This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0813a.CJS
DATE: 3/14/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 813 Support for Dependent Adult Children
SPONSOR(S): Civil Justice Subcommittee, Tant
TIED BILLS: IDEN./SIM. BILLS: CS/SB 226
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice Subcommittee 18 Y, 0 N, As CS Mathews Jones
2) Children, Families & Seniors Subcommittee
3) Judiciary Committee
SUMMARY ANALYSIS
Generally, the obligation of a parent to support a child ceases when the child reaches majority (usually age
18). However, a limited exception arises when the child is unable to support himself or herself because of
physical or mental disabilities. Under the common law, parents have a duty of support for a dependent adult
child (DAC) who is unable to support himself or herself because of a mental or physical incapacity that began
prior to the child reaching majority. This duty of support rests upon both parents throughout the dependency
and throughout their lives. Aside from the limited provisions under s. 743.07, F.S., current law does not
otherwise recognize or regulate any right to support for DACs nor does it provide guidelines for calculating
support owed to DACs.
Under s. 61.29, F.S., each parent has a fundamental obligation to support his or her minor or legally dependent
child. The court shall order either or both parents owing a duty of support to the child to pay support pursuant
to s. 61.30, F.S. A parent’s child support obligation is calculated based on the child support guidelines
established in s. 61.30, F.S. These guidelines use a mathematical formula to develop the basic child support
obligation of each parent.
Parents have a common law obligation to support their DAC, however, such duty does is not fully codified in
the Florida Statutes. S. 743.07(2), F.S., permits a court to require support for a dependent child over the age of
18 when such dependency is due to a mental or physical incapacity which began before the child reached the
age of majority. While Florida law allows a court to order support for a DAC, it does not require or create a
blanket obligation to do so. As such, there is no consistency from court to court regarding how to handle
support for a DAC. Further, there is no guidance as to how to calculate such support, as is similarly found in
ch. 61 for the calculation of support for a minor child.
CS/HB 813 creates s. 61.1255, F.S., to codify the common law obligation of a parent to support a DAC after he
or she reaches the age of majority. The bill specifies who may bring an action to establish such support and
provides that support payments should be made directly to the DAC or his or her representative. The bill
permits a portion of the support to be placed in a special needs trust or pooled trust for the DAC’s benefit and
prohibits a court from entering an order for support that would make the DAC ineligible for programs or
services the DAC currently participates in or receives or would be reasonably expected to participate in after
reaching the age of majority.
The bill also creates s. 61.31, F.S., to define new support guidelines for courts to use in support calculations for
a DAC. The bill further clarifies that a guardian advocate may collect support payments on behalf of the DAC.
Under the bill, any modifications to support for a DAC must be made in accordance with the requirements
established for regular child support under ch. 61. The bill clarifies jurisdiction over a DAC and defines the
court’s role in such a proceeding.
The effective date of the bill is July 1, 2023.
STORAGE NAME: h0813a.CJS PAGE: 2
DATE: 3/14/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Support for Dependent Adult Children
Generally, the obligation of a parent to financially support a child ceases when the child reaches
majority (usually age 18). However, a limited exception arises when the child is unable to support
himself or herself because of physical or mental disabilities.
1
Under the common law, parents have a
duty of support for a dependent adult child (DAC) who is unable to support himself or herself because
of a mental or physical incapacity that began prior to the child reaching majority.
2
This duty of support
rests upon both parents throughout the dependency.
3
In 1973, the Legislature adopted s. 743.07, F.S., which removed the disability of nonage for those 18
years of age and older, but also preserved an exception for continued support of a certain class of
dependent adults.
4
Specifically, s. 743.07(2) allows a court to order parents to continue financially
supporting a dependent adult child, if either:
The dependency was the result of a mental or physical incapacity that began prior to the person
reaching majority.
5
The dependent person is between the ages of 18 and 19, is dependent in fact, and is still in high
school but performing in good faith with a reasonable expectation of graduating before turning
19.
