Bill Text: FL S0446 | 2024 | Regular Session | Introduced
Bill Title: Supported Decisionmaking Authority
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2024-03-04 - Laid on Table, refer to HB 73 [S0446 Detail]
Download: Florida-2024-S0446-Introduced.html
Florida Senate - 2024 SB 446
By Senator Simon
3-00860-24 2024446__
1 A bill to be entitled
2 An act relating to supported decisionmaking authority;
3 amending s. 393.12, F.S.; requiring a circuit court to
4 consider certain needs and abilities of a person with
5 a developmental disability when determining whether to
6 appoint a guardian advocate; providing requirements
7 for a petition to appoint a guardian advocate for a
8 person with a developmental disability and for a court
9 order if the court finds that such person requires
10 such appointment; amending s. 709.2201, F.S.;
11 authorizing an agent acting for a principal to grant a
12 supported decisionmaking agreement; creating s.
13 709.2209, F.S.; defining the term “supported
14 decisionmaking agreement”; prohibiting such agreement
15 from acting as a durable power of attorney;
16 authorizing specified authority to a supported
17 decisionmaking agreement; providing that certain
18 communications shall be recognized as a communication
19 of the principal under certain circumstances; amending
20 s. 744.3201, F.S.; requiring a petition to determine
21 incapacity of a person to include specified
22 information relating to the alleged incapacitated
23 person’s use of assistance; amending s. 744.331, F.S.;
24 providing requirements for an examining committee
25 member when determining the alleged incapacitated
26 person’s ability to exercise his or her rights;
27 amending s. 744.464, F.S.; authorizing a suggestion of
28 capacity to include certain capabilities of the ward;
29 amending s. 1003.5716, F.S.; revising the requirements
30 for a specified process relating to individual
31 education plans for certain students to include
32 supported decisionmaking agreements; providing an
33 effective date.
34
35 Be It Enacted by the Legislature of the State of Florida:
36
37 Section 1. Paragraph (a) of subsection (2), paragraph (a)
38 of subsection (3), and subsection (8) of section 393.12, Florida
39 Statutes, are amended to read:
40 393.12 Capacity; appointment of guardian advocate.—
41 (2) APPOINTMENT OF A GUARDIAN ADVOCATE.—
42 (a) A circuit court may appoint a guardian advocate,
43 without an adjudication of incapacity, for a person with
44 developmental disabilities, if the person lacks the
45 decisionmaking ability to do some, but not all, of the
46 decisionmaking tasks necessary to care for his or her person or
47 property or if the person has voluntarily petitioned for the
48 appointment of a guardian advocate. In determining whether to
49 appoint a guardian advocate, the court shall consider the
50 person’s unique needs and abilities, including, but not limited
51 to, the person’s ability to independently exercise his or her
52 rights with appropriate assistance, and may only delegate
53 decisionmaking tasks that the person lacks the decisionmaking
54 ability to exercise. Except as otherwise specified, the
55 proceeding shall be governed by the Florida Rules of Probate
56 Procedure.
57 (3) PETITION.—
58 (a) A petition to appoint a guardian advocate for a person
59 with a developmental disability may be executed by an adult
60 person who is a resident of this state. The petition must be
61 verified and must:
62 1. State the name, age, and present address of the
63 petitioner and his or her relationship to the person with a
64 developmental disability;
65 2. State the name, age, county of residence, and present
66 address of the person with a developmental disability;
67 3. Allege that the petitioner believes that the person
68 needs a guardian advocate and specify the factual information on
69 which such belief is based;
70 4. Specify the exact areas in which the person lacks the
71 decisionmaking ability to make informed decisions about his or
72 her care and treatment services or to meet the essential
73 requirements for his or her physical health or safety;
74 5. Specify the legal disabilities to which the person is
75 subject; and
76 6. Identify any other type of guardian advocacy or
77 alternatives to guardian advocacy that the person has
78 designated, is in currently, or has been in previously and the
79 reasons why alternatives to guardian advocacy are insufficient
80 to meet the needs of the person;
81 7. State whether the person uses assistance to exercise his
82 or her rights, including, but not limited to, supported
83 decisionmaking, and if so, why the assistance is inappropriate
84 or insufficient to allow the person to independently exercise
85 the person’s rights; and
86 8. State the name of the proposed guardian advocate, the
87 relationship of that person to the person with a developmental
88 disability; the relationship that the proposed guardian advocate
89 had or has with a provider of health care services, residential
90 services, or other services to the person with a developmental
91 disability; and the reason why this person should be appointed.
