HB 1119 2023
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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 withholding or withdrawal of life -2
prolonging procedures; amending s. 744.3215, F.S.; 3
authorizing the court to delegate the right to consent 4
to the withholding or withdrawal of life -prolonging 5
procedures of incapacitated persons in certain 6
circumstances; amending ss. 744.363 and 744.3675, 7
F.S.; making technical changes; requiring initial and 8
annual guardianship plans, respectively, to state 9
whether any power under the ward's preexisting order 10
not to resuscitate or advance directive is revoked, 11
modified, suspended, or transferred to the guardian; 12
requiring such plans to state the date of such action; 13
establishing certain authority without additio nal 14
court approval; requiring a guardian to obtain court 15
approval to exercise transferred power to execute an 16
order not to resuscitate or consent to withhold or 17
withdraw life-prolonging procedures under certain 18
circumstances; creating s. 744.4431, F.S.; au thorizing 19
a guardian to petition a court for approval to consent 20
to withhold or withdraw life -prolonging procedures 21
under certain circumstances; specifying requirements 22
for the petition; requiring the guardian to serve 23
certain notices; specifying procedure s that must be 24
followed by the court in acting on the petition; 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
authorizing the guardian to withhold or withdraw life -26
prolonging procedures without a hearing or court 27
approval under certain circumstances; amending s. 28
744.441, F.S.; making technical changes ; deleting 29
provisions regarding the authority of certain 30
guardians to sign an order not to resuscitate; 31
providing an effective date. 32
33
Be It Enacted by the Legislature of the State of Florida: 34
35
Section 1. Paragraph (h) is added to subsection (3) o f 36
section 744.3215, Florida Statutes, to read: 37
744.3215 Rights of persons determined incapacitated. — 38
(3) Rights that may be removed from a person by an order 39
determining incapacity and which may be delegated to the 40
guardian include the right: 41
(h) To consent to the withholding or withdrawal of life -42
prolonging procedures as defined in s. 765.101, subject to court 43
approval as provided in s. 744.4431 if there is a conflict over 44
or objection to the proposed exercise of that authority. 45
Section 2. Present subsections (2) through (6) of section 46
744.363, Florida Statutes, are redesignated as subsections (3) 47
through (7), respectively, paragraph (g) is added to subsection 48
(1) and a new subsection (2) is added to that section, and 49
paragraph (f) of subsection ( 1) of that section is amended, to 50
HB 1119 2023
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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
read: 51
744.363 Initial guardianship plan. — 52
(1) The initial guardianship plan shall include all of the 53
following: 54
(f)1. A list of any preexisting : 55
a. Orders not to resuscitate as described in executed 56
under s. 401.45(3) and the date such orders were signed; or 57
b. Preexisting Advance directives, as defined in s. 58
765.101 and, the date such directives were signed. an order or 59
directive was signed, 60
2. For each item listed under subparagraph 1., the plan 61
must state whether the such order or directive has been revoked, 62
modified, or suspended by the court or the extent to which 63
authority under an order or directive has been transferred by 64
the court to the guardian. The plan must also state the date of 65
such action by the c ourt. 66
(g) , and A description of the steps taken to identify and 67
locate a the preexisting order not to resuscitate or advance 68
directive. 69
(2) A surrogate designated by the ward in an advance 70
directive or an agent designated by the ward in a durable power 71
of attorney who retains authority to make health care decisions 72
under the guardianship plan may exercise retained authority 73
without additional approval by the court. Any authority of the 74
surrogate to carry out the instructions in the advance directive 75
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or authority of the agent under a durable power of attorney 76
which is transferred to the guardian may be exercised by the 77
guardian, consistent with the advance directive or durable power 78
of attorney, without additional approval by the court. Any 79
authority transferred to the guardian to execute an order not to 80
resuscitate or to consent to withhold or withdraw life -81
prolonging procedures is subject to court approval pursuant to 82
