The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: SB 446
INTRODUCER: Senator Simon
SUBJECT: Supported Decisionmaking Authority
DATE: January 29, 2024 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Collazo Cibula JU Favorable
2. Hall Tuszynski CF Favorable
3. Collazo Twogood RC Favorable
I. Summary:
SB 446 explicitly incorporates the concepts of supported decision-making (SDM) and SDM
agreements into state law. SDM is a tool that allows people with disabilities to retain their
decision-making capacity by choosing supporters to help them make choices, instead of relying
upon court-appointed guardians or guardian advocates to make choices for them.
In summary, the bill:
 Amends the statute governing the appointment of guardian advocates for persons with
developmental disabilities to require:
o Courts to consider the specific needs and abilities of individuals when delegating
decision-making tasks.
o Petitions and court orders to identify and assess the sufficiency of guardian advocacy
alternatives like SDM.
 Amends the powers of attorney statute to authorize the granting of SDM agreements as a
form of a power of attorney.
 Creates a statute defining, authorizing, and regulating SDM agreements.
 Amends statutes governing adjudications of incapacity and the appointment of guardians to:
o Require petitions to state whether alleged incapacitated persons use assistance, including
SDM, and if so, why it is insufficient for them to exercise their rights.
o Authorize examining committee members to facilitate, when requested by appointed
counsel, communication between supporters and allegedly incapacitated persons.
o Clarify that suggestions of capacity must address whether the ward has the ability to
exercise removed rights on his or her own or with appropriate assistance.
 Amends the statute regulating the development of an individual education plan (IEP) for the
purpose of accommodating students with disabilities in public schools, to include SDM
agreements as one method by which students may provide informed consent to allow his or
her parents to continue to participate in educational decisions.
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II. Present Situation:
Guardianship
If a court finds that a person does not have the ability to safely manage the things that belong to
him or her, or the ability to meet his or her basic health, safety, and self-care needs, the court will
rule that this person is incapacitated.1 In many cases, after a court decides that a person is
incapacitated, it will choose someone else to make some or all the decisions for the incapacitated
person. This is called a guardianship.2
Being placed in a guardianship results in the loss of an individual’s right to make his or her own
life choices. The rights that a person can lose include the right to contract, vote, travel, marry,
work, consent to treatment, sue or defend lawsuits, choose living arrangements, make decisions
about their social life, have a driver’s license, personally apply for benefits, and manage money
or property.3
Guardianships must be specific to the abilities and needs of the individual and should not be any
more restrictive than necessary.4 Consequently, there are different types of guardianships under
state law. They include:5
 Preneed guardian.6
 Voluntary guardianship.7
 Emergency temporary guardianship.8
 Limited guardianship.9
 Guardian advocate for individuals who have a developmental disability.10
 Guardian advocate for individuals receiving mental health treatment.11
 Full (i.e. plenary) guardianship.12
The powers and duties of a court-appointed guardian include, but are not limited to:
 Filing an initial plan and annual reports.13
 Making provision for the medical, mental, rehabilitative, and personal care of the person.14
 Making residential decisions on behalf of the person.15
1
See generally Part V, Ch. 744, F.S.
2
See id.
3
See 744.1012(1), F.S.; see also Disability Rights Florida, Types of Guardianship, available at https://disabilityrightsflorida.
org/disability-topics/disability_topic_info/types_of_guardianship (last visited Jan. 12, 2024).
4
Section 744.1012(2), F.S.; see also Disability Rights Florida, Types of Guardianship, available at https://disabilityrights
florida.org/disability-topics/disability_topic_info/types_of_guardianship (last visited Jan. 12, 2024).
5
See generally Disability Rights Florida, Types of Guardianship, available at https://disabilityrightsflorida.org/disability-
topics/disability_topic_info/types_of_guardianship (last visited Jan. 12, 2024).
6
Sections 744.3045 and 744.3046, F.S.
7
Section 744.341, F.S.
8
Section 744.3031, F.S.
9
Section 744.441, F.S.; see also s. 744.102(9)(a), F.S. (defining “limited guardian”).
10
Sections 744.3085 and 393.12, F.S.
11
Sections 744.3085 and 394.4598, F.S.
12
Section 744.441(1), F.S.; see also s. 744.102(9)(b), F.S. (defining “plenary guardian”).
13
Section 744.361(6)-(7), F.S.
