HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 1119 Withholding or Withdrawal of Life-prolonging Procedures
SPONSOR(S): Health & Human Services Committee, Children, Families & Seniors Subcommittee, Berfield
TIED BILLS: IDEN./SIM. BILLS: SB 1098
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Children, Families & Seniors Subcommittee 17 Y, 0 N, As CS Osborne Brazzell
2) Health & Human Services Committee 18 Y, 0 N, As CS Osborne Calamas
SUMMARY ANALYSIS
When an individual is unable to make legal decisions regarding his or her person or property, a court may
appoint a guardian to act on his or her behalf; a person served by a guardian is referred to as a ward, and a
guardian may oversee a ward’s person or property or both. When a guardian is given full (plenary)
guardianship, the guardian has authority to make all decisions for a ward, including where the ward lives,
whether to sell the ward’s property, and consenting to health care treatment. In Florida, circuit court judges
appoint guardians and oversee guardianships, as governed by ch. 744, F.S.
Competent adults may formulate, in advance, preferences regarding a course of health care treatment in the
event that injury or illness causes severe impairment or loss of decision-making capacity, known as an
advance directive. Advance directives may include the designation of a health care surrogate, a person chosen
by the principal of the advance directive to make health care decisions should the principal become unable to
do so. One form of advance directive is a “do-not-resuscitate order,” (DNRO) which indicates that if a person
experiences cardiac or pulmonary arrest, then medical professionals are not to provide resuscitative
treatments. These orders are most often used by those experiencing a terminal or end-stage condition, or in a
persistent vegetative state. Since 2020, Florida law has required guardians obtain court approval prior to
signing a DNRO for a ward in all instances.
CS/CS/HB 1119 creates s. 744.4431, F.S., relating to guardianship power regarding life-prolonging
procedures. This section requires a professional guardian to petition the court for the authority to withhold or
withdraw life-prolonging procedures prior to making such decisions, with certain exceptions. The bill outlines
the information required in the petition, the circumstances in which a court hearing is required, and the
timeframe a hearing must be held and a ruling reached. The bill specifies circumstances in which a
professional guardian may withdraw or withhold life-prolonging procedures or execute a DNRO for a ward
without additional court approval.
The bill requires that a guardian file a ward’s advanced directive with the court upon discovery, regardless of
when the advanced directive is discovered. At such time, the court must determine whether the advance
directive is an alternative to guardianship and the appropriate delegation of decision-making authority between
the guardian and health care surrogate. Such information on advance directives and existing DNROs, and the
date such directives and orders were signed, must be included in the initial and annual guardianship plans.
The bill allows health care surrogates and agents under a durable power of attorney, who retain authority to
make health care decisions for a ward, to exercise such authority, including the withholding or withdrawal of
life-prolonging procedures, without additional approval by the court. Additionally, the bill allows professional
guardians to make decisions consistent with an advance directive or power of attorney without additional court
approval when such decision-making authority has been expressly delegated to the guardian by the court.
The bill has an indeterminate, insignificant negative fiscal impact on the state courts. The bill has no fiscal
impact on local governments.
The bill provides an effective date of July 1, 2023.
FULL ANALYSIS
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h1119c.HHS
DATE: 4/20/2023
 I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Guardianship
When an individual is unable to make legal decisions regarding his or her person or property, a
guardian may be appointed to act on his or her behalf. A guardian is someone who has been appointed
by the court to act on behalf of a person who has been adjudicated incapacitated, thereafter referred to
as a ward. A guardian may oversee a ward’s person or property, or both. 1
A ward’s civil and/or legal rights are transferred to the guardian so that the guardian may make
decisions on the ward’s behalf.2 The rights which are transferred to the guardian are determined by the
court, and are highly dependent on the individual situation with the intention of preserving an
individual’s rights whenever possible. Guardianship is considered the most restrictive form of protection
and supervision of an individual as it inherently entails the removal of certain rights. 3 In recognition of
the highly restrictive nature of guardianship, the Legislature has specified its intent that the courts utiliz e
the least restrictive form of guardianship appropriate for the incapacitated persons, and that alternatives
to guardianship and less restrictive means of assistance be explored before appointing a guardian. 4
The process to determine an individual’s incapacity and the subsequent appointment of a guardian
begins with a verified petition detailing the factual information supporting the reasons the petitioner
believes the individual to be incapacitated, including the rights the alleged incapacitated pers on is
incapable of exercising.5 The alleged incapacitated person is then appointed an attorney and partakes
in an examination conducted by a committee of three medical experts. 6 The committee members each
provide a report to the court including a determination of whether the individual lacks the capacity to
exercise rights, the extent of that incapacity, and the factual basis for the determination of incapacity,
as well as an evaluation of the person’s ability to retain specific rights. 7 The final determination of
incapacity is made by the court.
