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: CS/CS/SB 1098
INTRODUCER: Children, Families, and Elder Affairs Committee, Judiciary Committee and Senator
Burton
SUBJECT: Withholding or Withdrawal of Life-prolonging Procedures
DATE: March 29, 2023 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Collazo Cibula JU Fav/CS
2. Delia Cox CF Fav/CS
3. Collazo Twogood RC Favorable
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/SB 1098 regulates the authority of a court-appointed guardian to consent to withhold or
withdraw life-prolonging procedures, or sign an order not to resuscitate, on behalf of a ward. The
bill allows the ward’s wishes to be followed without delay, but still requires court approval to
withhold or withdraw life-prolonging procedures in some cases.
Specifically, the bill creates a statute that:
 Authorizes a guardian of a ward’s person to petition a court for authority to consent to
withhold or withdraw life-prolonging procedures, if the guardian lacks sufficient authority to
consent or if the proposal is in conflict with the wishes of the ward or the ward’s next of kin.
 Requires the court to hold a hearing on the petition if it has been notified of an objection or
conflict, or if the court has insufficient information to determine whether the criteria for
granting the requested authority has been met.
 Requires the court to hold a preliminary hearing within 72 hours after the petition is filed, if a
hearing is required and exigent circumstances are alleged, and either rule on the requested
relief immediately or conduct an evidentiary hearing within 4 days.
 Allows a guardian without vested authority to consent to the withholding or withdrawal of
life-prolonging procedures, without a hearing or prior court approval, if:
o The ward is in a hospital and the ward’s primary physician and at least one other
consulting physician document that the ward’s death is imminent;
BILL: CS/CS/SB 1098 Page 2
o The guardian has notified known next of kin as to the intent to withhold or withdraw life-
prolonging procedures and there is no known objection to the withholding or
withdrawing of life-prolonging procedures by the ward, the next of kin, or any other
interested person, and the hospital ethics committee has met and agrees with the
guardian’s proposal.
The bill also amends existing statutes to:
 Require initial and annual guardianship plans to state whether an advance directive or an
order to not resuscitate listed therein remains in effect, or state the extent to which their
authority to make health care decisions has been transferred by the court to the guardian.
 Provide that a surrogate under an advance directive, or an agent under a durable power of
attorney, who has retained the authority to make health care decisions under the initial and
annual guardianship plans may exercise that authority without additional approval by the
court.
 Provide that any authority to make health care decisions that has been transferred by the
court to the guardian may be exercised by the guardian, consistent with the advance directive
or the durable power of attorney, and without additional approval by the court, unless there is
a conflict over or objection to the guardian’s proposed exercise of that authority.
The bill takes effect on July 1, 2023.
II. Present Situation:
Guardians and Guardianship
A “guardian” is someone who has been given the legal duty and authority to care for another
person or his or her property because of that person’s infancy, disability, or incapacity.1 A
“guardianship” is a trust relationship designed to protect vulnerable members of society who do
not have the ability to protect themselves.2 The person for whom a guardian is appointed in a
guardianship is called a “ward.”3
Once a guardian is appointed by the court, the guardian serves as a surrogate decision-maker and
makes personal or financial decisions, or both, for the ward.4 Guardianships are generally
disfavored because the ward loses his or her individual and civil rights; a guardian may be
appointed only if the court finds there is no less restrictive alternative to a guardianship.5
There are two main forms of guardianship: guardianship over the person, and guardianship over
the property – each of which may be limited or plenary. For adults, a guardianship may be
established when a person has demonstrated that he or she is unable to manage some or all of his
1
BLACK’S LAW DICTIONARY (11th ed., 2019).
2
See Id.
3
Section 744.102(22), F.S.
4
See s. 744.102(9), F.S.
5
Section 744.1012(1)-(2), 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 March 11, 2023).
BILL: CS/CS/SB 1098 Page 3
or her own affairs.6 If the adult is competent, this can be accomplished voluntarily. However, if
an individual’s mental competence is in question, an involuntary guardianship may be
established through an adjudication of incompetence, which is determined by a court-appointed
examination committee.7
A guardianship must be specific to the abilities and needs of the individual and should never be
more restrictive than necessary.8 Consequently, state law recognizes different types of guardians
and guardianship arrangements, including9 preneed guardians;10 voluntary guardianship;11
emergency temporary guardianship;12 limited guardianship;13 guardian advocates for individuals
who have a developmental disability14 or for individuals receiving mental health treatment;15 and
full (i.e. plenary) guardianship.16
Powers and Duties of Court-Appointed Guardians
The powers and duties of a court-appointed guardian may include:
 Filing an initial plan and annual reports.17
 Making provision for the medical, mental, rehabilitative, and personal care of the person.18
 Making residential decisions on behalf of the person.19
 Advocating on behalf of the person in institutional and other residential settings.20
 Making financial decisions on behalf of the person.21
On the other hand, certain actions require specific authority from the court before a guardian may
take them.22 In particular, a guardian may not:
 Commit the ward to a facility, institution, or licensed service provider without formal
placement proceedings pursuant to state law.
 Consent on behalf of the ward to the performance on the ward of any experimental
biomedical or behavioral procedure, or to the participation by the ward in any biomedical or
behavioral experiment. The court may permit such performance or participation only if it is:
o Of direct benefit to, and is intended to preserve the life of or prevent serious impairment
to, the mental or physical health of the ward; or
6
See generally, s. 744.102(9), F.S. A plenary guardian exercises all delegable rights and powers of the ward after a court has
determined that the ward lacks the capacity to perform all of the tasks necessary to care for his or her person or property.
Section 744.102(9)(b), F.S.
7
See generally, s. 744.102(12), F.S.; see also ch. 744, pt. V, F.S. (regarding the adjudication of incapacity and appointment
of guardians).