92 The petition must also state if a willing and qualified guardian
93 advocate cannot be located.
94 (8) COURT ORDER.—If the court finds the person with a
95 developmental disability requires the appointment of a guardian
96 advocate, the court shall enter a written order appointing the
97 guardian advocate and containing the findings of facts and
98 conclusions of law on which the court made its decision,
99 including:
100 (a) The nature and scope of the person’s lack of
101 decisionmaking ability;
102 (b) The exact areas in which the individual lacks
103 decisionmaking ability to make informed decisions about care and
104 treatment services or to meet the essential requirements for his
105 or her physical health and safety;
106 (c) The specific legal disabilities to which the person
107 with a developmental disability is subject;
108 (d) The identity of existing alternatives and a finding as
109 to the validity or sufficiency of such alternative to alleviate
110 the need for the appointment of a guardian advocate;
111 (e)(d) The name of the person selected as guardian advocate
112 and the reasons for the court’s selection; and
113 (f)(e) The powers, duties, and responsibilities of the
114 guardian advocate, including bonding of the guardian advocate,
115 as provided in s. 744.351.
116 Section 2. Paragraph (d) is added to subsection (2) of
117 section 709.2201, Florida Statutes, to read:
118 709.2201 Authority of agent.—
119 (2) As a confirmation of the law in effect in this state
120 when this part became effective, such authorization may include,
121 without limitation, authority to:
122 (d) If such authority is specifically limited, grant a
123 supported decisionmaking agreement as defined in s. 709.2209(1).
124 Section 3. Section 709.2209, Florida Statutes, is created
125 to read:
126 709.2209 Supported decisionmaking agreements.—
127 (1) For purposes of this section, “supported decisionmaking
128 agreement” means an agreement in which the power of attorney
129 grants an agent the authority to receive information and to
130 communicate on behalf of the principal without granting the
131 agent the authority to bind or act on behalf of the principal on
132 any subject matter.
133 (2) A supported decisionmaking agreement is not a durable
134 power of attorney under s. 709.2104. Any language of durability
135 in a supported decisionmaking agreement is of no effect.
136 (3) A supported decisionmaking agreement may only include
137 the authority to:
138 (a) Obtain information on behalf of the principal,
139 including, but not limited to, protected health information
140 under the Health Insurance Portability and Accountability Act of
141 1996, 42 U.S.C. s. 1320d, as amended; educational records under
142 the Family Educational Rights and Privacy Act of 1974, 20 U.S.C.
143 s. 1232g; or information protected under 42 U.S.C. s. 290dd-2 or
144 42 C.F.R. part 2.
145 (b) Assist the principal in communicating with third
146 parties, including conveying the principal’s communications,
147 decisions, and directions to third parties on behalf of the
148 principal.
149 (4) A communication made by the principal with the
150 assistance of or through an agent under a supported
151 decisionmaking agreement that is within the authority granted to
152 the agent may be recognized as a communication of the principal.