Once a person has been adjudicated incapacitated, the court appoints a guardian 8, and the letters of
guardianship defining the terms of the guardianship are issued. 9 The order appointing a guardian must
be consistent with the ward’s welfare and safety, must be the least restrictive option that is appropriate,
and must reserve to the ward the right to make decisions in all matters commensurate with his or her
ability to do so.10
Relationship Between Guardian and Ward
1 S. 744.102(9), F.S.
2 Guardianship Improvement Task Force. Final Report: January 2022. Available at
https://www.guardianshipimprovementtaskforce.com/report/ (last visited April 19, 2023).
3 Id.
4 S. 744.1012(2), F.S.
5 S. 744.3201, F.S.
6 S. 744.331, F.S. The committee is appointed by the court. One member of the committee must be a psychiatrist or other physici an.
The remaining committee members must be either a psychologist, gerontologist, psychiatrist, physician, advanced practice registered
nurse, registered nurse, licensed social worker, a person with an advanced degree in gerontology from an accredited instituti on of
higher education, or any other person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise
the court in the form of an expert opinion.
7 S. 744.331(3)(g), F.S.
8 S. 744.2005, F.S
9 S. 744.345, F.S.
10 S. 744.2005(3), F.S.
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 The relationship between a guardian and his or her ward is a fiduciary one. 11 A fiduciary relationship
exists between two persons when one of them is under a duty to act for or to give advice for the benefit
of another upon matters within the scope of that relationship.12 The guardian, as fiduciary, must:13
 Act within the scope of the authority granted by the court and as provided by law;
 Act in good faith;
 Not act in a manner contrary to the ward's best interests; and
 Use any special skills or expertise the guardian possesses when acting on behalf of the ward.
The fiduciary relationship between the guardian and the ward may not be used for the private gain of
the guardian other than the remuneration for fees and expenses provided by law.14 As such, the
guardian must act in the best interest of the ward and carry out his or her responsibilities in an informed
and considered manner. Should a guardian breach his or her fiduciary duty to the ward, the court is
obligated to intervene to protect the ward and the ward’s interests.15
A guardian’s decision-making authority is either “limited” or “plenary” in nature.16 A limited guardian is
appointed to exercise the specific legal rights and powers designated by the court after the ward has
been found to lack 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 appointment of a limited guardian. 17
A person for whom a limited guardian has been appointed retains all legal rights except those that have
been specifically granted to the guardian by the court.18 A plenary guardian is 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 necessary to care for his or her person or property. 19
Appointment of a Guardian
In Florida, a guardian is appointed to a ward by the circuit court. Any of the following persons or entities
may be appointed as guardian to a ward:20
 Any resident of Florida who is 18 years of age or older and has full legal rights and capacity;
 A nonresident if he or she is related to the ward by blood, marriage, or adoption;
 A trust company, a state banking corporation, or state savings association authorized and
qualified to exercise fiduciary powers in this state, or a national banking association or federal
savings and loan association authorized and qualified to exercise fiduciary powers in Florida;
 A nonprofit corporation organized for religious or charitable purposes and existing under the
laws of Florida;
 A judge who is related to the ward by blood, marriage, or adoption, or has a close relationship
with the ward or the ward’s family, and serves without compensation;
 A provider of health care services to the ward, whether direct or indirect, when the court
specifically finds that there is no conflict of interest with the ward’s best interests; or
 A for-profit corporation that meets certain qualifications, including being wholly owned by the
person who is the circuit's public guardian in the circuit where the corporate guardian is
appointed.