The circuit court is the proper court for such adjudications.
6
The right to receive support, and the
corresponding right to bring the cause of action, belongs to the DAC,
7
although the DAC does not need
to be adjudicated dependent before he or she reaches majority for the court to order extended
support.
8
In cases where the parents of a dependent adult child have dissolved their marriage, and one
party has fulfilled his or her child support obligations through the age of majority, an independent action
may be brought to adjudicate that party’s continuing support obligation for the DAC.
9
So, while Florida common law recognizes the duty of parents to provide for their dependent adult
children, aside from the limited provisions under s. 743.07, F.S., the Florida Statutes do not otherwise
recognize or regulate any right to support for DACs, nor do they provide guidelines for calculating
support owed to DACs.
Child Support
Under s. 61.29, F.S., each parent has a fundamental obligation to support his or her minor or legally
dependent child. The court shall order either or both parents owing a duty of support to the child to pay
support pursuant to s. 61.30, F.S. A parent’s child support obligation is calculated based on the child
support guidelines established in s. 61.30, F.S. These guidelines use a mathematical formula to
develop the basic child support obligation of each parent. The court may not deviate from the basic
1
Perla v. Perla, 58 So. 2d 689, 690 (Fla. 1952).
2
Brown v. Brown, 714 So. 2d 475, 477 (Fla. 5th DCA 1998); Monitzer v. Monitzer, 600 So. 2d 575, 575 (Fla. 2d DCA 1992); Fincham v.
Levin, 155 So. 2d 883, 884 (Fla. 1st DCA 1963).
3
Fernandez v. Fernandez, 306 So. 3d 1013, 1015 (Fla. 3d DCA 2020) (quoting Hastings v. Hastings, 841 So. 2d 484, 486 (Fla. 3d DCA
2003) (internal citations omitted)).
4
Id. at 1015.
5
Id. at 1016-17.
6
Id. at 1015.
7
Id.
8
Skelly v. Skelly, 300 So. 3d 342, 345 (Fla. 5th DCA 2020) (confirming that s. 743.07(2), F.S., does not require that a child be adjudicated
dependent before he or she reaches majority for the trial court to order extended support)).
9
Fernandez, 306 So. 3d at 1015. STORAGE NAME: h0813a.CJS PAGE: 3
DATE: 3/14/2023
child support obligation provided under the guidelines by more than five percent when establishing the
child support award except in very limited circumstances, such as when a court orders substantial time-
sharing.
All child support orders and income deduction orders entered on or after October 1, 2010, must
provide, among other things, for child support to terminate on a child’s 18
th
birthday, unless the court
finds or has previously found that child support should continue where either:
The dependency was the result of a mental or physical incapacity that began prior to the person
reaching majority.
The dependent person is between the ages of 18 and 19, is dependent in fact, and is still in high
school but performing in good faith with a reasonable expectation of graduating before turning
19.
10
Additionally, a court that initially enters an order requiring a parent to make child support payments has
continuing jurisdiction after entry of the initial order to modify the amount and terms and conditions of
the child support payments if:
The modification is found by the court to be in the best interests of the child;
There is a substantial change in the circumstances of the parties;
The child support payments are for an adult child who is dependent due to a mental or
physical incapacity that began before age 18;
The child support payments are for a child who is between the ages of 18 and 19 and is
reasonably expected to graduate before age 19; or
The child reaches majority, is emancipated, marries, joins the armed services, or dies.
11
Guardianship
If a court finds that a person lacks the ability to safely manage the things that belong to him or her, or
lacks the ability to meet his or her basic health, safety, and self-care needs, a court may rule that the
person is “incapacitated.”
12
In many cases, after a court decides that a person is incapacitated, it will
choose someone else to make some or all the decisions for the incapacitated person. This is known as
a guardianship.