14
Section 744.361(13)(f), F.S.
15
Section 744.361(13)(h), F.S.
BILL: SB 446 Page 3
 Advocating on behalf of the person in institutional and other residential settings.16
 Making financial decisions on behalf of the person.17
Any resident of the state who is 18 years old and of sound mind is qualified to act as a
guardian.18 Additionally, a non-resident may serve if he or she is related to the person with a
developmental disability by blood, adoption, or law.19 Certain individuals, however, cannot be
appointed to act as a guardian.20
Guardians must file an initial guardianship report with the court within 60 days after
appointment.21 The initial guardianship report must consist of an initial guardianship plan,22
which must include certain specified information for the person for whom the guardianship is
being established. For example, the initial guardianship plan must include information regarding
the provision of medical, mental, or personal care services for the welfare of the person, as well
as the place and kind of residential setting best suited for the needs of the person.23
Guardians must also file an annual guardianship report with the court.24 The annual guardianship
report must be filed within 90 days after the last day of the anniversary month that the letters of
guardianship were signed, and the plan must cover the coming fiscal year, ending on the last day
in such anniversary month. The annual guardianship report must include an annual guardianship
plan25 containing information regarding the residence of the person for whom the guardianship
has been established; the medical and mental health conditions, treatment, and rehabilitation
needs of the person; the social condition of the person; and a list of any preexisting orders not to
resuscitate, or preexisting advance directives.26
Incapacity
The term “incapacitated person” means 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.27
The process to determine incapacity and appoint a guardian begins with the filing of a petition in
the appropriate circuit court. The petition must be served on, and read to, the alleged
incapacitated person. Notice and copies of the petition must also be provided to the attorney for
the alleged incapacitated person and served on all next of kin identified in the petition.28
16
Section 744.361(13)(i), F.S.
17
Section 744.361(12), F.S.
18
Section 744.309(1), F.S.
19
Section 744.309(2), F.S.
20
See generally ss. 744.309(3), (6), F.S.
21
Sections 744.361(6) and 744.362(1), F.S.
22
Section 744.362(1), F.S.
23
See s. 744.363(1)(a)-(f), F.S.
24
Section 744.367(1), F.S.
25
Section 744.367(3)(a), F.S.
26
See generally s. 744.3675, F.S.
27
Section 744.102(12), F.S.
28
Section 744.331(1), F.S.
BILL: SB 446 Page 4
At hearing, the partial or total incapacity of the person must be established by clear and
convincing evidence.29 After finding that a person is incapacitated with respect to the potential
exercise of one or more rights, the court must enter a written order of incapacity. A person is
deemed incapacitated only as to those rights specified in the court’s order.30 If the order provides
that the person is incapable of exercising delegable rights (described below), the court must next
consider whether there are any alternatives to guardianship which will sufficiently address the
incapacitated person’s problems. If not, a guardian will be appointed.31
Rights of Incapacitated Persons
A person who has been determined to be incapacitated retains certain rights, regardless of the
determination of incapacity, including (among others) the right to be treated humanely and with
dignity and respect; the right to be protected against abuse, neglect, and exploitation; the right to
receive visitors and communicate with others; and the right to privacy.32
Certain rights may be removed from a person by an order determining incapacity, but not
delegated to a guardian. They include the right to marry (if the right to enter into a contract has
been removed, the right to marry is subject to court approval); the right to vote; the right to
personally apply for government benefits; the right to have a driver license; the right to travel;
and the right to seek or retain employment.33
Additionally, certain other “delegable” rights may be removed from a person by an order
determining incapacity, and also delegated to a guardian. They include the rights to:
 Contract.
 Sue and defend lawsuits.
 Apply for government benefits.
 Manage property or to make any gift or disposition of property.
 Determine his or her residence.
 Make health care decisions.
 Make decisions about his or her social environment or other social aspects of his or her life.34
Advance Directives
State law defines an advance directive as a witnessed, oral statement or written instruction that
expresses a person’s desires about any aspect of his or her future health care, including the
designation of a health care surrogate, a living will, or an anatomical gift.35 Designation of each
of these can serve different purposes and have their own unique requirements and specifications
under the law.36
29
Section 744.331(5)(c), F.S.
30
Section 744.331(6), F.S.
31
Section 744.331(6)(b), F.S.
32
See s. 744.3215(1)(a)-(o), F.S. (specifying all retained rights).
