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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 certai n 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 revo ked, 11
modified, suspended, or transferred to the guardian; 12
requiring such plans to state the dates of such 13
action; establishing certain authority without 14
additional court approval; requiring a guardian to 15
obtain court approval to exercise transferred power to 16
execute an order not to resuscitate or consent to 17
withhold or withdraw life -prolonging procedures under 18
certain circumstances; creating s. 744.4431, F.S.; 19
requiring court approval for decisions to withhold or 20
withdraw life-prolonging procedures; specify ing 21
requirements for a petition for court approval to 22
consent to withhold or withdraw life -prolonging 23
procedures; requiring the guardian to serve certain 24
notices; specifying procedures that must be followed 25
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by the court in acting on the petition; providing 26
exceptions to the requirement for court approval; 27
requiring the guardian to provide certain notice to 28
the court within a specified timeframe; amending s. 29
744.441, F.S.; making technical changes; deleting 30
provisions regarding the authority of certain 31
guardians to sign an order not to resuscitate; 32
providing an effective date. 33
34
Be It Enacted by the Legislature of the State of Florida: 35
36
Section 1. Paragraph (h) is added to subsection (3) of 37
section 744.3215, Florida Statutes, to read: 38
744.3215 Rights of persons determined incapacitated. — 39
(3) Rights that may be removed from a person by an order 40
determining incapacity and which may be delegated to the 41
guardian include the right: 42
(h) To consent to the withholding or withdrawal of life -43
prolonging procedures as defined in s. 765.101, subject to court 44
approval as required in s. 744.4431. 45
Section 2. Subsections (2) through (6) of section 744.363, 46
Florida Statutes, are renumbered as subsections (3) through (7), 47
respectively, paragraph (f) of subsecti on (1) is amended, 48
paragraph (g) is added to subsection (1), and a new subsection 49
(2) is added to that section, to read: 50
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744.363 Initial guardianship plan. — 51
(1) The initial guardianship plan shall include all of the 52
following: 53
(f)1. A list of any preexisting: 54
a. Orders not to resuscitate executed in accordance with 55
under s. 401.45(3) and the dates such orders were signed; or 56
b. Preexisting Advance directives, as defined in s. 57
765.101 and, the dates such directives were signed. date an 58
order or directive was signed, 59
2. For each item listed under subparagraph 1., the plan 60
must state whether the such order or directive has been revoked, 61
modified, or suspended by the court or the extent to which 62
authority under an order or directive has been transfer red by 63
the court to the guardian, and the date of such action by the 64
court. 65
(g) , and A description of the steps taken to identify and 66
locate a the preexisting order not to resuscitate or advance 67
directive. 68
(2) A surrogate designated by the ward in an advance 69
directive or an agent designated by the ward in a durable power 70
of attorney who retains authority to make health care decisions 71
under the guardianship plan may exercise retained authority 72
without additional approval by the court. Any authority of the 73
surrogate to carry out the instructions in the advance directive 74
or authority of the agent under a durable power of attorney 75
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which is transferred to the guardian may be exercised by the 76
guardian, consistent with the advance directive or durable power 77
of attorney, without additional approval by the court. 78
Section 3. Subsections (2), (3), and (4) of section 79
744.3675, Florida Statutes, are renumbered as subsections (3), 80
(4), and (5), respectively, paragraph (d) of subsection (1) is 81
amended, paragraph (e) is added to subsection (1), and a new 82
subsection (2) is added to that section, to read: 83
744.3675 Annual guardianship plan. —Each guardian of the 84
person must file with the court an annual guardianship plan 85
which updates information about the condition of the ward. The 86
annual plan must specify the current needs of the ward and how 87
those needs are proposed to be met in the coming year. 88
(1) Each plan for an adult ward must, if applicable, 89
include: 90
(d) 1. A list of any preexisting : 91
a. Orders not to resuscitate executed in accordance with 92
under s. 401.45(3) and the dates such orders were signed; or 93
b. Preexisting Advance directives, as defined in s. 94
765.101 and, the dates such directives were signed. date an 95
order or directive was signed, 96
2. For each item listed under subparagraph 1., the plan 97
must state whether the such order or directive has been revoked, 98
modified, or suspended by the court or the extent to which 99
authority under an order or directive has been transferred by 100
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the court to the guardian, and the date of such action by the 101
court. 102
(e) , and A description of the steps taken to identify and 103
locate a the preexisting order not to res uscitate or advance 104
directive. 105
(2) A surrogate designated by the ward in an advance 106
directive or an agent designated by the ward in a durable power 107
of attorney who retains authority to make health care decisions 108
under the guardianship plan may exercise r etained authority 109
without additional approval by the court. Any authority of the 110
surrogate to carry out the instructions in the advance directive 111
or authority of the agent under a durable power of attorney 112
which is transferred to the guardian may be exerci sed by the 113
guardian, consistent with the advance directive or durable power 114
of attorney, without additional approval by the court. 115
Section 4. Section 744.4431, Florida Statutes, is created 116