13
Being placed in a guardianship may result in the loss of a person’s right to make his or her own life
choices. The rights that a person can lose include the right to contract, vote, travel, marry, work,
consent to treatment, sue or defend lawsuits, choose living arrangements, make decisions about his or
her social life, have a driver’s license, personally apply for benefits, and manage money or property.
14
A guardianship must be specific to the abilities and needs of the individual and should not be any more
restrictive than necessary.
15
Consequently, there are different types of guardianships under state law,
including:
16
Preneed guardian;
17
Voluntary guardianship;
18
Emergency temporary guardianship;
19
Limited guardianship;
20
10
Ss. 61.13(1)(a)1. and 743.07(2), F.S.
11
S. 61.13(1)(a)2., F.S.
12
See generally Part V, Ch. 744, F.S.; see also Disability Rights Florida, What is Guardianship?, https://disabilityrightsflorida.org/disability-
topics/disability_topic_info/what_is_guardianship (last visited Mar. 1, 2023).
13
Id.
14
S. 744.1012(1), F.S.; see also Disability Rights Florida, Types of Guardianship, https://disabilityrightsflorida.org/disability-
topics/disability_topic_info/types_of_guardianship (last visited Mar. 1, 2023).
15
S. 744.1012(2), F.S.; see also Disability Rights Florida, Types of Guardianship.
16
See generally Disability Rights Florida, Types of Guardianship.
17
Ss. 744.3045 and 744.3046, F.S.
18
S. 744.341, F.S.
19
S. 744.3031, F.S.
20
Ss. 744.441(1), F.S. and s. 744.102(9)(a), F.S. STORAGE NAME: h0813a.CJS PAGE: 4
DATE: 3/14/2023
Guardian advocate for individuals who have a developmental disability;
21
Guardian advocate for individuals receiving mental health treatment;
22
and
Full (that is, “plenary”) guardianship.
23
The powers and duties of a court-appointed guardian include, but are not limited to:
Filing an initial plan and annual reports;
24
Making provision for the medical, mental, rehabilitative, and personal care of the person;
25
Making residential decisions on behalf of the person;
26
Advocating on behalf of the person in institutional and other residential settings;
27
and
Making financial decisions on behalf of the person.
28
Among other requirements, guardians must file an annual guardianship report with the court.
29
The
annual guardianship report must be filed within 90 days after the last day of the anniversary month that
the letters of guardianship were signed, and the plan must cover the coming fiscal year, ending on the
last day in such anniversary month. The annual guardianship report must include an annual
guardianship plan
30
containing information regarding the residence of the person for whom the
guardianship has been established; the medical and mental health conditions, treatment, and
rehabilitation needs of the person; the social condition of the person; and a list of any preexisting orders
not to resuscitate, or preexisting advance directives.
31
Guardian Advocates
A “guardian advocate” is a person appointed by court order to represent a person with developmental
disabilities.
32
A “developmental disability” means:
A disorder or syndrome that is attributable to intellectual disability, cerebral palsy, autism, spina
bifida, Down syndrome, Phelan-McDermid syndrome, or Prader-Willi syndrome;
Manifesting before the age of 18; and
Constituting a substantial handicap that can reasonably be expected to continue indefinitely.
33
Guardian advocacy is a way for family members, caregivers, or friends of a person with a
developmental disability to obtain the legal authority to act on such person’s behalf if the person lacks
the decision-making ability to do some, but not all, of the decision-making tasks necessary to care for
his or her person or property, or if the person has voluntarily petitioned for the appointment of a
guardian advocate.
34
State law recognizes the appointment of a guardian advocate as a less restrictive alternative to
guardianship.
35
A guardian advocate can be appointed without having to declare the person with a
developmental disability incapacitated.
36
In a case with a guardian advocate, the court will also appoint
an attorney for the person with the developmental disability to ensure that his or her best interests are
protected.
37
21
Ss. 744.3085 and 393.12, F.S.
22
Ss. 744.3085 and 394.4598, F.S.
