Florida Senate - 2021 SB 1010



By Senator Gruters





23-00214B-21 20211010__
1 A bill to be entitled
2 An act relating to supported decision-making; amending
3 s. 393.12, F.S.; requiring that petitions submitted in
4 support of appointment of a guardian advocate state
5 the petitioner’s efforts to use alternatives to
6 guardianship before seeking such appointment;
7 requiring courts to determine whether a person with a
8 developmental disability has executed a supported
9 decision-making agreement in proceedings in which a
10 guardian advocate is appointed; requiring courts to
11 specify in orders any portion of an agreement which is
12 suspended by the court; prohibiting such suspensions
13 unless the court makes certain determinations;
14 amending s. 744.102, F.S.; defining the term
15 “alternative to guardianship”; amending s. 744.3201,
16 F.S.; requiring that petitions submitted in support of
17 a determination of incapacity state the petitioner’s
18 efforts to use alternatives to guardianship before
19 seeking such a determination; amending s. 744.334,
20 F.S.; deleting the definition of the term
21 “alternatives to guardianship”; amending s. 744.3675,
22 F.S.; revising requirements for annual guardianship
23 plans; creating ch. 746, F.S., entitled “Supported
24 Decision-Making”; providing a directive to the
25 Division of Law Revision; creating s. 746.101, F.S.;
26 providing a short title; creating s. 746.102, F.S.;
27 providing legislative findings; creating s. 746.103,
28 F.S.; defining terms; creating s. 746.104, F.S.;
29 prohibiting adults from entering into supported
30 decision-making agreements unless specified conditions
31 are met; providing a presumption of capacity for
32 adults; specifying that the manner in which an adult
33 with a disability communicates with others is not
34 grounds for a court to determine that the adult is
35 incapable of managing his or her affairs; prohibiting
36 an adult’s execution of a supported decision-making
37 agreement from being used as evidence of his or her
38 incapacity; specifying that the execution of such
39 agreements does not preclude the ability of
40 decisionmakers to act independently of the agreement
41 or of their supporters; specifying that decisionmakers
42 are considered to have capacity even if capacity is
43 achieved by receiving decisionmaking assistance;
44 authorizing a decisionmaker to make, change, and
45 revoke a supported decision-making agreement even if
46 he or she does not have the capacity to independently
47 manage his or her health care, legal matters, and
48 financial affairs; creating s. 746.105, F.S.;
49 authorizing adults with disabilities to enter into
50 supported decision-making agreements with supporters;
51 requiring and authorizing supporters to perform
52 specified actions under such agreements; authorizing
53 adults with disabilities who are under guardianship or
54 guardian advocacy to enter into supported decision
55 making agreements under certain conditions; providing
56 that supported decision-making agreements may refer to
57 and be used in conjunction with other legal documents;
58 authorizing decisionmakers to designate a supporter to
59 act as a preneed guardian; creating s. 746.106, F.S.;
60 providing requirements for execution of a supported
61 decision-making agreement; creating s. 746.107, F.S.;
62 providing for the duration and termination of
63 supported decision-making agreements; creating s.
64 746.108, F.S.; authorizing supporters to assist
65 decisionmakers with obtaining certain information;
66 requiring decisionmakers to provide specific consent
67 before a supporter provides such assistance; providing
68 duties for supporters relating to such information;
69 creating s. 746.109, F.S.; specifying elements of
70 supported decision-making agreements; specifying
71 provisions that may be included in such agreements;
72 creating s. 746.1011, F.S.; providing a suggested form
73 for supported decision-making agreements; creating s.
74 746.1012, F.S.; requiring that decisions and requests
75 communicated with the assistance of a supporter be
76 recognized as decisions and requests of the
77 decisionmaker; creating s. 746.1013, F.S.; providing
78 that persons who are provided with supported decision
79 making agreements may rely on the agreements;
80 providing that a person is not subject to criminal or
81 civil liability and has not engaged in professional
82 misconduct for certain acts and omissions under
83 specified conditions; providing immunity from certain
84 actions to certain health care providers and public
85 and private entities, custodians, and organizations,
86 under certain conditions; requiring educational
87 agencies and institutions to allow supporters to
88 participate in certain school functions and meetings
89 and have access to educational records under certain
90 conditions; providing construction; creating s.
91 746.1014, F.S.; requiring public schools to provide
92 information about supported decision-making agreements
93 under certain conditions; requiring public schools to
94 ensure that certain informational materials include
95 information relating to supported decision-making;
96 requiring public schools to provide information and
97 training to specified staff members; amending s.