33
Section 744.3215(2)(a)-(f), F.S.
34
Section 744.3215(3)(a)-(g), F.S.
35
Section 765.101(1), F.S.
36
See id.
BILL: SB 446 Page 5
One type of advance directive, an “order not to resuscitate” or a “do not resuscitate order,”
results in the withholding of cardiopulmonary resuscitation from an individual if the order is
presented to the health care professional treating the patient.37 For the order to be valid, it must
be on the yellow form adopted by the Department of Health, signed by the patient’s physician
and by the patient, or if the patient is incapacitated, the patient’s health care surrogate or proxy,
court-appointed guardian, or agent under a durable power of attorney.38
A power of attorney is a writing that grants authority to an agent to act in the place of the
principal.39 A “durable” power of attorney is a kind of power of attorney that is not terminated by
the principal’s incapacity.40 Among many other things, a durable power of attorney may be used
to allow another person to make health care decisions on behalf of an incapacitated principal.41
Guardian Advocates
A “guardian advocate” is a person appointed by a written order of the court to represent a person
with developmental disabilities.42 A “developmental disability” means a disorder or syndrome
that is attributable to 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.43
Guardian advocacy is a circuit court process for family members, caregivers, or friends of
individuals with a developmental disability to obtain the legal authority to act on their behalf if:
 The person lacks the decision-making ability to do some, but not all, of the decision-making
tasks necessary to care for his or her person or property; or
 The person has voluntarily petitioned for the appointment of a guardian advocate.44
State law recognizes the appointment of a guardian advocate as a less restrictive alternative to
guardianship.45 A guardian advocate can be appointed without having to declare the person with
a developmental disability incapacitated.46 The process of becoming a guardian advocate of a
person with a developmental disability does not require the hiring of an attorney, although during
37
See Fla. Admin. Code R. 64J-2.018(1).
38
Section 401.45(3), F.S.; see also Fla. Admin. Code R. 64J-2.018(1)-(3).
39
Section 709.2102(9), F.S.
40
Section 709.2102(4), F.S.; see also s. 709.2104 (specifying that a power of attorney is durable if it contains the words:
“This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter
709, Florida Statutes,” or similar words that show the principal’s intent that the authority conferred is exercisable
notwithstanding the principal’s subsequent incapacity).
41
See id.; see also The Florida Bar, Consumer Pamphlet: Florida Power of Attorney, About the Power of Attorney, available
at https://www.floridabar.org/public/consumer/pamphlet13/#about (last visited Jan. 13, 2024).
42
Sections 393.063(20), F.S.; see also s. 393.12, F.S. (regulating the appointment of guardian advocates for persons with
developmental disabilities).
43
Section 393.063(11), F.S.
44
See s. 393.12(2)(a), F.S.; see also Eighteenth Judicial Circuit, Seminole County, Florida, Florida Guardian Advocate Law
and Information (Jul. 2017), at 1, available at https://flcourts18.org/docs/sem/Florida_Guardian_Advocacy_Law_and_
information_Guide.pdf (last visited Jan. 13, 2024).
45
Section 744.3085, F.S.
46
Section 393.12(2)(a), F.S.
BILL: SB 446 Page 6
the proceedings the court will appoint an attorney for the person with the developmental
disability to ensure that his or her best interests are protected.47
If the person lacks the capacity to make any decisions about his or her care, it may be more
appropriate for the court to appoint a plenary guardian who is authorized to act on the person’s
behalf in all matters. The process of appointing a plenary guardian requires the court to
determine that the person is incapacitated. Additionally, the person petitioning to become a
plenary guardian must have an attorney.48
A guardian advocate for a person with a developmental disability has the same powers, duties,
and responsibilities required of a guardian under the guardianship statute or as defined by court
order issued under the statute governing the appointment of guardian advocates.49
The qualifications to serve as a guardian advocate are the same as those required of any guardian
under the guardianship statute.50 The court will also consider the wishes expressed by a
developmentally disabled person as to whom will be appointed as his or her guardian advocate.51
A guardian advocate need not be the caregiver of the person with a disability.52
Supported Decision-making
Generally
Supported decision-making (SDM) is a tool that allows people with disabilities to retain their
decision-making capacity by choosing supporters to help them make choices.53 SDM assumes
that people commonly seek advice and guidance with respect to decision-