to read: 117
744.4431 Guardianship power regarding life -prolonging 118
procedures.— 119
(1) Except as provided in this section, decisions to 120
withhold or withdraw life -prolonging procedures for a ward must 121
be approved by the court. A guardian appointed to act on behalf 122
of a ward's person must petition the court pursuant to the 123
Florida Probate Rules for authority to consent to withhold or 124
withdraw life-prolonging procedures. 125
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(2) The petition by the guardian must contain all of the 126
following: 127
(a) A description of the proposed action for which court 128
approval is sought and docu mentation of any authority for the 129
guardian to make health care decisions on behalf of the ward. 130
(b) Documentation showing the guardian has notified the 131
ward's known next of kin and any interested persons of the 132
guardian's intent to file the petition. 133
(c) A statement regarding any known objections to the 134
proposed decision or of conflicts between the proposed decision 135
and the wishes, presently or previously expressed, of the ward, 136
the ward's next of kin, or any interested person. 137
(d) A description of t he circumstances or evidence and 138
affidavits or supporting documentation showing that the proposed 139
decision satisfies the criteria in s. 765.305, s. 765.401(3), or 140
s. 765.404, as applicable. 141
(3) The guardian must serve notice of the petition, and of 142
any hearing, upon interested persons and the ward's next of kin. 143
(4) The court must hold a hearing on the petition if the 144
court has been notified of an objection or conflict or if the 145
court has insufficient information to determine whether the 146
criteria for granting the petition has been met. 147
(5) If a hearing is required and exigent circumstances are 148
alleged, the court must hold a preliminary hearing within 72 149
hours after the petition is filed and do one of the following: 150
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(a) Rule on the relief requested im mediately after the 151
preliminary hearing; or 152
(b) Conduct an evidentiary hearing within 4 days after the 153
preliminary hearing and rule on the relief requested immediately 154
after the evidentiary hearing. 155
(6) If the decision to withhold or withdraw life -156
prolonging procedures does not involve any known conflicts with 157
the wishes, as presently or previously expressed, of the ward, 158
the ward's next of kin, or any interested person, then court 159
approval is not required for the following decisions: 160
(a) A decision by a surrogate designated by the ward in an 161
advance directive or by an agent designated by the ward in a 162
durable power of attorney who retains authority to make health 163
care decisions under the guardianship plan. 164
(b) A decision by a surrogate designated by the ward in an 165
advance directive or by an agent designated by the ward in a 166
durable power of attorney who retains authority to make health 167
care decisions under the guardianship plan to carry out the 168
instructions in, or take actions consistent with, the wa rd's 169
advance directive. 170
(c) A decision by a guardian to whom authority has been 171
granted by the court to carry out the instructions in, or to 172
take actions consistent with, the ward's advance directive. 173
(7) Court approval is not required for a decision t o 174
execute an order not to resuscitate, as described in s. 175
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401.45(3)(a), if the ward is in a hospital and both of the 176
following occur: 177
(a) The ward's primary physician and at least one other 178
consulting physician document that: 179
1. There is no reasonable medical probability for recovery 180
from or a cure of the ward's underlying medical condition; 181
2. The ward is in an end -stage condition or that the 182
ward's medical condition is in an inexorable and irreversible 183
decline and that the ward's death is likely to occur in the near 184
future; and 185
3. Resuscitation will cause the ward physical harm or 186
pain. 187
(b) The guardian has notified the ward's known next of kin 188
and any interested persons and the decision does not involve any 189
known conflicts with the wishes, as pr esently or previously 190
expressed, of the ward, the ward's next of kin, or any 191
interested person. 192
193
The guardian must notify the court of the execution of an order 194
not to resuscitate within 2 business days after such execution. 195
Section 5. Section 744.441, Florida Statutes, is amended 196
to read: 197
744.441 Powers of guardian upon court approval. —After 198
obtaining approval of the court pursuant to a petition for 199
authorization to act ,: 200
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(1) a plenary guardian of the property, or a limited 201
guardian of the property within the powers granted by the order 202
appointing the guardian or an approved annual or amended 203
guardianship report, may do all of the following : 204
(1)(a) Perform, compromise, or refuse performance of a 205
ward's contracts that continue as obligations of the estate, as 206
he or she may determine under the circumstances. 207
(2)(b) Execute, exercise, or release any powers as 208
trustee, personal representative, custodian for minors, 209
conservator, or donee of any power of appointment or other power 210
that the ward might h ave lawfully exercised, consummated, or 211
executed if not incapacitated, if the best interest of the ward 212
requires such execution, exercise, or release. 213
(3)(c) Make ordinary or extraordinary repairs or 214
alterations in buildings or other structures; demolish any 215
improvements; or raze existing, or erect new, party walls or 216
buildings. 217
(4)(d) Subdivide, develop, or dedicate land to public use; 218
make or obtain the vacation of plats and adjust boundaries; 219
adjust differences in valuation on exchange or partition b y 220
giving or receiving consideration; or dedicate easements to 221