23
S. 744.441(1), F.S.; see also s. 744.102(9)(b), F.S. (defining “plenary guardian”).
24
S. 744.361(6)-(7), F.S.
25
S. 744.361(13)(f), F.S.
26
S. 744.361(13)(h), F.S.
27
S. 744.361(13)(i), F.S.
28
S. 744.361(12), F.S.
29
S. 744.367(1), F.S.
30
S. 744.367(3)(a), F.S.
31
S. 744.3675, F.S.
32
Ss. 393.063(21) and 393.12, F.S.
33
S. 393.063(12), F.S.
34
S. 393.12(2)(a), F.S.; see also Eighteenth Judicial Circuit, Seminole County, Florida, Florida Guardian Advocate Law and Information
(Jul. 2017), https://flcourts18.org/docs/sem/Florida_Guardian_Advocacy_Law_and_information_Guide.pdf. (last visited Mar. 1, 2023).
35
S. 744.3085, F.S.
36
S. 393.12(2)(a), F.S.
37
S. 393.12(2)(b), F.S. STORAGE NAME: h0813a.CJS PAGE: 5
DATE: 3/14/2023
A guardian advocate for a person with a developmental disability has the same powers, duties, and
responsibilities required of a guardian under the guardianship statute or as defined by court order
issued under the statute governing the appointment of guardian advocates.
38
Special Needs Trusts and Pooled Trusts
A special needs trust, sometimes called a supplemental needs trust, is a legal mechanism which allows
assets to be held on behalf of a person with disabilities without affecting his or her eligibility for means-
tested public benefits such as Medicaid or Supplemental Security Income (“SSI”).
39
Special needs trusts are meant to supplement the funds and services available through government
programs.
40
While assets held by the trust are not used to determine the person’s qualification for such
programs, there are regulations imposed regarding disbursements.
41
To create a valid special needs
trust, the trust must be established in a way that complies with federal law.
42
Specifically, a special
needs trust must:
Contain the assets of an individual under age 65;
Be established for an individual who has a disability that makes him or her substantially
unable to work;
43
Be established for the benefit of the individual;
Be established by the individual’s parent, grandparent, legal guardian, or a court; and
Reimburse the state for all of the medical assistance paid on behalf of the individual from any
remaining assets upon the individual’s death.
44
Special needs trusts can be either “first-party” or “third-party” trusts.
45
A first-party special needs trust is
created with assets belonging to an individual with disabilities, who becomes the “beneficiary.” The
funds typically consist of a personal injury settlement or an inheritance. The person must be under 65
at the time that the trust is established. Funds remaining in the trust at the beneficiary’s death must be
used to reimburse Medicaid for services to that individual before such funds can be distributed to
anyone else.
46
A third-party special needs trust is created with assets provided by a person other than the beneficiary,
such as a parent, other relative, or friend of the beneficiary.
47
The trust can be created and funded
during the life of the originator (known as an “inter vivos” trust) or as part of a last will and testament
(known as a “testamentary” trust). Upon the beneficiary’s death, there is no requirement to use residual
funds to reimburse Medicaid for services provided to the individual, and “remainder” beneficiaries may
be named to receive those assets.
48
Alternatively, a pooled trust is often a practical alternative for small estates or where a satisfactory
trustee is difficult to establish. Sub-accounts belonging to many beneficiaries are managed as a single
entity, usually by nonprofit corporations, which use the experience of social workers, money managers,
and attorneys specializing is special needs cases. Because many financial institutions do not handle
small special needs trusts, or charge fees that are not cost-effective for modest trusts, pooled trusts
can give families access to highly skilled trustees. Funds remaining at the beneficiary’s death are
typically divided between Medicaid and the nonprofit entity.
49
38
S. 393.12(10), F.S.
39
Special Needs Alliance, Special Needs Trusts and Personal Injury Settlements (2023), https://www.specialneedsalliance.org/special-
needs-101/special-needs-trusts-and-personal-injury-settlements/ (last visited Mar. 1, 2023).