s. 744.441 if there is a conflict over or objection to a 83
proposed exercise of that authority. 84
Section 3. Present subsections (2), (3), and (4) of 85
section 744.3675, Florida Statutes, are redesignated as 86
subsections (3), (4), and (5), respectively, paragraph (e) is 87
added to subsection (1) and a new subsection (2) is added to 88
that section, and paragraph (d) of subsection (1) of that 89
section is amended, to read: 90
744.3675 Annual guardianship plan. —Each guardian of the 91
person must file with the court an annual guardianship plan 92
which updates information about the condition of the ward. The 93
annual plan must specify the current needs of the ward and how 94
those needs are proposed to be met in the coming year. 95
(1) Each plan for an adult ward must, if applicable, 96
include: 97
(d) 1. A list of any preexisting : 98
a. Orders not to resuscitate as described in executed 99
under s. 401.45(3) and the date such orders were signed; or 100
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b. Preexisting Advance directives, as defined in s. 101
765.101 and, the date such directives were signed. an order or 102
directive was signed, 103
2. For each item listed under subparagraph 1., the plan 104
must state whether the such order or directive has been revoked, 105
modified, or suspended by the court or the extent to which 106
authority under an order or directive has been transferred by 107
the court to the guardian. The plan must also state the date of 108
any revocation, modification, or suspension by the court. 109
(e) , and A description of the steps taken to identify and 110
locate a the preexisting order not to resuscitate or advance 111
directive. 112
(2) A surrogate designated by the ward in an advance 113
directive or an agent designated by the ward in a durable power 114
of attorney who retains authority to make health care decisions 115
under the guardianship plan may exercise retained authority 116
without additional approval by the court. Any authority of the 117
surrogate to carry out the instructions in the advance directive 118
or authority of the agent under a durable power of attorney 119
which is transferred to the guardian may be exercised by the 120
guardian, consistent with the advance directive or durable power 121
of attorney, without additional approval by the court. Any 122
authority transferred to the guardian to execute an order not to 123
resuscitate or to consent to withhold or withdraw life -124
prolonging procedures is subject to court approval pursuant to 125
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s. 744.441 if there is a conflict over or objection to a 126
proposed exercise of that authority. 127
Section 4. Section 744.4431, Florida Statutes, is created 128
to read: 129
744.4431 Guardianship power regarding life -prolonging 130
procedures.— 131
(1) A guardian of a ward's person may petition a court 132
pursuant to the Florida Probate Rules for authority to consent 133
to withhold or withdraw life -prolonging procedures for any of 134
the following reasons: 135
(a) The right to consent to withhold or withdraw life -136
prolonging procedures has not been delegated to the guardian in 137
the order appointing the guardian. 138
(b) Sufficient authority under the ward's preexisting 139
advance directive or durab le power of attorney has not been 140
transferred to the guardian. 141
(c) The proposed withholding or withdrawal of life -142
prolonging procedures is in conflict with the wishes, as 143
presently or previously expressed, of the ward, the ward's next 144
of kin, or any interested person. 145
(2) The petition by the guardian must contain all of the 146
following: 147
(a) A description of the proposed action for which court 148
approval is sought and documentation of any existing authority 149
for the guardian to make health care decisions fo r the ward. 150
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(b) A statement regarding any known objections to the 151
proposed action or of conflicts between the guardian's proposed 152
action to withhold or withdraw life -prolonging procedures and 153
the wishes, presently or previously expressed, of the ward, th e 154
ward's next of kin, or any interested person. 155
(c) A description of the circumstances or evidence and 156
affidavits or supporting documentation showing that the proposed 157
action satisfies the applicable criteria in s. 765.401 or s. 158
765.404. 159
(3) The guardian must serve notice of the petition, and of 160
any hearing, upon interested persons and the ward's next of kin, 161
unless waived by the court. 162
(4) The court must hold a hearing on the petition if the 163