public use without consideration. 222
(5)(e) Enter into a lease as lessor or lessee for any 223
purpose, with or without option to purchase or renew, for a term 224
within, or extending beyond, the period of guardianship. 225
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(6)(f) Enter into a lease or arrangement for exploration 226
and removal of minerals or other natural resources or enter into 227
a pooling or unitization agreement. 228
(7)(g) Abandon property when, in the opinion of the 229
guardian, it is valueless or is so encumbered or in such 230
condition that it is of no benefit to the estate. 231
(8)(h) Pay calls, assessments, and other sums chargeable 232
or accruing against, or on account of, secu rities. 233
(9)(i) Borrow money, with or without security, to be 234
repaid from the property or otherwise and advance money for the 235
protection of the estate. 236
(10)(j) Effect a fair and reasonable compromise with any 237
debtor or obligor or extend, renew, or in an y manner modify the 238
terms of any obligation owing to the estate. 239
(11)(k) Prosecute or defend claims or proceedings in any 240
jurisdiction for the protection of the estate and of the 241
guardian in the performance of his or her duties. Before 242
authorizing a guardian to bring an action described in s. 243
736.0207, the court shall first find that the action appears to 244
be in the ward's best interests during the ward's probable 245
lifetime. There shall be a rebuttable presumption that an action 246
challenging the ward's revoc ation of all or part of a trust is 247
not in the ward's best interests if the revocation relates 248
solely to a devise. This subsection paragraph does not preclude 249
a challenge after the ward's death. If the court denies a 250
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request that a guardian be authorized to bring an action 251
described in s. 736.0207, the court must shall review the 252
continued need for a guardian and the extent of the need for 253
delegation of the ward's rights. 254
(12)(l) Sell, mortgage, or lease any real or personal 255
property of the estate, includi ng homestead property, or any 256
interest therein for cash or credit, or for part cash and part 257
credit, and with or without security for unpaid balances. 258
(13)(m) Continue any unincorporated business or venture in 259
which the ward was engaged. 260
(14)(n) Purchase the entire fee simple title to real 261
estate in this state in which the guardian has no interest, but 262
the purchase may be made only for a home for the ward, to 263
protect the home of the ward or the ward's interest, or as a 264
home for the ward's dependent fami ly. If the ward is a married 265
person and the home of the ward or of the dependent family of 266
the ward is owned by the ward and spouse as an estate by the 267
entirety and the home is sold pursuant to the authority of 268
subsection (12) paragraph (l), the court may authorize the 269
investment of any part or all of the proceeds from the sale 270
toward the purchase of a fee simple title to real estate in this 271
state for a home for the ward or the dependent family of the 272
ward as an estate by the entirety owned by the ward and spouse. 273
If the guardian is authorized to acquire title to real estate 274
for the ward or dependent family of the ward as an estate by the 275
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entirety in accordance with the preceding provisions, the 276
conveyance must shall be in the name of the ward and spouse and 277
shall be effective to create an estate by the entirety in the 278
ward and spouse. 279
(15)(o) Exercise any option contained in any policy of 280
insurance payable to, or inuring to the benefit of, the ward. 281
(16)(p) Pay reasonable funeral, interment, and grave 282
marker expenses for the ward from the ward's estate. 283
(17)(q) Make gifts of the ward's property to members of 284
the ward's family in estate and income tax planning procedures. 285
(18)(r) When the ward's will evinces an objective to 286
obtain a United States estat e tax charitable deduction by use of 287
a split interest trust (as that term is defined in s. 736.1201), 288
but the maximum charitable deduction otherwise allowable will 289
not be achieved in whole or in part, execute a codicil on the 290
ward's behalf amending said wi ll to obtain the maximum 291
charitable deduction allowable without diminishing the aggregate 292
value of the benefits of any beneficiary under such will. 293
(19)(s) Create or amend revocable trusts or create 294
irrevocable trusts of property of the ward's estate whi ch may 295
extend beyond the disability or life of the ward in connection 296
with estate, gift, income, or other tax planning or in 297
connection with estate planning. The court shall retain 298
oversight of the assets transferred to a trust, unless otherwise 299
ordered by the court. 300
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(20)(t) Renounce or disclaim any interest by testate or 301
intestate succession or by inter vivos transfer. 302
(21)(u) Enter into contracts that are appropriate for, and 303
in the best interest of, the ward. 304
(22)(v) As to a minor ward, pay expenses of the ward's 305
support, health, maintenance, and education, if the ward's 306
parents, or either of them, are alive. 307
(2) A plenary guardian or a limited guardian of a ward may 308
sign an order not to resuscitate as provided in s. 401.45(3). 309
When a plenary guardian or a limited guardian of a ward seeks to 310
obtain approval of the court to sign an order not to 311
resuscitate, if required by exigent circumstances, the court 312
must hold a preliminary hearing within 72 hours after the 313
petition is filed, and: 314
(a) Rule on the relief requested immediately after the 315
preliminary hearing; or 316
(b) Conduct an evidentiary hearing not later than 4 days 317
after the preliminary hearing and rule on the relief requested 318
immediately after the evidentiary hearing. 319
Section 6. This act shall take effect July 1, 2023. 320