40
Special Needs Alliance, Special Needs Trusts and Personal Injury Settlements (2023) https://www.specialneedsalliance.org/special-
needs-101/special-needs-trusts-and-personal-injury-settlements/ (last visited Mar. 1, 2023).
41
Id.
42
42 U.S.C. s. 1396p(d)(4).
43
See 42 U.S.C. s. 1382c(a)(3).
44
Id.
45
Special Needs Alliance, Special Needs Trusts and Personal Injury Settlements.
46
Id.
47
Id.
48
Id.
49
Id. STORAGE NAME: h0813a.CJS PAGE: 6
DATE: 3/14/2023
Similar to special needs trusts, pooled trusts must be established in a way that complies with federal
law.
50
Specifically, a pooled trust must:
Contain the assets of an individual of any age who has a disability that makes him or her
substantially unable to work;
51
Be established for the benefit of the individual;
Be established and managed by a nonprofit association;
Maintain a separate account for each beneficiary but pool the funds for investment and
management purposes;
Be established by the parent, grandparent, or legal guardian of the individual, by the
individual, or by a court; and
Reimburse the state for all of the medical assistance paid on behalf of the individual from any
remaining assets upon the individual’s death to the extent the funds are not retained by the
trust.
52
Effect of Proposed Changes
CS/HB 813 specifies that the legislative intent of the bill is to codify and clarify existing common law and
Florida case law which recognizes that the parents of a dependent adult child (DAC) have an obligation
to support that child after he or she turns 18. The bill further specifies that it is the intent of the
legislature to provide a framework of procedures by which a court must establish support for a DAC.
The bill creates s. 61.1255, F.S., to codify the common law obligation of a parent to support a DAC after
he or she reaches the age of majority. The bill defines the term “dependent adult child” to mean an
unmarried adult who is incapable of self-support as a result of physical or mental incapacity that began
before the person reached the age of 18 and requires that any right of a parent or other person to
decide where the dependent adult child will live be established in a guardianship proceeding brought
under the statutes governing developmental disabilities or guardianship.
The bill clarifies that language in the bill may not be construed to require the appointment of a guardian
advocate under ch. 393, F.S., or a guardianship under ch. 744, F.S., in order for a court to order
support for a dependent adult child. Further, the bill does not confer any obligation or duty for a
guardian advocate or guardian to pursue support for the DAC or ward, respectively. The bill identifies
specific DAC support guidelines the court must consider and seeks to create a consistent method for
handling such matters in courts throughout the state.
The bill specifies who may bring an action to establish support: the DAC, his or her agent under a
durable power of attorney, the guardian or guardian advocate, or a parent or another person on behalf
of the DAC. The bill provides that such support payments should be made directly to the DAC or his or
her representative and permits a portion of the support to be placed in a special needs trust or pooled
trust for the DAC’s benefit.
The bill specifies that an action to establish support for a DAC may be filed at any time after the DAC
turns 17.5 years old. However, the action may be filed earlier if a court order for support was
established prior to the DAC reaching the age of majority. Further, in a case where a court already has
continuing jurisdiction over support from a child support case, the parties are permitted to extend
support past the age of majority by written agreement. If the parties do not agree to extend support,
support for the DAC must then be established in a guardianship or other separate support proceeding;
it cannot be established under the continuing jurisdiction of the minor’s child support case.
The bill prohibits the Department of Revenue (DOR) from filing a petition to establish support for a DAC
or to modify or enforce a support order for a DAC. The bill clarifies the scope of the bill is limited to
support orders for DACs. Other decisions to be made on behalf of a DAC, like where the DAC will live,
must be established through a guardianship proceeding.
50
42 U.S.C. s. 1396p(d)(4)(C).
51
42 U.S.C. s. 1382c(a)(3).
52
Id. STORAGE NAME: h0813a.CJS PAGE: 7
DATE: 3/14/2023
The bill amends s. 61.29, F.S., to clarify that a court should not use the support guidelines for a minor
child under s. 61.29, F.S.; instead, the bill creates s. 61.31, F.S., a more specific statute to direct courts
how to calculate support for a DAC. In calculating support to be paid after a DAC reaches age 18, a
court must consider all of the following factors:
The DAC’s income and assets.
