HOUSE OF REPRESENTATIVES STAFF ANALYSIS BILL #: HB 73 Supported Decisionmaking Authority SPONSOR(S): Tant and others TIED BILLS: IDEN./SIM. BILLS: SB 446 REFERENCE ACTION ANALYST STAFF DIRECTOR or BUDGET/POLICY CHIEF 1) Children, Families & Seniors Subcommittee 15 Y, 0 N Lloyd Brazzell 2) Civil Justice Subcommittee 17 Y, 0 N Mathews Jones 3) Health & Human Services Committee 18 Y, 0 N Lloyd Calamas SUMMARY ANALYSIS Supported decisionmaking authority (SDM) is a person-driven decisionmaking model that empowers a person with a disability (the decisionmaker) to make life choices with help from a supporter, while the values, priorities, and wishes of the decisionmaker drive the process. The supporter identified in the SDM agreement helps the person with a disability understand and explore options, to know risks and benefits associated with the options, to receive recommendations, and to independently exercise his or her rights with appropriate assistance based on his or her unique needs and abilities. The SDM agreement model does not provide the designated agent, advisor, or supporter the authority to bind or act on behalf of the adult with a disability on any subject matter. HB 73 creates an SDM agreement under Florida’s Power of Attorney chapter, chapter 709. The bill permits an adult with disabilities to seek an SDM agreement. Such an agreement authorizes an agent, advisor, or supporter to: Assist the decisionmaker in understanding the options, responsibilities, and consequences of life decisions. Assist the decisionmaker in accessing, collecting, and obtaining information and records relevant to a life decision including, but not limited to, medical, psychological, financial, educational, or treatment records, to which the decisionmaker is entitled, from any person or entity. Assist the decisionmaker in exercising his or her rights. Assist the decisionmaker in communicating his or her decisions. Access the decisionmaker's personal information, to the extent authorized by the SDM agreement. HB 73 also requires the circuit court to consider the specific needs and abilities of a person with developmental disabilities when determining whether to approve a request for a guardian advocate. When a guardian advocate court order is issued, the order must address what other alternatives to the guardian advocate were considered and why such alternatives were not sufficient. For petitions to determine incapacity, the bill adds a requirement to address whether the alleged incapacitated person needs assistance to exercise his or her rights, including through an SDM, and whether or not this level of assistance is appropriate or insufficient for the situation. HB 73 also permits the examining committee, which determines incapacity, to allow another individual to assist in communications with the individual with a disability, when requested by the court-appointed counsel for the alleged incapacitated person. HB 73 does not appear to have a fiscal impact on state or local governments. The bill has an effective date of July 1, 2024. This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives . STORAGE NAME: h0073e.HHS DATE: 2/9/2024 FULL ANALYSIS I. SUBSTANTIVE ANALYSIS A. EFFECT OF PROPOSED CHANGES: Background Developmental Disabilities A developmental disability is statutorily defined as a disorder or syndrome that is attributable to an intellectual disability, cerebral palsy, autism, spina bifida, Down syndrome, Phelan-McDermid syndrome, or Prader-Willi syndrome; that manifests before the age of 18; and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely. 1 Guardianship When a court deems an individual legally incompetent, 2 a third party or a guardian may be appointed to make decisions on that individual’s behalf.3 Current state law defines a “guardian” as a person who has been appointed by the court to act on behalf of a ward’s person, property, or both. 4 The process to determine an individual’s incapacity and the possible appointment of a guardian begins with a verified petition. The petition must provide detailed, factual information supporting the reasons the petitioner believes the individual to be incapacitated, including the specific rights or activities the alleged incapacitated person is incapable of managing on their own behalf. 5 Once a person has been found to be incapacitated, a specific guardianship order is issued with details on specific restrictions, the role of the guardian, and the name of the guardian.6 The order must: Be consistent with the ward’s welfare and safety; Clearly state the rights removed from the ward and delegated to the guardian; Be the least restrictive and appropriate alternative; and Reserve to the ward the right to make decisions in all matters commensurate with his or her ability to do so.7 Any resident of the state who is 18 years old and of sound mind is qualified to act as a guardian. 