98 744.2003, F.S.; conforming a cross-reference;
99 providing an effective date.
100
101 Be It Enacted by the Legislature of the State of Florida:
102
103 Section 1. Subsections (3) and (7) of section 393.12,
104 Florida Statutes, are amended to read:
105 393.12 Capacity; appointment of guardian advocate.—
106 (3) PETITION.—A petition to appoint a guardian advocate for
107 a person with a developmental disability may be executed by an
108 adult person who is a resident of this state. The petition must
109 be verified and must do all of the following:
110 (a) State the name, age, and present address of the
111 petitioner and his or her relationship to the person with a
112 developmental disability.;
113 (b) State the name, age, county of residence, and present
114 address of the person with a developmental disability.;
115 (c) Allege that the petitioner believes that the person
116 needs a guardian advocate and specify the factual information on
117 which such belief is based.;
118 (d) State the petitioner’s efforts to use alternatives to
119 guardianship, as defined in s. 744.102, before seeking the
120 appointment of a guardian advocate, including:
121 1. The alternatives to guardianship which were considered
122 and implemented;
123 2. If alternatives to guardianship were not considered or
124 implemented, the reason why alternatives to guardianship were
125 not considered or implemented; and
126 3. Any reasons why alternatives to guardianship are
127 insufficient to meet the needs of the person with a
128 developmental disability and allow that person to exercise his
129 or her own rights.
130 (e) Specify the exact areas in which the person lacks the
131 decisionmaking ability to make informed decisions about his or
132 her care and treatment services or to meet the essential
133 requirements for his or her physical health or safety.;
134 (f)(e) Specify the legal disabilities to which the person
135 is subject.; and
136 (g)(f) State the name of the proposed guardian advocate
137 and, the relationship of that person to the person with a
138 developmental disability; the relationship that the proposed
139 guardian advocate had or has with a provider of health care
140 services, residential services, or other services to the person
141 with a developmental disability; and the reason why this person
142 should be appointed. If a willing and qualified guardian
143 advocate cannot be located, the petition shall so state.
144 (7) ADVANCE DIRECTIVES FOR HEALTH CARE, AND DURABLE POWER
145 OF ATTORNEY, AND SUPPORTED DECISION-MAKING AGREEMENTS.—In each
146 proceeding in which a guardian advocate is appointed under this
147 section, the court shall determine whether the person with a
148 developmental disability has executed any valid advance
149 directive under chapter 765, or a durable power of attorney
150 under chapter 709, or a supported decision-making agreement
151 under chapter 746.
152 (a) If the person with a developmental disability has
153 executed an advance directive, a or durable power of attorney,
154 or a supported decision-making agreement, the court must
155 consider and find whether the documents will sufficiently
156 address the needs of the person with a developmental disability
157 for whom the guardian advocate is sought. A guardian advocate
158 may not be appointed if the court finds that the advance
159 directive, or durable power of attorney, or supported decision
160 making agreement provides an alternative to the appointment of a
161 guardian advocate which will sufficiently address the needs of
162 the person with a developmental disability.
163 (b) If an interested person seeks to contest an advance
164 directive, a or durable power of attorney, or a supported
165 decision-making agreement executed by a person with a
166 developmental disability, the interested person shall file a
167 verified statement. The verified statement shall include the
168 factual basis for the belief that the advance directive, or
169 durable power of attorney, or supported decision-making
170 agreement is invalid or does not sufficiently address the needs
171 of the person for whom a guardian advocate is sought or that the
172 person with authority under the advance directive, or durable
173 power of attorney, or supported decision-making agreement is
174 abusing his or her power.
175 (c) If an advance directive exists, the court shall specify
176 in its order and letters of guardian advocacy what authority, if
177 any, the guardian advocate shall exercise over the person’s
178 health care surrogate. Pursuant to the grounds listed in s.
179 765.105, the court, upon its own motion, may, with notice to the
180 health care surrogate and any other appropriate parties, modify
181 or revoke the authority of the health care surrogate to make
182 health care decisions for the person with a developmental
183 disability. For purposes of this section, the term “health care
184 decision” has the same meaning as in s. 765.101.
185 (d) If any durable power of attorney exists, the court
186 shall specify in its order and letters of guardian advocacy what
187 powers of the agent, if any, are suspended and granted to the
188 guardian advocate. The court, however, may not suspend any
189 powers of the agent unless the court determines the durable
190 power of attorney is invalid or there is an abuse by the agent
191 of the powers granted.
