Florida Senate - 2022 SB 1772 By Senator Torres 15-01268-22 20221772__ 1 A bill to be entitled 2 An act relating to supported decisionmaking for adults 3 with disabilities; amending s. 393.063, F.S.; defining 4 terms; amending s. 393.065, F.S.; revising a 5 requirement that the Agency for Persons with 6 Disabilities provide specified information to certain 7 persons to conform to changes made by the act; 8 amending s. 393.12, F.S.; revising the requirements 9 for petitions to appoint guardian advocates for 10 persons with developmental disabilities to conform to 11 changes made by the act; creating s. 393.121, F.S.; 12 authorizing adults with disabilities to enter into 13 supported decisionmaking agreements under certain 14 circumstances; prohibiting the use of such agreements 15 as evidence of incapacity; providing that such 16 agreements do not preclude a decisionmaker from acting 17 independently; providing criteria for supporters; 18 specifying actions supporters may be authorized to 19 take pursuant to a supported decisionmaking agreement; 20 requiring that a supporter act in good faith; 21 authorizing adults with disabilities who have 22 appointed guardian advocates to enter into supported 23 decisionmaking agreements under certain circumstances; 24 amending ss. 383.141 and 1002.394, F.S.; conforming 25 cross-references; providing an effective date. 26 27 Be It Enacted by the Legislature of the State of Florida: 28 29 Section 1.Present subsections (11) through (42) and (43), 30 (44), (45), and (46) of section 393.063, Florida Statutes, are 31 redesignated as subsections (12) through (43) and (46), (47), 32 (49), and (50), respectively, and new subsections (11), (44), 33 (45), and (48) are added to that section, to read: 34 393.063Definitions.For the purposes of this chapter, the 35 term: 36 (11)Decisionmaker means an adult with a disability who 37 has entered into a supported decisionmaking agreement with at 38 least one supporter. 39 (44)Supported decisionmaking means a process of 40 supporting an adult with a disability to assist him or her with 41 understanding the options, responsibilities, and consequences of 42 a life decision and enabling him or her to make a life decision 43 without impeding self-determination. 44 (45)Supported decisionmaking agreement means a written 45 agreement between a decisionmaker and at least one supporter. 46 (48)Supporter means a qualified adult who has entered 47 into a supported decisionmaking agreement under s. 393.121. 48 Section 2.Paragraph (a) of subsection (10) of section 49 393.065, Florida Statutes, is amended, and paragraphs (b) and 50 (c) of that subsection are republished, to read: 51 393.065Application 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 supplemental 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 applicants local public 70 school district may provide specialized instructional services, 71 including transition programs, for students with special 72 education needs; 73 5.A brief overview of programs and services funded through 74 the Florida Center for Students with Unique Abilities, including 75 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 such 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 94 DISCLOSURE STATEMENT 95 96 Each program and service has its own eligibility requirements. 97 By providing the information specified in section 98 393.065(10)(a), Florida Statutes, the agency does not guarantee 99 an applicants eligibility for or enrollment in any program or 100 service. 101 (c)The agency shall also publish the information required 102 in paragraph (a) and the disclosure statement in paragraph (b) 103 on its website, and shall provide that information and statement 104 annually to each applicant placed on the waiting list or to the 105 parent, legal guardian, or family member of such applicant. 106 Section 3.Subsection (3), paragraph (a) of subsection (4), 107 and subsection (7) of section 393.12, Florida Statutes, are 108 amended to read: 109 393.12Capacity; appointment of guardian advocate. 110 (3)PETITION.A petition to appoint a guardian advocate for 111 a person with a developmental disability may be executed by an 112 adult person who is a resident of this state. The petition must 113 be verified and must: 114 (a)State the name, age, and present address of the 115 petitioner and his or her relationship to the person with a 116 developmental disability; 117 (b)State the name, age, county of residence, and present 118 address of the person with a developmental disability; 119 (c)Allege that the petitioner believes that the person 120 needs a guardian advocate and specify the factual information on 121 which such belief is based; 122 (d)State any effort to use decisionmaking options before 123 seeking a guardian advocate, including entering into a supported 124 decisionmaking agreement under s. 393.121, a durable power of 125 attorney under chapter 709, or an advance directive under 126 chapter 765. The statement must include all of the following 127 information: 128 1.Each guardianship alternative that was considered or 129 implemented. 130 2.If a guardianship alternative was not considered or 131 implemented, the reason why a guardianship alternative was not 132 considered or implemented. 