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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
A bill to be entitled 1
An act relating to supported decisionmaking for adults 2
with disabilities; amending s. 393.063, F.S.; 3
providing definitions; amending s. 393.065, F.S.; 4
revising a requirement that the Agency for Persons 5
with Disabilities provide specified information to 6
certain persons to conform to changes made by the act; 7
amending s. 393.12, F.S.; revising the requirements 8
for petitions to appoint guardian advocates for 9
persons with developmental disabilities to conform to 10
changes made by the act; creating s. 393.121, F.S.; 11
authorizing adults with disabilities to enter into 12
supported decisionmaking agreements under certain 13
circumstances; prohibiting the use of such agreements 14
as evidence of incapacity; providing that such 15
agreements do not preclude a decisionmaker from acting 16
independently; providing criteria for supporters; 17
providing requirements for supported decisionmaking 18
agreements; requiring that a supporter act in good 19
faith; authorizing adults with disabilities who have 20
appointed guardian advocates to enter into supported 21
decisionmaking agreements under certain circumstances; 22
amending ss. 383.141 and 1002.394, F.S.; conforming 23
cross-references; providing an effective date. 24
25
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
Be It Enacted by the Legislature of the State of Florida: 26
27
Section 1. Subsections (11) through (42), of section 28
393.063, Florida Statutes, are renumbered as subsections (12) 29
through (43), respectively, present subsections (43), (44), 30
(45), and (46) are renumbered as subsections (46), (47), (49), 31
and (50), respectively, and new subsections (11), (44), (45), 32
and (48) are added to that section, to read: 33
393.063 Definitions. —For the purposes of this chapter, the 34
term: 35
(11) "Decisionmaker" means an a dult with a disability who 36
has entered into a supported decisionmaking agreement with at 37
least one supporter. 38
(44) "Supported decisionmaking" means a process of 39
supporting an adult with a disability to assist him or her with 40
understanding the options, re sponsibilities, and consequences of 41
a life decision and enabling him or her to make a life decision 42
without impeding self -determination. 43
(45) "Supported decisionmaking agreement" means a written 44
agreement between a decisionmaker and at least one supporte r for 45
supported decisionmaking. 46
(48) "Supporter" means a qualified adult who has entered 47
into a supported decisionmaking agreement under s. 393.121(1). 48
Section 2. Paragraph (a) of subsection (10) of section 49
393.065, Florida Statutes, is amended, and paragraphs (b) and 50
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(c) of that subsection are republished, to read: 51
393.065 Application and eligibility determination. — 52
(10)(a) The agency shall provide the following information 53
to all applicants or their parents, legal guardians, or family 54
members: 55
1. A brief overview of the vocational rehabilitation 56
services offered through the Division of Vocational 57
Rehabilitation of the Department of Education, including a 58
hyperlink or website address that provides access to the 59
application for such services; 60
2. A brief overview of the Florida ABLE program as 61
established under s. 1009.986, including a hyperlink or website 62
address that provides access to the application for establishing 63
an ABLE account as defined in s. 1009.986(2); 64
3. A brief overview of the su pplemental security income 65
benefits and social security disability income benefits 66
available under Title XVI of the Social Security Act, as 67
amended, including a hyperlink or website address that provides 68
access to the application for such benefits; 69
4. A statement indicating that the applicant's local 70
public school district may provide specialized instructional 71
services, including transition programs, for students with 72
special education needs; 73
5. A brief overview of programs and services funded 74
through the Florida Center for Students with Unique Abilities, 75
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including contact information for each state -approved Florida 76
Postsecondary Comprehensive Transition Program; 77
6. A brief overview of decisionmaking options for 78
individuals with disabilities, including supported 79
decisionmaking under s. 393.121, guardianship under chapter 744, 80
and alternatives to guardianship as defined in s. 744.334(1), 81
which may include contact information for organizations that the 82
agency believes would be helpful in assisting with su ch 83
decisions; 84
7. A brief overview of the referral tools made available 85
through the agency, including a hyperlink or website address 86
that provides access to such tools; and 87
8. A statement indicating that some waiver providers may 88
serve private-pay individuals. 89
(b) The agency must provide the information required in 90
paragraph (a) in writing to an applicant or his or her parent, 91
legal guardian, or family member along with a written disclosure 92
statement in substantially the following form: 93
DISCLOSURE STATEMENT 94
Each program and service has its own eligibility requirements. 95
By providing the information specified in section 96
393.065(10)(a), Florida Statutes, the agency does not guarantee 97
an applicant's eligibility for or enrollment in any program or 98
service. 99
(c) The agency shall also publish the information required 100
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in paragraph (a) and the disclosure statement in paragraph (b) 101