8
Section 744.1012(2), F.S.; see also Disability Rights Florida, supra note 5.
9
See generally Disability Rights Florida, supra note 5.
10
Sections 744.3045 and 744.3046, F.S.
11
Section 744.341, F.S.
12
Section 744.3031, F.S.
13
Section 744.441(1), F.S.; see also s. 744.102(9)(a), F.S. (defining “limited guardian”).
14
Sections 744.3085 and 393.12, F.S.
15
Sections 744.3085 and 394.4598, F.S.
16
Section 744.441(1), F.S.; see also s. 744.102(9)(b), F.S. (defining “plenary guardian”).
17
Section 744.361(6)-(7), F.S.
18
Section 744.361(13)(f), F.S.
19
See s. 744.361(13)(h), F.S.
20
Section 744.361(13)(i), F.S.
21
See s. 744.361(12), F.S.
22
See ss. 744.3725 and 744.3215(4), F.S.
BILL: CS/CS/SB 1098 Page 4
o Intended to assist the ward with developing or regaining his or her abilities.
 Initiate a petition for dissolution of marriage for the ward.
 Consent on behalf of the ward to termination of the ward’s parental rights.
 Consent on behalf of the ward to the performance of a sterilization or abortion procedure on
the ward.23
State courts have long recognized the relationship between a guardian and his or her ward is a
fiduciary one.24 A fiduciary relationship exists between two persons when one of them is under a
duty to act or to give advice for the benefit of the other, upon matters within the scope of that
relationship.25 Such duties include, but are not limited to, duties to refrain from self-dealing, of
loyalty, to not take unfair advantage of the ward and to act in the best interest of the ward, and to
disclose material facts.26
State law also imposes specific duties upon guardians consistent with the basic duties of a
fiduciary, including protecting and preserving the property of the ward as well as his or her
overall physical and social health.27 For example, as noted above, guardians must file initial28
and annual guardianship reports,29 and an annual accounting of the ward’s property, with the
court;30 such reports may be deemed evidence of a guardian’s faithful execution of his or her
fiduciary duties.31
An overriding concern of reviewing courts is that guardian fiduciaries not breach their duties to
their wards or abuse their positions. If a guardian breaches his or her fiduciary duty, the court
must take action to protect the ward and the ward’s assets.32
Initial and Annual Guardianship Plans
Guardians must file an initial guardianship report with the court. It must be filed within 60 days
after appointment and, for a guardian of the person, include an initial guardianship plan.33 Initial
guardian plans must contain certain specified information regarding the ward. Among other
things, the initial plan must include information regarding the provision of medical, mental, or
personal care services for the welfare of the ward; the kind of residential setting best suited for
the needs of the ward; the provision of social and personal services for the welfare of the ward;
and a list of any preexisting orders not to resuscitate or advance directives.34
23
Id.
24
See, e.g., In re Guardianship of Lawrence v. Norris, 563 So. 2d 195, 197 (Fla. 1st DCA 1990) (noting that the guardian in
that case was found to have violated his fiduciary duty as a guardian); Denarii Systems, LLC v. Tellez, 2011 WL 13322664
(S.D. Fla. 2011) (recognizing that fiduciary duties may be created by legal proceedings, such as in the case of a guardian and
ward).
25
Doe v. Evans, 814 So. 2d 370, 374 (Fla. 2002) (internal citations omitted).
26
Capital Bank v. MVP, Inc. 644 So. 2d 515, 520 (Fla. 3d DCA 1994).
27
See generally s. 744.361, F.S.
28
Section 744.362, F.S.
29
Section 744.367, F.S.
30
Section 744.3678, F.S.
31
See generally s. 744.368, F.S. (directing the clerk of the circuit court to review each initial and annual guardianship report
to ensure it contains specified information about the ward).
32
Section 744.446(5), F.S.
33
Sections 744.361(6) and 744.362(1), F.S.
34
See s. 744.363(1)(a)-(f), F.S.
BILL: CS/CS/SB 1098 Page 5
Guardians must also file an annual guardianship report with the court. The annual guardianship
report must be filed within 90 days after the last day of the anniversary month of appointment.
The annual plan must cover the coming fiscal year, ending on the last day in the anniversary
month.35 Similar to the initial guardianship report, the annual guardianship report for a guardian
of the person must include an annual guardianship plan36 containing information regarding the
medical and mental health conditions, treatment, and rehabilitation needs of the ward; the
residence of the ward; the social condition of the ward; and a list of any preexisting orders not to
resuscitate or advance directives.37
Determining Incapacity
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 allegedly
incapacitated person. Notice and copies of the petition must also be provided to the attorney for
the allegedly incapacitated person and served on all next of kin identified in the petition.38
At hearing, the partial or total incapacity of the person must be established by clear and
convincing evidence.39 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.40 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.41
Rights of Incapacitated Persons
A person who has been determined to be incapacitated retains certain rights, regardless of the
determination of incapacity, including 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.42
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.43
35
Section 744.367(1), F.S.
36
Section 744.367(1) and (3)(a), F.S.
37
Section 744.3675, F.S.
38
Section 744.331(1), F.S.
39
Section 744.331(5)(c), F.S.
40
Section 744.331(6), F.S.
41
Section 744.331(6)(b), F.S.
42
See s. 744.3215(1)(a)-(o), F.S. (specifying all retained rights).
43
Section 744.3215(2)(a)-(f), F.S.
BILL: CS/CS/SB 1098 Page 6
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.
 Consent to medical and mental health treatment.
 Make decisions about his or her social environment or other social aspects of his or her life.44
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.45 Designation of each
of these can serve different purposes and have their own unique requirements and specifications
under the law.46
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.47 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