133 3.Any reason why a guardianship alternative is 134 insufficient to meet the needs of the person with a 135 developmental disability; 136 (e)Specify the exact areas in which the person lacks the 137 decisionmaking ability to make informed decisions about his or 138 her care and treatment services or to meet the essential 139 requirements for his or her physical health or safety; 140 (f)(e)Specify the legal disabilities to which the person 141 is subject; and 142 (g)(f)State the name of the proposed guardian advocate, 143 the relationship of that person to the person with a 144 developmental disability; the relationship that the proposed 145 guardian advocate had or has with a provider of health care 146 services, residential services, or other services to the person 147 with a developmental disability; and the reason why this person 148 should be appointed. If a willing and qualified guardian 149 advocate cannot be located, the petition shall so state. 150 (4)NOTICE. 151 (a)Notice of the filing of the petition must be given to 152 the person with a developmental disability, verbally and in 153 writing in the language of the person and in English. Notice 154 must also be given to the next of kin of the person with a 155 developmental disability under as defined in chapter 744, a 156 health care surrogate designated under pursuant to an advance 157 directive under chapter 765, an agent under a durable power of 158 attorney, a supporter who has entered into a supported 159 decisionmaking agreement under s. 393.121, and such other 160 persons as the court may direct. A copy of the petition to 161 appoint a guardian advocate must be served with the notice. 162 (7)ADVANCE DIRECTIVES FOR HEALTH CARE, AND DURABLE POWER 163 OF ATTORNEY, AND SUPPORTED DECISIONMAKING AGREEMENTS.In each 164 proceeding in which a guardian advocate is appointed under this 165 section, the court shall determine whether the person with a 166 developmental disability has executed any valid advance 167 directive under chapter 765, or a durable power of attorney 168 under chapter 709, or a supported decisionmaking agreement under 169 s. 393.121. 170 (a)If the person with a developmental disability has 171 executed an advance directive, a or durable power of attorney, 172 or a supported decisionmaking agreement, the court must consider 173 and find whether the documents will sufficiently address the 174 needs of the person with a developmental disability for whom the 175 guardian advocate is sought. A guardian advocate may not be 176 appointed if the court finds that the advance directive, or 177 durable power of attorney, or supported decisionmaking agreement 178 provides an alternative to the appointment of a guardian 179 advocate which will sufficiently address the needs of the person 180 with a developmental disability. 181 (b)If an interested person seeks to contest an advance 182 directive, a or durable power of attorney, or a supported 183 decisionmaking agreement executed by a person with a 184 developmental disability, the interested person must shall file 185 a verified statement. The verified statement must shall include 186 the factual basis for the belief that the advance directive, or 187 durable power of attorney, or supported decisionmaking agreement 188 is invalid or does not sufficiently address the needs of the 189 person for whom a guardian advocate is sought or that the person 190 with authority under the advance directive, or durable power of 191 attorney, or supported decisionmaking agreement is abusing his 192 or her power. 193 (c)If an advance directive exists, the court must shall 194 specify in its order and letters of guardian advocacy what 195 authority, if any, the guardian advocate shall exercise over the 196 persons health care surrogate. Pursuant to the grounds listed 197 in s. 765.105, the court, upon its own motion, may, with notice 198 to the health care surrogate and any other appropriate parties, 199 modify or revoke the authority of the health care surrogate to 200 make health care decisions for the person with a developmental 201 disability. For purposes of this section, the term health care 202 decision has the same meaning as in s. 765.101. 203 (d)If any durable power of attorney exists, the court must 204 shall specify in its order and letters of guardian advocacy what 205 powers of the agent, if any, are suspended and granted to the 206 guardian advocate. The court, however, may not suspend any 207 powers of the agent unless the court determines the durable 208 power of attorney is invalid or there is an abuse by the agent 209 of the powers granted. 210 (e)If a supported decisionmaking agreement exists, the 211 court must specify in its order and letters of guardian advocacy 212 the part of the agreement which is suspended. 213 Section 4.Section 393.121, Florida Statutes, is created to 214 read: 215 393.121Supported decisionmaking. 216 (1)An adult with a disability may enter into a supported 217 decisionmaking agreement if he or she: 218 (a)Voluntarily enters into the agreement without coercion 219 or undue influence; and 220 (b)Understands the nature and effect of the agreement. 221 (2)The existence of a supported decisionmaking agreement 222 may not be used as evidence of incapacity and does not preclude 223 the decisionmaker from acting independently. 