on its website, and shall provide that information and statement 102
annually to each applicant placed on the waiting list or to the 103
parent, legal guardian, or family member of such applicant. 104
Section 3. Paragraphs (d), (e), and (f) of subsection (3) 105
of section 393.12, Florida Statutes, are redesignated as 106
paragraphs (e), (f), and (g), respectively, paragraph (a) of 107
subsection (4) and s ubsection (7) are amended, and a new 108
paragraph (d) is added to subsection (3) of that section, to 109
read: 110
393.12 Capacity; appointment of guardian advocate. — 111
(3) PETITION.—A petition to appoint a guardian advocate 112
for a person with a developmental disabi lity may be executed by 113
an adult person who is a resident of this state. The petition 114
must be verified and must: 115
(d) State any effort to use decisionmaking options before 116
seeking a guardian advocate, including entering into a supported 117
decisionmaking agreement under s. 393.121, a durable power of 118
attorney under chapter 709, or an advance directive under 119
chapter 765. The statement must include all of the following 120
information: 121
1. Each guardianship alternative that was considered or 122
implemented. 123
2. If a guardianship alternative was not considered or 124
implemented, the reason why a guardianship alternative was not 125
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considered or implemented. 126
3. Any reason why a guardianship alternative is 127
insufficient to meet the needs of the person with a 128
developmental disability. 129
(4) NOTICE.— 130
(a) Notice of the filing of the petition must be given to 131
the person with a developmental disability, verbally and in 132
writing in the language of the person and in English. Notice 133
must also be given to the next of kin of the perso n with a 134
developmental disability under as defined in chapter 744, a 135
health care surrogate designated under pursuant to an advance 136
directive under chapter 765, an agent under a durable power of 137
attorney, a supporter who has entered into a supported 138
decisionmaking agreement under s. 393.121, and such other 139
persons as the court may direct. A copy of the petition to 140
appoint a guardian advocate must be served with the notice. 141
(7) ADVANCE DIRECTIVES FOR HEALTH CARE , AND DURABLE POWER 142
OF ATTORNEY, AND SUPPORTED DECISIONMAKING AGREEMENTS .—In each 143
proceeding in which a guardian advocate is appointed under this 144
section, the court shall determine whether the person with a 145
developmental disability has executed any valid advance 146
directive under chapter 765 , or a durable power of attorney 147
under chapter 709, or a supported decisionmaking agreement under 148
s. 393.121. 149
(a) If the person with a developmental disability has 150
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executed an advance directive , a or durable power of attorney, 151
or a supported decisionmaking agreement , the court must consider 152
and find whether the documents will sufficiently address the 153
needs of the person with a developmental disability for whom the 154
guardian advocate is sought. A guardian advocate may not be 155
appointed if the court finds that the advanc e directive, or 156
durable power of attorney , or supported decisionmaking agreement 157
provides an alternative to the appointment of a guardian 158
advocate which will sufficiently address the needs of the person 159
with a developmental disability. 160
(b) If an interested person seeks to contest an advance 161
directive, a or durable power of attorney , or a supported 162
decisionmaking agreement executed by a person with a 163
developmental disability, the interested person shall file a 164
verified statement. The verified statement sha ll include the 165
factual basis for the belief that the advance directive , or 166
durable power of attorney , or supported decisionmaking agreement 167
is invalid or does not sufficiently address the needs of the 168
person for whom a guardian advocate is sought or that t he person 169
with authority under the advance directive , or durable power of 170
attorney, or supported decisionmaking agreement is abusing his 171
or her power. 172
(c) If an advance directive exists, the court shall 173
specify in its order and letters of guardian advoca cy what 174
authority, if any, the guardian advocate shall exercise over the 175
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person's health care surrogate. Pursuant to the grounds listed 176
in s. 765.105, the court, upon its own motion, may, with notice 177
to the health care surrogate and any other appropriate p arties, 178
modify or revoke the authority of the health care surrogate to 179
make health care decisions for the person with a developmental 180
disability. For purposes of this section, the term "health care 181
decision" has the same meaning as in s. 765.101. 182
(d) If any durable power of attorney exists, the court 183
shall specify in its order and letters of guardian advocacy what 184
powers of the agent, if any, are suspended and granted to the 185
guardian advocate. The court, however, may not suspend any 186
powers of the agent un less the court determines the durable 187
power of attorney is invalid or there is an abuse by the agent 188
of the powers granted. 189
(e) If a supported decisionmaking agreement exists, the 190
court shall specify in its order and letters of guardian 191
advocacy the part of the agreement that is suspended. 192
Section 4. Section 393.121, Florida Statutes, is created 193
to read: 194
393.121 Supported decisionmaking. — 195
(1) An adult with a disability may enter into a supported 196
decisionmaking agreement if he or she: 197
(a) Voluntarily enters into the agreement without coercion 198