court has been notified of an objection or conflict or if t he 164
court has insufficient information to determine whether the 165
criteria for granting the requested authority has been met. 166
(5) If a hearing is required and exigent circumstances are 167
alleged, the court must hold a preliminary hearing within 72 168
hours after the petition is filed and do one of the following: 169
(a) Rule on the relief requested immediately after the 170
preliminary hearing. 171
(b) Conduct an evidentiary hearing within 4 days after the 172
preliminary hearing and rule on the relief requested immediately 173
after the evidentiary hearing. 174
(6) Notwithstanding the requirements for court approval 175
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imposed under this section, and if authority to withhold or 176
withdraw life-prolonging procedures has not been vested in 177
another person, the guardian may, without a hear ing or prior 178
court approval, consent to the withholding or withdrawal of 179
life-prolonging procedures if all of the following apply: 180
(a) The ward is in a hospital and at least two of the 181
ward's treating physicians state in writing that there is a 182
substantial likelihood that the ward's death will occur within 183
the next 72 hours. 184
(b) There is no known objection to the granting of a 185
petition to withhold or withdraw life -prolonging procedures. 186
(c) The hospital ethics committee has met and agrees with 187
the guardian's proposal to withhold or withdraw life -prolonging 188
procedures. If the hospital does not have an ethics committee, 189
it may seek approval by the ethics committee of another facility 190
or a community-based ethics committee approved by the Florida 191
Bioethics Network. 192
Section 5. Section 744.441, Florida Statutes, is amended 193
to read: 194
744.441 Powers of guardian upon court approval. —After 195
obtaining approval of the court pursuant to a petition for 196
authorization to act ,: 197
(1) a plenary guardian of the property, or a limited 198
guardian of the property within the powers granted by the order 199
appointing the guardian or an approved annual or amended 200
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guardianship report, may do all of the following : 201
(1)(a) Perform, compromise, or r efuse performance of a 202
ward's contracts that continue as obligations of the estate, as 203
he or she may determine under the circumstances. 204
(2)(b) Execute, exercise, or release any powers as 205
trustee, personal representative, custodian for minors, 206
conservator, or donee of any power of appointment or other power 207
that the ward might have lawfully exercised, consummated, or 208
executed if not incapacitated, if the best interest of the ward 209
requires such execution, exercise, or release. 210
(3)(c) Make ordinary or extr aordinary repairs or 211
alterations in buildings or other structures; demolish any 212
improvements; or raze existing, or erect new, party walls or 213
buildings. 214
(4)(d) Subdivide, develop, or dedicate land to public use; 215
make or obtain the vacation of plats and ad just boundaries; 216
adjust differences in valuation on exchange or partition by 217
giving or receiving consideration; or dedicate easements to 218
public use without consideration. 219
(5)(e) Enter into a lease as lessor or lessee for any 220
purpose, with or without opti on to purchase or renew, for a term 221
within, or extending beyond, the period of guardianship. 222
(6)(f) Enter into a lease or arrangement for exploration 223
and removal of minerals or other natural resources or enter into 224
a pooling or unitization agreement. 225
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(7)(g) Abandon property when, in the opinion of the 226
guardian, it is valueless or is so encumbered or in such 227
condition that it is of no benefit to the estate. 228
(8)(h) Pay calls, assessments, and other sums chargeable 229
or accruing against, or on account of, securities. 230
(9)(i) Borrow money, with or without security, to be 231
repaid from the property or otherwise and advance money for the 232
protection of the estate. 233
(10)(j) Effect a fair and reasonable compromise with any 234
debtor or obligor or extend, renew, or in any manner modify the 235
terms of any obligation owing to the estate. 236
(11)(k) Prosecute or defend claims or proceedings in any 237
jurisdiction for the protection of the estate and of the 238
guardian in the performance of his or her duties. Before 239
authorizing a guardian to bring an action described in s. 240
736.0207, the court shall first find that the action appears to 241
