
295the guardian advocate, if any, and any other interested person
296designated by the court. Formal notice shall be served on the
297guardian advocate. Informal notice may be served on other
298persons. Notice need not be served on the person who filed the
299suggestion.
300     (c)  Any objections to the suggestion must be filed within
30120 days after service of the notice. If an objection is timely
302filed, or if the evidentiary support suggests that restoration
303of rights is not appropriate, the court shall set the matter for
304hearing. The hearing shall be conducted as set forth in s.
305744.1095. The court, at the hearing, shall consider all reports
306and testimony relevant to the person's decisionmaking abilities
307at the hearing, including, but not limited to, the person's
308current individual family plan or individual support plan, the
309individual education plan, and other professional reports that
310document the condition and needs of the person.
311     (d)  Notice of the hearing and copies of the objections
312shall be served upon the person with a developmental disability,
313the attorney for the person with a developmental disability, the
314guardian advocate, the attorney for the guardian advocate, the
315next of kin of the person with a developmental disability, and
316any other interested person as directed by the court.
317     (e)  If no objections are filed and the court is satisfied
318with the evidentiary support for restoration, the court shall
319enter an order of restoration of rights which were delegated to
320a guardian advocate and which the person with a developmental
321disability may now exercise.
322     (f)  At the conclusion of a hearing, the court shall enter
323an order denying the suggestion or restoring all or some of the
324rights that were delegated to the guardian advocate. If only
325some rights are restored to the person with a developmental
326disability, the court shall enter amended letters of guardian
327advocacy.
328     (g)  If only some rights are restored to the person with a
329developmental disability, the order must state which rights are
330restored and amended letters of guardian advocacy shall be
331issued by the court. The guardian advocate shall amend the
332current plan as required under chapter 744 if personal rights
333are restored to the person with a developmental disability. The
334guardian advocate shall file a final accounting as required
335under chapter 744 if all property rights are restored to the
336person with a developmental disability. The guardian advocate
337must file the amended plan or final accounting within 60 days
338after the order restoring rights and amended letters of guardian
339advocacy are issued. A copy of the reports shall be served upon
340the person with a developmental disability and the attorney for
341the person with a developmental disability.
342     Section 2.  Paragraph (h) of subsection (3) of section
343393.13, Florida Statutes, is amended to read:
344     393.13  Treatment of persons with developmental
345disabilities.--
346     (3)  RIGHTS OF ALL PERSONS WITH DEVELOPMENTAL
347DISABILITIES.--The rights described in this subsection shall
348apply to all persons with developmental disabilities, whether or
349not such persons are clients of the agency.
350     (h)  Persons with developmental disabilities shall have a
351right to consent to or refuse treatment, subject to the powers
352of a guardian advocate appointed pursuant to s. 393.12 or a
353guardian appointed pursuant to provisions of s. 393.12(2)(a) or
354chapter 744.
355     Section 3.  This act shall take effect July 1, 2008.
356


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