Any existing or future needs of the DAC which are directly related to his or her mental or
physical incapacity and the substantial care and personal supervision directly required by
or related to that incapacity.
Whether a parent pays for or will pay for the care or supervision of the DAC or provides or
will provide substantial care or personal supervision to the DAC.
The financial resources available to each parent for the support, care, and supervision of
the DAC.
Any other financial resources or other resources or programs available for the support,
care, and supervision of the DAC.
The bill further requires a court to consider any state or federal programs or benefits that the DAC is
currently receiving and the effect that ordering support would have on his or her continued eligibility for
such programs. As such, the bill specifies that a court may assign a portion of the support payment to
be placed in a special needs trust or a pooled trust established for the DAC. The bill prohibits a court
from ordering support that will cause the DAC to be ineligible for programs he or she is currently
participating in, or programs and services for which he or she is reasonably expected to become
eligible to participate in after turning 18.
The bill further clarifies that a guardian advocate may collect support payments on behalf of the DAC.
Under the bill, any modifications to support for a DAC must be made in accordance with the
requirements established for regular child support under chapter 61. The bill clarifies jurisdiction over a
DAC and defines the court’s role in such a proceeding. The bill further specifies that no obligation or
duty is conferred on a guardian advocate or guardian to pursue support for the person with a
developmental disability.
The bill also creates s. 744.1013, F.S., specifying that the court has jurisdiction to create and enforce
orders of support for DACs.
The effective date of the bill is July 1, 2023.
B. SECTION DIRECTORY:
Section 1: Creates s. 61.1255, F.S., relating to support of dependent adult children.
Section 2: Amends s. 61.13, F.S., relating to support of children.
Section 3: Amends s. 61.29, F.S., relating to child support guidelines.
Section 4: Amends s. 61.30, F.S., relating to child support guidelines.
Section 5: Creates s. 61.31, F.S., relating to amount of support for a dependent adult child.
Section 6: Amends s. 393.12, F.S., relating to appointment of a guardian advocate.
Section 7: Amends s. 742.031, F.S., relating to hearings.
Section 8: Amends s. 742.06, F.S., relating to jurisdiction retained for future orders.
Section 9: Creates s. 744.1013, F.S., relating to jurisdiction.
Section 10: Amends s. 744.3021, F.S., relating to guardians of minors.
Section 11:Creates s. 744.422, F.S., relating to petition for support of a dependent adult child.
Section 12: Provides an effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues: STORAGE NAME: h0813a.CJS PAGE: 8
DATE: 3/14/2023
None.
2. Expenditures:
None. However, the bill may increase the caseload for circuit courts.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may have an impact on the private sector by creating a statutory obligation for a parent or
parents to financially support their dependent adult child after he or she turns 18. This may create a
significant financial burden on parents of DACs. However, the guidelines created in the bill take into
account the parent or parents’ ability to pay financial support, which may limit the impact on low-income
parents of DACs.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
Not applicable.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 14, 2023, the Civil Justice Subcommittee adopted a proposed committee substitute (PCS) and
reported the bill favorably as a committee substitute. The PCS differed from the original bill in that it:
Changed the title of the bill to Support for Dependent Adult Children.
Prohibited a court from ordering support that would cause the DAC to become ineligible for
programs he or she participates in or would reasonably be expected to be eligible to participate in.
Clarified that the bill does not confer any obligation or duty for a guardian advocate or guardian to
pursue support for the DAC or ward, respectively.
Authorized, rather than required, the court to order a father to pay attorney fees under certain
circumstances in paternity cases.
This analysis is drafted to the committee substitute as passed by the Civil Justice Subcommittee. STORAGE NAME: h0813a.CJS PAGE: 9
DATE: 3/14/2023