153 Section 4. Subsection (2) of section 744.3201, Florida
154 Statutes, is amended to read:
155 744.3201 Petition to determine incapacity.—
156 (2) The petition must be verified and must:
157 (a) State the name, age, and present address of the
158 petitioner and his or her relationship to the alleged
159 incapacitated person;
160 (b) State the name, age, county of residence, and present
161 address of the alleged incapacitated person;
162 (c) Specify the primary language spoken by the alleged
163 incapacitated person, if known;
164 (d) State whether the alleged incapacitated person uses
165 assistance to exercise his or her rights, including, but not
166 limited to, supported decisionmaking, and if so, why the
167 assistance is inappropriate or insufficient to allow the person
168 to independently exercise the person’s rights;
169 (e)(d) Allege that the petitioner believes the alleged
170 incapacitated person to be incapacitated and specify the factual
171 information on which such belief is based and the names and
172 addresses of all persons known to the petitioner who have
173 knowledge of such facts through personal observations;
174 (f)(e) State the name and address of the alleged
175 incapacitated person’s attending or family physician, if known;
176 (g)(f) State which rights enumerated in s. 744.3215 the
177 alleged incapacitated person is incapable of exercising, to the
178 best of petitioner’s knowledge. If the petitioner has
179 insufficient experience to make such judgments, the petition
180 must so state; and
181 (h)(g) State the names, relationships, and addresses of the
182 next of kin of the alleged incapacitated person, so far as are
183 known, specifying the dates of birth of any who are minors.
184 Section 5. Paragraph (e) of subsection (3) of section
185 744.331, Florida Statutes, is amended to read:
186 744.331 Procedures to determine incapacity.—
187 (3) EXAMINING COMMITTEE.—
188 (e) Each member of the examining committee shall examine
189 the person. Each examining committee member must determine the
190 alleged incapacitated person’s ability to exercise those rights
191 specified in s. 744.3215. An examining committee member may
192 allow a person to assist in communicating with the alleged
193 incapacitated person when requested by the court-appointed
194 counsel for the alleged incapacitated person and shall identify
195 the person who provided assistance and describe the nature and
196 method of assistance provided in his or her report. In addition
197 to the examination, each examining committee member must have
198 access to, and may consider, previous examinations of the
199 person, including, but not limited to, habilitation plans,
200 school records, and psychological and psychosocial reports
201 voluntarily offered for use by the alleged incapacitated person.
202 Each member of the examining committee must file his or her
203 report with the clerk of the court within 15 days after
204 appointment.
205 Section 6. Paragraph (a) of subsection (2) of section
206 744.464, Florida Statutes, is amended to read:
207 744.464 Restoration to capacity.—
208 (2) SUGGESTION OF CAPACITY.—
209 (a) Any interested person, including the ward, may file a
210 suggestion of capacity. The suggestion of capacity must state
211 that the ward is currently capable of exercising some or all of
212 the rights which were removed, including the capability to
213 independently exercise his or her rights with appropriate
214 assistance.
215 Section 7. Paragraph (d) of subsection (1) of section
216 1003.5716, Florida Statutes, is amended to read:
217 1003.5716 Transition to postsecondary education and career
218 opportunities.—All students with disabilities who are 3 years of
219 age to 21 years of age have the right to a free, appropriate
220 public education. As used in this section, the term “IEP” means
221 individual education plan.
222 (1) To ensure quality planning for a successful transition
223 of a student with a disability to postsecondary education and
224 career opportunities, during the student’s seventh grade year or
225 when the student attains the age of 12, whichever occurs first,
226 an IEP team shall begin the process of, and develop an IEP for,
227 identifying the need for transition services before the student
228 with a disability enters high school or attains the age of 14
229 years, whichever occurs first, in order for his or her
230 postsecondary goals and career goals to be identified. The plan
231 must be operational and in place to begin implementation on the
232 first day of the student’s first year in high school. This
233 process must include, but is not limited to:
234 (d) At least 1 year before the student reaches the age of
235 majority, provision of information and instruction to the
236 student and his or her parent on self-determination and the
237 legal rights and responsibilities regarding the educational
238 decisions that transfer to the student upon attaining the age of
239 18. The information must include the ways in which the student
240 may provide informed consent to allow his or her parent to
241 continue to participate in educational decisions, including:
242 1. Informed consent to grant permission to access
243 confidential records protected under the Family Educational
244 Rights and Privacy Act (FERPA) as provided in s. 1002.22.
245 2. Powers of attorney as provided in chapter 709.
246 3. Guardian advocacy as provided in s. 393.12.
247 4. Guardianship as provided in chapter 744.
248 5. Supported decisionmaking agreements as provided in s.
249 709.2209.
250
251 The State Board of Education shall adopt rules to administer
252 this paragraph.
253 Section 8. This act shall take effect July 1, 2024.