192 (e) If a supported decision-making agreement exists, the
193 court must specify in its order and letters of guardian advocacy
194 any part of the agreement which is suspended; however, the court
195 may not suspend any part of the supported decision-making
196 agreement unless it determines that the supported decision
197 making agreement is invalid or there is an abuse by any of the
198 supporters.
199 Section 2. Present subsections (1) through (22) of section
200 744.102, Florida Statutes, are redesignated as subsections (2)
201 through (23), respectively, and a new subsection (1) is added to
202 that section, to read:
203 744.102 Definitions.—As used in this chapter, the term:
204 (1) ”Alternative to guardianship” means an approach to
205 meeting a person’s needs which preserves more of his or her
206 rights than would the appointment of a guardian. Alternatives to
207 guardianship include, but are not limited to, an advance
208 directive as defined in s. 765.101, a durable power of attorney
209 as provided in chapter 709, a representative payee under 42
210 U.S.C. s. 1007, a trust instrument as defined in s. 736.0103,
211 the designation of a health care surrogate as provided in
212 chapter 765, or a supported decision-making agreement as
213 provided in chapter 746.
214 Section 3. Subsection (2) of section 744.3201, Florida
215 Statutes, is amended to read:
216 744.3201 Petition to determine incapacity.—
217 (2) The petition must be verified and must:
218 (a) State the name, age, and present address of the
219 petitioner and his or her relationship to the alleged
220 incapacitated person;
221 (b) State the name, age, county of residence, and present
222 address of the alleged incapacitated person;
223 (c) Specify the primary language spoken by the alleged
224 incapacitated person, if known;
225 (d) Allege that the petitioner believes the alleged
226 incapacitated person to be incapacitated and specify the factual
227 information on which such belief is based and the names and
228 addresses of all persons known to the petitioner who have
229 knowledge of such facts through personal observations;
230 (e) State the name and address of the alleged incapacitated
231 person’s attending or family physician, if known;
232 (f) State which rights enumerated in s. 744.3215 the
233 alleged incapacitated person is incapable of exercising, to the
234 best of petitioner’s knowledge. If the petitioner has
235 insufficient experience to make such judgments, the petition
236 must so state; and
237 (g) State the names, relationships, and addresses of the
238 next of kin of the alleged incapacitated person, so far as are
239 known, specifying the dates of birth of any who are minors; and
240 (h) State the petitioner’s efforts to use alternatives to
241 guardianship, as defined in s. 744.102, before seeking a
242 determination of incapacity, including:
243 1. The alternatives to guardianship which were considered
244 and implemented;
245 2. If alternatives to guardianship were not considered or
246 implemented, the reason why alternatives to guardianship were
247 not considered or implemented; and
248 3. Any reasons why alternatives to guardianship are
249 insufficient to meet the needs of the alleged incapacitated
250 person and allow that person to exercise his or her own rights.
251 Section 4. Subsection (1) of section 744.334, Florida
252 Statutes, is amended to read:
253 744.334 Petition for appointment of guardian or
254 professional guardian; contents.—
255 (1) Every petition for the appointment of a guardian shall
256 be verified by the petitioner and shall contain statements, to
257 the best of petitioner’s knowledge and belief, showing the name,
258 age, residence, and post office address of the alleged
259 incapacitated person or minor; the nature of her or his
260 incapacity, if any; the extent of guardianship desired, either
261 plenary or limited; the residence and post office address of the
262 petitioner; the names and addresses of the next of kin of the
263 alleged incapacitated person or minor, if known to the
264 petitioner; the name of the proposed guardian and the reasons
265 why she or he should be appointed guardian; whether the proposed
266 guardian is a professional guardian; the relationship and
267 previous relationship of the proposed guardian to the alleged
268 incapacitated person or minor; any other type of guardianship
269 under part III of this chapter or alternatives to guardianship
270 that the alleged incapacitated person or minor has designated or
271 is in currently or has been in previously; the reasons why a
272 guardian advocate under s. 744.3085 or other alternatives to
273 guardianship are insufficient to meet the needs of the alleged
274 incapacitated person or minor; and the nature and value of
275 property subject to the guardianship. The petition must state
276 whether a willing and qualified guardian cannot be located. As
277 used in this subsection, the term “alternatives to guardianship”
278 means an advance directive as defined in s. 765.101, a durable
279 power of attorney as provided in chapter 709, a representative
280 payee under 42 U.S.C. s. 1007, or a trust instrument as defined
281 in s. 736.0103.
282