Appointment of a Professional Guardian
Professional guardians are any guardian who has, at any time, rendered services to three or more
wards as their guardian; however, a person serving as a guardian for two or more relatives is not
11 Lawrence v. Norris, 563 So. 2d 195, 197 (Fla. 1st DCA 1990); s. 744.361(1), F.S.
12 Doe v. Evans, 814 So. 2d 370, 374 (Fla. 2002).
13 S. 744.361, F.S.
14 S. 744.446, F.S.
15 S. 744.446(5), F.S.
16 S. 744.102(9)(a), F.S.
17 Id.
18 S. 744.2005(7), F.S.
19 S. 744.102(9)(b), F.S.
20 S. 744.309, F.S.
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 considered a professional guardian.21 Public guardians are a category of professional guardians who
may be appointed to serve individuals of limited financial means if there is no family member, friend, or
other entity willing and qualified to serve as guardian.22 Professional guardians, including public
guardians, are overseen by the Office of Public and Professional Guardians (OPPG) within the
Department of Elderly Affairs (DOEA).23 OPPG is responsible for regulating professional guardians. 24
In each case when a court appoints a professional guardian and does not use a rotation system for
such appointment, the court must make specific findings of fact stating why the person was selected as
guardian in the particular matter involved.25 The court must consider, and the findings must reference,
the following factors:26
 Whether the guardian is related by blood or marriage to the ward;
 Whether the guardian has educational, professional, or business experience relevant to the
nature of the services sought to be provided;
 Whether the guardian has the capacity to manage the financial resources involved;
 Whether the guardian has the ability to meet the requirements of the law and the unique needs
of the individual case;
 The wishes expressed by an incapacitated person as to who shall be appointed guardian;
 The preference of a minor who is age 14 or over as to who should be appointed guardian;
 Any person designated as guardian in any will in which the ward is a beneficiary; and
 The wishes of the ward’s next of kin, when the ward cannot express a preference.
Additionally, current law prohibits the court from giving preference to the appointment of a person
based solely on the fact that such person was appointed by the court to serve as an emergency
temporary guardian.27 When a professional guardian is appointed as an emergency temporary
guardian, that professional guardian may not be appointed as the permanent guardian of a ward unless
one of the next of kin of the alleged incapacitated person or the ward requests that the profess ional
guardian be appointed as permanent guardian.28 However, the court may waive this limitation if the
special requirements of the guardianship demand that the court appoint a guardian because he or she
has special talent or specific prior experience.29
A professional guardian must be registered with OPPG in order to be appointed as a guardian by the
court.30 The following are disqualified from being appointed as a guardian: 31
 A person convicted of a felony;
 A person who is incapable of discharging the duties of a guardian due to incapacity or illness, or
who is otherwise unsuitable to perform the duties of a guardian;
 A person who has been judicially determined to have committed abuse, abandonment, or
neglect against a child;
 A person who has been found guilty of, regardless of adjudication, or entered a plea of nolo
contendere or guilty to, any offense prohibited under s. 435.04, F.S.;
 A person who provides substantial services to the proposed ward in a professional or business
capacity, or a creditor of the proposed ward, if such guardian retains that previous professional
or business relationship (with exceptions);
21
S. 744.102(17), F.S.
22 S. 744.2007, F.S.
23 S. 744.2001, F.S.
24 Id.
25 S. 744.312(4)(a), F.S.
26 See s. 744.312(2)-(3), F.S.
27 S. 744.312(5), F.S. See also, s. 744.3031, F.S., an emergency temporary guardian may be appointed if prior to the formal
appointment of a guardian, there appears to be imminent danger that the physical or mental health or safety of the person will be
seriously impaired or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate acti on is taken.
28 S. 744.312(4)(b), F.S.
29 Id.
30 S. 744.2003(9), F.S.
31 S. 744.309(3), F.S.
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  A person who is in the employ of any person, agency, government, or corporation that provides
service to the proposed ward in a professional or business capacity, unless that person is the
spouse, adult child, parent, or sibling of the proposed ward or the court determines that the
potential conflict of interest is insubstantial and that the appointment would clearly be in the
proposed ward’s best interest; or
 Any other person for whom serving as guardian would constitute a conflict of interest.
Powers and Duties of the Guardian
Florida law outlines the rights which a ward retains after the appointment of a guardian,32 and those
rights which may be removed from the ward and delegated to the guardian by the court.33 Rights that
may be removed from a ward and delegated to the guardian include the right to travel, contract,
determine his or her residence, and to consent to medical and mental health treatment. 34 A guardian
may only exercise the rights which have been removed the ward and delegated to the guardian.35
The guardian has a significant amount of decision-making authority in regards to the management of a
ward’s estate. Additional