8 A nonresident of this state may act as a guardian of state resident if they are related to the person by blood, adoption, or law.9 Individuals who are disqualified include those who have been convicted of felonies, those who are incapacitated by illness, or are otherwise unable to assist another with the execution of their duties.10 The exclusion of these individuals from acting as guardians, is a reflection of either their own untrustworthiness from past behavior or their inability to take of themselves fully. A guardian coordinates and monitors his or her ward’s services and needs, including his or her funds, as directed by the guardianship court order.11 The ward’s funds and property belong to the ward and do not become the property of the guardian. These funds must be kept separate from and accounted for independently from any of the guardian’s funds. 1 S. 393.063(9), F.S. 2 Current state law defines an “incapacitated person” to mean a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person. See s. 744.102(12), F.S. 3 Martinis, J., Supported decisionmaking: Protecting rights, ensuring choices, BIFOCAL: A Journal of the ABA Commission on Law and Aging, 36(5), pgs. 107-110 (2015), available at Supported Decision-Making: Protecting Rights, Ensuring Choices (americanbar.org) (last visited December 2, 2023). 4 S. 744.102(9), F.S. 5 S. 744.3201, F.S. 6 SS. 744.3371-.345, F.S. 7 S. 744.2005, F.S. 8 S. 744.309(1), F.S. 9 S. 744.309(2), F.S. 10 S. 744.309,(3), F.S. 11 National Guardianship Association, What is Guardianship?, What Is Guardians hip? | National Guardianship Association (last visited December 2, 2023). STORAGE NAME: h0073e.HHS PAGE: 2 DATE: 2/9/2024 Guardianships can be grouped into different types based on the level of authority granted to the guardian: Limited or partial guardianship12 occurs when an individual has been deemed incapable of making decisions in only specific areas of life, and a guardian has the authority to decide for the individual in those specific areas only. The grants of legal authority granted or not granted to a guardian are specially noted in the court order. Full or plenary guardianship13 occurs when the court has found that an individual lacks capacity to make all legal decisions, and the guardian is authorized to make all decisions for the ward. 14 Once awarded guardianship, a guardian may be further categorized based on how he or she reaches decisions for his or her ward. A guardian may substitute his or her own understanding of the ward’s wishes. These substitute decisionmakers generally follow one of two standards: A substituted judgement standard means the guardian makes decisions he or she believes the ward would have wanted, if capable. A best interest judgement standard means the guardian makes decisions based on what the guardian determines to be in the ward’s best interest. 15 The guardian, as fiduciary, must: Act within the scope of the authority granted by the court and as provided by law; Act in good faith; Act in a manner in the ward's best interests under the circumstances; and Use any special skills or expertise the guardian possesses when acting on behalf of the ward.16 Additionally, the fiduciary relationship between the guardian and the ward may not be used for the guardian’s private gain, other than the remuneration for fees and expenses provided by law. 17 Should a 12 See S. 744.102(9)(a), F.S.: A “Limited guardian” means a guardian who has been appointed by the court to exercise the legal rights and powers specifically designated by court order entered after the court has found that the ward lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person or property, or after the person has voluntarily petitioned for app ointment of a limited guardian. 13 See S. 744.102(9)(b), F.S.; “Plenary guardian” means a person who has been appointed by the court to exercise all delegable legal rights and powers of the ward after the court has found that the ward lacks the capacity to perform all of the tasks necessar y to care for his or her person or property. 14 Blanck, P, and Martinis, J, “The right to make choices”: The National Resource Center for Supported Decisionmaking , Inclusion, 3, pgs. 24-33 (2015), available at; The Right to Make Choices: The National Resource Center for Supported Decision -Making | National Resource Center (supporteddecisionmaking.org) (last visited December 2, 2023). 15 Shalowitz, DI, et al., The accuracy of surrogate decision makers: A systematic review, Archives of Internal Medicine, 166(5), pgs. 493-497 (2006), available at The Accuracy of Surrogate Decision Makers: A Systematic Review | End of Life | JAMA Internal Medicine | JAMA Network (last visited December 2, 2023). 