or undue influence; and 199
(b) Understands the nature and effect of the agreement. 200
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(2) The existence of a supported decisionmaking agreement 201
may not be used as evidence of incapacity and does not preclude 202
the decisionmaker from acting independently. 203
(3) A supporter must be an adult and, unless he or she is 204
an immediate family member of the decisionmaker, may not be: 205
(a) An employer or employee of the decisionmaker; 206
(b) A decisionmaker's healt h care provider as defined in 207
s. 768.381(1); 208
(c) A creditor or debtor of the decisionmaker; 209
(d) An employee or contractor of a state agency who 210
provides services directly to the decisionmaker; 211
(e) A person who provides paid support services, excludin g 212
decisionmaking assistance, directly to the decisionmaker; 213
(f) A landlord or an employee of a landlord of the 214
decisionmaker; or 215
(g) A person against whom a protective order or 216
restraining order has been entered by a court at the request of 217
or on behalf of the decisionmaker. 218
(4) An adult with a disability may voluntarily, without 219
undue influence or coercion, enter into a supported 220
decisionmaking agreement that authorizes a supporter to: 221
(a) Assist the decisionmaker in understanding the options, 222
responsibilities, and consequences of life decisions; 223
(b) Assist the decisionmaker in accessing, collecting, and 224
obtaining information and records relevant to a life decision, 225
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including, but not limited to, medical, psychological, 226
financial, educational, or treatment records, to which the 227
decisionmaker is entitled, from any person or entity. Such 228
information and records must include, but need not be limited 229
to, protected health information under the Health Insurance 230
Portability and Accountability Act of 1996, 42 U.S.C. s. 1320d; 231
educational records under the Family Educational Rights and 232
Privacy Act of 1974, 20 U.S.C. s. 1232g; information available 233
under the Individuals with Disabilities Education Act, 20 U.S.C. 234
ss. 1400, et seq.; or records of the identity, diagnosis, 235
prognosis, or treatment of a patient maintained in connection 236
with the performance of any program or activity relating to 237
substance abuse, education, prevention, training, treatment, 238
rehabilitation, or research which are protected by 42 U.S.C. s . 239
290dd-2 and 42 C.F.R. part II; 240
(c) Assist the decisionmaker in communicating his or her 241
decisions; or 242
(d) Access the decisionmaker's personal information, to 243
the extent authorized by the supported decisionmaking agreement. 244
(5) A supporter shall ac t in good faith in all actions 245
taken under the supported decisionmaking agreement. 246
(6) An adult with a disability who has a guardian advocate 247
may enter into a supported decisionmaking agreement if the 248
guardian advocate grants written approval to do so. T he adult 249
with a disability does not need approval from the guardian 250
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advocate if the supported decisionmaking agreement only affects 251
rights that were not removed by the court. 252
Section 5. Paragraph (b) of subsection (1) of section 253
383.141, Florida Statut es, is amended to read: 254
383.141 Prenatally diagnosed conditions; patient to be 255
provided information; definitions; information clearinghouse; 256
advisory council.— 257
(1) As used in this section, the term: 258
(b) "Developmental disability" includes Down syndro me and 259
other developmental disabilities defined by s. 393.063 s. 260
393.063(12). 261
Section 6. Paragraph (d) of subsection (2) of section 262
1002.394, Florida Statutes, is amended to read: 263
1002.394 The Family Empowerment Scholarship Program. — 264
(2) DEFINITIONS.—As used in this section, the term: 265
(d) "Disability" means, for a 3 - or 4-year-old child or 266
for a student in kindergarten to grade 12, autism spectrum 267
disorder, as defined in the Diagnostic and Statistical Manual of 268
Mental Disorders, Fifth Edition, pub lished by the American 269
Psychiatric Association; cerebral palsy, as defined in s. 270
393.063; Down syndrome, as defined in s. 393.063; an 271
intellectual disability, as defined in s. 393.063; a speech 272
impairment; a language impairment; an orthopedic impairment; a n 273
other health impairment; an emotional or a behavioral 274
disability; a specific learning disability, including, but not 275
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limited to, dyslexia, dyscalculia, or developmental aphasia; 276
Phelan-McDermid syndrome, as defined in s. 393.063; Prader -Willi 277
syndrome, as defined in s. 393.063; spina bifida, as defined in 278
s. 393.063; being a high -risk child, as defined in s. 279
393.063(24)(a) s. 393.063(23)(a); muscular dystrophy; Williams 280
syndrome; rare diseases which affect patient populations of 281
fewer than 200,000 individ uals in the United States, as defined 282
by the National Organization for Rare Disorders; anaphylaxis; a 283
hearing impairment, including deafness; a visual impairment, 284
including blindness; traumatic brain injury; hospital or 285
homebound; or identification as dual sensory impaired, as 286
defined by rules of the State Board of Education and evidenced 287
by reports from local school districts. The term "hospital or 288
homebound" includes a student who has a medically diagnosed 289
physical or psychiatric condition or illness, as defined by the 290
state board in rule, and who is confined to the home or hospital 291
for more than 6 months. 292
Section 7. This act shall take effect July 1, 2022. 293