be in the ward's best interests during the ward's probable 242
lifetime. There shall be a rebuttable presumption that an action 243
challenging the ward's revocation of all or part of a trust is 244
not in the ward's best interests if the revocation relates 245
solely to a devise. This subsection paragraph does not preclude 246
a challenge after the ward's death. If the court denie s a 247
request that a guardian be authorized to bring an action 248
described in s. 736.0207, the court must shall review the 249
continued need for a guardian and the extent of the need for 250
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delegation of the ward's rights. 251
(12)(l) Sell, mortgage, or lease any real or personal 252
property of the estate, including homestead property, or any 253
interest therein for cash or credit, or for part cash and part 254
credit, and with or without security for unpaid balances. 255
(13)(m) Continue any unincorporated business or venture in 256
which the ward was engaged. 257
(14)(n) Purchase the entire fee simple title to real 258
estate in this state in which the guardian has no interest, but 259
the purchase may be made only for a home for the ward, to 260
protect the home of the ward or the ward's interest , or as a 261
home for the ward's dependent family. If the ward is a married 262
person and the home of the ward or of the dependent family of 263
the ward is owned by the ward and spouse as an estate by the 264
entirety and the home is sold pursuant to the authority of 265
subsection (12) paragraph (l), the court may authorize the 266
investment of any part or all of the proceeds from the sale 267
toward the purchase of a fee simple title to real estate in this 268
state for a home for the ward or the dependent family of the 269
ward as an estate by the entirety owned by the ward and spouse. 270
If the guardian is authorized to acquire title to real estate 271
for the ward or dependent family of the ward as an estate by the 272
entirety in accordance with the preceding provisions, the 273
conveyance must shall be in the name of the ward and spouse and 274
shall be effective to create an estate by the entirety in the 275
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ward and spouse. 276
(15)(o) Exercise any option contained in any policy of 277
insurance payable to, or inuring to the benefit of, the ward. 278
(16)(p) Pay reasonable funeral, interment, and grave 279
marker expenses for the ward from the ward's estate. 280
(17)(q) Make gifts of the ward's property to members of 281
the ward's family in estate and income tax planning procedures. 282
(18)(r) When the ward's will evinces an objective to 283
obtain a United States estate tax charitable deduction by use of 284
a split interest trust (as that term is defined in s. 736.1201), 285
but the maximum charitable deduction otherwise allowable will 286
not be achieved in whole or in part, execute a c odicil on the 287
ward's behalf amending said will to obtain the maximum 288
charitable deduction allowable without diminishing the aggregate 289
value of the benefits of any beneficiary under such will. 290
(19)(s) Create or amend revocable trusts or create 291
irrevocable trusts of property of the ward's estate which may 292
extend beyond the disability or life of the ward in connection 293
with estate, gift, income, or other tax planning or in 294
connection with estate planning. The court shall retain 295
oversight of the assets transfe rred to a trust, unless otherwise 296
ordered by the court. 297
(20)(t) Renounce or disclaim any interest by testate or 298
intestate succession or by inter vivos transfer. 299
(21)(u) Enter into contracts that are appropriate for, and 300
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in the best interest of, the war d. 301
(22)(v) As to a minor ward, pay expenses of the ward's 302
support, health, maintenance, and education, if the ward's 303
parents, or either of them, are alive. 304
(2) A plenary guardian or a limited guardian of a ward may 305
sign an order not to resuscitate as p rovided in s. 401.45(3). 306
When a plenary guardian or a limited guardian of a ward seeks to 307
obtain approval of the court to sign an order not to 308
resuscitate, if required by exigent circumstances, the court 309
must hold a preliminary hearing within 72 hours afte r the 310
petition is filed, and: 311
(a) Rule on the relief requested immediately after the 312
preliminary hearing; or 313
(b) Conduct an evidentiary hearing not later than 4 days 314
after the preliminary hearing and rule on the relief requested 315
immediately after the e videntiary hearing. 316
Section 6. This act shall take effect July 1, 2023. 317