16 S. 744.361(1), F.S. 17 S.744.446, F.S. STORAGE NAME: h0073e.HHS PAGE: 3 DATE: 2/9/2024 guardian breach his or her fiduciary duty to the ward, the court is authorized to intervene.18 The following chart details some of the guardian’s powers, either with or without court approval: Examples of Powers That May Be Exercised by a Guardian Upon Court Approval19 Without Court Approval20 Enter into contracts that are appropriate for, Retain assets owned by the ward. and in the best interest of, the ward. Receive assets from fiduciaries or other sources. Perform, compromise, or refuse Insure the assets of the ward’s estate against performance of a ward’s existing contracts. damage, loss, and liability. Alter the ward’s property ownership Pay taxes and assessments on the ward’s interests, including selling, mortgaging, or property. leasing any real property (including the Pay reasonable living expenses for the ward, homestead), personal property, or any taking into consideration the ward’s current interest therein. finances. Borrow money to be repaid from the Pay incidental expenses in the administration of property of the ward or the ward’s estate. the ward’s estate. Renegotiate, extend, renew, or modify the Prudently invest liquid assets belonging to the terms of any obligation owing to the ward. ward. Prosecute or defend claims or proceedings Sell or exercise stock subscription or conversion in any jurisdiction for the protection of the rights belonging to the ward. ward’s estate. Consent to the reorganization, consolidation, Exercise any option contained in any policy merger, dissolution, or liquidation of a corporation of insurance payable to the ward. or other business enterprise of the ward. Make gifts of the ward’s property to Employ, pay, or reimburse persons, including members of the ward’s family in estate and attorneys, auditors, investment advisers, care income tax planning. managers, or agents, even if they are associated Pay reasonable funeral, interment, and with the guardian, to advise or assist the grave marker expenses for the ward. guardian in the performance of his or her duties. Consent on behalf of the ward to a sterilization or abortion procedure on the ward.21 The best estimate of the total number of American adults living under a guardianship or conservatorship comes from a 2011 report which utilized limited data from participating states with centralized or computer-based accounting mechanisms for counting such documents. In this widely cited report, the authors claim that at least 1.3 million adults were living under either a guardianship or conservatorship, and courts controlled over $50 billion in assets of those under these same guardianships or conservatorships. Other researchers have estimated that approximately 1.5 million people in the United States are subject to guardianship at any one time. 22 Alternatives to Guardianship Historically, it has been the general intent in Florida to apply the least restrictive forms of guardianship to assist those who may be partially or fully incapacitated. In October 2016, Chief Justice Jorge Labarga of the Florida Supreme Court established a Guardianship Workgroup to better protect vulnerable people who are subject to guardianship and guardian advocacy. The workgroup was charged with examining “judicial procedures and best practices pertaining to guardianship,” focusing on 18 S. 744.446(4), F.S. 19 S. 744.441, F.S. 20 S. 744.444, F.S. 21 S. 744.3215, F.S. 22 Van Duizend, R., The Implications of an Aging Population on the State Courts, “NCSC, Future Trends in State Courts, p. 76 (Williamsburg, VA: NCSC, 2008 (2011), available at: http://www.guardianship.org/reports/Uekert_Van_Duizend_Adult_Guardianships.pdf, (last visited December 2, 2023). STORAGE NAME: h0073e.HHS PAGE: 4 DATE: 2/9/2024 topics including, but not limited to, the use of least restrictive alternatives that address specific functional limitations.23 The workgroup recommended requiring a petition form for the appointment of a guardian which would include a description of these alternatives to guardianship. The form would also include an explanation as to why one of these alternatives might be an insufficient option to this guardianship request as it pertained to the specific individual. The workgroup further recommended expanding the types of alternatives that must be addressed during a guardianship petition. The report offered alternatives to guardianship, including SDM, durable powers of attorney, trusts, banking services, advance directives, medical proxies, and representative payees.24 Additionally, the workgroup recommended the petitioner acknowledge the existence of a designation of a preneed guardian, if one exists, and to identify his or her efforts in determining whether a designation exists in the petition for appointment of a guardian.25 Current Florida law recognizes several types of guardianships which cover all areas of decisionmaking for both adults and minors.26 For individuals with capacity,27 an Advance Directive document can be written ahead of an expected need and express an individual’s desires or provide decisionmaking authority to a trusted individual.28 In either event, the individual making the advance directive must have the mental capacity to understand what he or she is doing at the time the directive is signed. Durable Power of Attorney Similar to an Advance Directive, a Durable Power of Attorney (POA) is a special type of written advance directive. An individual or grantor must demonstrate the capacity to understand the transfer of his or her decisionmaking rights to another individual or agent at the time of the document’s execution. The rights granted can be as broad or as limited as the law allows and can include health care decisions. A POA is called “durable” when it is intended to continue even if the grantor becomes incapacitated.