224 (3)A supporter must be an adult and, unless he or she is 225 an immediate family member of the decisionmaker, may not be: 226 (a)An employer or employee of the decisionmaker; 227 (b)A health care provider of the decisionmaker; 228 (c)A creditor or debtor of the decisionmaker; 229 (d)An employee or a contractor of a state agency who 230 provides services directly to the decisionmaker; 231 (e)A person who provides paid support services, excluding 232 decisionmaking assistance, directly to the decisionmaker; 233 (f)A landlord, nursing home, assisted living facility, or 234 an employee of a landlord, nursing home, or assisted living 235 facility of the decisionmaker; or 236 (g)A person against whom a protective order or restraining 237 order has been entered by a court at the request of or on behalf 238 of the decisionmaker. 239 (4)An adult with a disability may voluntarily, without 240 undue influence or coercion, enter into a supported 241 decisionmaking agreement that authorizes a supporter to: 242 (a)Assist the decisionmaker in understanding the options, 243 responsibilities, and consequences of life decisions; 244 (b)Assist the decisionmaker in accessing, collecting, and 245 obtaining information and records relevant to a life decision, 246 including, but not limited to, medical, psychological, 247 financial, educational, or treatment records, to which the 248 decisionmaker is entitled, from any person or entity. Such 249 information and records must include, but need not be limited 250 to, protected health information under the Health Insurance 251 Portability and Accountability Act of 1996, 42 U.S.C. s. 1320d; 252 educational records under the Family Educational Rights and 253 Privacy Act of 1974, 20 U.S.C. s. 1232g; information available 254 under the Individuals with Disabilities Education Act, 20 U.S.C. 255 ss. 1400, et seq.; or records of the identity, diagnosis, 256 prognosis, or treatment of a patient maintained in connection 257 with the performance of any program or activity relating to 258 substance abuse, education, prevention, training, treatment, 259 rehabilitation, or research which are protected by 42 U.S.C. s. 260 290dd-2 and 42 C.F.R. part II; 261 (c)Assist the decisionmaker in communicating his or her 262 decisions; or 263 (d)Access the decisionmakers personal information, to the 264 extent authorized by the supported decisionmaking agreement. 265 (5)A supporter shall act in good faith in all actions 266 taken under the supported decisionmaking agreement. 267 (6)An adult with a disability who has a guardian advocate 268 may enter into a supported decisionmaking agreement if the 269 guardian advocate grants written approval to do so. The adult 270 with a disability does not need approval from the guardian 271 advocate if the supported decisionmaking agreement only affects 272 rights that were not removed by the court. 273 Section 5.Paragraph (b) of subsection (1) of section 274 383.141, Florida Statutes, is amended to read: 275 383.141Prenatally diagnosed conditions; patient to be 276 provided information; definitions; information clearinghouse; 277 advisory council. 278 (1)As used in this section, the term: 279 (b)Developmental disability includes Down syndrome and 280 other developmental disabilities defined by s. 393.063 s. 281 393.063(12). 282 Section 6.Paragraph (d) of subsection (2) of section 283 1002.394, Florida Statutes, is amended to read: 284 1002.394The Family Empowerment Scholarship Program. 285 (2)DEFINITIONS.As used in this section, the term: 286 (d)Disability means, for a 3- or 4-year-old child or for 287 a student in kindergarten to grade 12, autism spectrum disorder, 288 as defined in the Diagnostic and Statistical Manual of Mental 289 Disorders, Fifth Edition, published by the American Psychiatric 290 Association; cerebral palsy, as defined in s. 393.063; Down 291 syndrome, as defined in s. 393.063; an intellectual disability, 292 as defined in s. 393.063; a speech impairment; a language 293 impairment; an orthopedic impairment; another an other health 294 impairment; an emotional or a behavioral disability; a specific 295 learning disability, including, but not limited to, dyslexia, 296 dyscalculia, or developmental aphasia; Phelan-McDermid syndrome, 297 as defined in s. 393.063; Prader-Willi syndrome, as defined in 298 s. 393.063; spina bifida, as defined in s. 393.063; being a 299 high-risk child, as defined in s. 393.063(24)(a) s. 300 393.063(23)(a); muscular dystrophy; Williams syndrome; rare 301 diseases which affect patient populations of fewer than 200,000 302 individuals in the United States, as defined by the National 303 Organization for Rare Disorders; anaphylaxis; a hearing 304 impairment, including deafness; a visual impairment, including 305 blindness; traumatic brain injury; hospital or homebound; or 306 identification as dual sensory impaired, as defined by rules of 307 the State Board of Education and evidenced by reports from local 308 school districts. The term hospital or homebound includes a 309 student who has a medically diagnosed physical or psychiatric 310 condition or illness, as defined by the state board in rule, and 311 who is confined to the home or hospital for more than 6 months. 312 Section 7.This act shall take effect July 1, 2022.