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A bill to be entitled 1
An act relating to withholding or withdrawal of life -2
prolonging procedures; amending s. 744.3115, F.S.; 3
revising when a court may modify or revoke certain 4
authority of a surrogate; requiring a hearing before 5
the court can modify or revoke authority of a 6
surrogate; requiring a guardian to file an advance 7
directive for health care with the court within a 8
specified timeframe under certain circumstances; 9
requiring the court to make certain findings; 10
authorizing a surrogate or agent to make health care 11
decisions without order of the court under certain 12
circumstances; amending s. 744.3215, F.S.; revising 13
the rights that may be removed from a person by an 14
order determining incapacity; requiring court approval 15
to withhold or withdraw life -prolonging procedures of 16
incapacitated persons in certain circumstances; 17
amending ss. 744.363 and 744.3675, F.S.; making 18
technical changes; requiring initial and annual 19
guardianship plans, respectively, to state whether any 20
power under the ward's preexisting order not to 21
resuscitate or advance directive is revoked, modified, 22
or suspended; requiring such plans to state the dates 23
of such action; creating s. 744.4431, F.S.; requiring 24
court approval for decisions to withhold or withdraw 25
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life-prolonging procedures or to execute an order n ot 26
to resuscitate; specifying requirements for a petition 27
for court approval to consent to withhold or withdraw 28
life-prolonging procedures or to execute an order not 29
to resuscitate; requiring the professional guardian to 30
prove certain facts by clear and co nvincing evidence; 31
requiring the professional guardian to serve certain 32
notices; requiring the court to hold a hearing if 33
certain circumstances exist; specifying procedures 34
that must be followed by the court in acting on the 35
petition; providing exceptions to the requirement for 36
court approval; requiring the professional guardian to 37
provide certain written notice to the court within a 38
specified timeframe; amending s. 744.441, F.S.; making 39
technical changes; deleting provisions regarding the 40
authority of certain guardians to sign an order not to 41
resuscitate; providing an effective date. 42
43
Be It Enacted by the Legislature of the State of Florida: 44
45
Section 1. Section 744.3115, Florida Statutes, is amended 46
to read: 47
744.3115 Advance directives for health care.—In each 48
proceeding in which a guardian is appointed under this chapter, 49
the court shall determine whether the ward, prior to incapacity, 50
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has executed any valid advance directive under chapter 765. 51
(1) For purposes of this section, the term "health care 52
decision" has the same meaning as in s. 765.101. 53
(2) If any advance directive exists, the court shall 54
specify in its order and letters of guardianship what authority, 55
if any, the guardian shall exercise over the ward with regard to 56
health care decisions and what authority, if any, the surrogate 57
shall continue to exercise over the ward with regard to health 58
care decisions. 59
(3) Pursuant to the grounds listed in s. 765.105, or if 60
the surrogate is unwilling or unable to act, the court may, upon 61
motion from any interested person or upon its own motion, may, 62
with notice to the surrogate ; next of kin, if known; and any 63
other interested persons as the court may direct appropriate 64
parties, modify, or revoke the authority of the surrogate to 65
make health care decisions for the ward. Any order revoking or 66
modifying the authority of the surrogate must be supported by 67
specific written findings of fact after a hearing on the motion . 68
(4) If a the court order provides that a the guardian is 69
responsible for making health care decisions for the ward, the 70
guardian shall assume the responsibilities of the surrogate 71
which are provided in s. 765.205. For purposes of this section, 72
the term "health care decision" has the same meaning as in s. 73
765.101. 74
(5) If a guardian d iscovers an advance directive for 75
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health care for the ward after the guardian is appointed, the 76
guardian must file the advance directive with the court as soon 77
after its discovery as is reasonable, but no later than the due 78
date for the initial guardianshi p report or the annual 79
guardianship plan or the filing date for a petition seeking to 80
exercise authority regarding life -prolonging procedures in 81
compliance with s. 744.4431, whichever is earlier. After the 82
guardian files an advance directive for health car e, the court 83
must determine if the advance directive is an alternative to 84
guardianship and what authority, if any, the guardian will 85
exercise over health care decisions for the ward pursuant to 86
subsections (3) and (4). 87
(6) Upon a finding by the court tha t a health care 88
surrogate designation or a durable power of attorney is an 89
alternative to guardianship for health care decisions, the 90
surrogate or agent may exercise the right to make health care 91
decisions for the ward under the applicable advance directiv e or 92
durable power of attorney without order of the court even if the 93
surrogate or agent has been appointed as guardian of the ward 94
for other delegable rights. 95
Section 2. Paragraph (f) of subsection (3) of section 96
744.3215, Florida Statutes, is amended to read: 97
744.3215 Rights of persons determined incapacitated. — 98
(3) Rights that may be removed from a person by an order 99
determining incapacity and which may be delegated to the 100
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guardian include the right: 101
(f) To make health care decisions as defined in s. 102
765.101. If this right is removed from a person, then court 103
approval for the withdrawal or withholding of life -prolonging 104
procedures, as defined in s. 765.101, is required under s. 105
744.4431 consent to medical and mental health treatment . 106
Section 3. Paragraph (f) of subsection (1) of section 107
744.363, Florida Statutes, is amended, and paragraph (g) is 108
added to that subsection, to read: 109
744.363 Initial guardianship plan. — 110
(1) The initial guardianship plan shall include all of the 111
following: 112
(f)1. A list of any preexisting : 113
a. Orders not to resuscitate executed in accordance with 114
under s. 401.45(3) and the dates such orders were signed; or 115
b. Preexisting Advance directives, as defined in s. 116
765.101 and, the dates such directives were signed. date an 117
order or directive was signed, 118
2. For each item listed under subparagraph 1., the plan 119
must state whether the such order or directive has been revoked, 120
modified, or suspended by the court . 121
(g) , and A description of the steps taken to identify and 122
locate a the preexisting order not to resuscitate or advance 123
directive. 124
Section 4. Paragraph (d) of subsection (1) of section 125
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744.3675, Florida Statutes, is amended, and paragraph (e) is 126
added to that subsection, to read: 127
744.3675 Annual guardianship plan. —Each guardian of the 128
person must file with the court an annual guardianship plan 129
which updates information about the condition of the ward. The 130
annual plan must specify the current needs of the ward and how 131
those needs are proposed to be met in the coming year. 132
(1) Each plan for an adult ward must, if applicable, 133
include: 134
(d) 1. A list of any preexisting : 135
a. Orders not to resuscitate executed in accordance with 136
under s. 401.45(3) and the dates such orders were signed; or 137
b. Preexisting Advance directives, as defined in s. 138
765.101 and, the dates such directives were signed. date an 139
order or directive was signed, 140
2. For each item listed under subparagraph 1., the plan 141
must state whether the such order or directive has been revoked, 142
modified, or suspended by the court . 143
(e) , and A description of the steps taken to identify and 144
locate a the preexisting order not to resuscitate or advance 145
directive. 146
Section 5. Section 744.4431, Florida Statu tes, is created 147
to read: 148
744.4431 Guardianship power regarding life -prolonging 149
procedures.— 150
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(1) Except as provided in this section, decisions by a 151
professional guardian, as defined in s. 744.102, to withhold or 152
withdraw life-prolonging procedures from, or to execute an order 153
not to resuscitate for, a ward must be approved by the court. A 154
professional guardian appointed to act on behalf of a ward's 155
person must petition the court pursuant to the Florida Probate 156
Rules for authority to consent to withhold o r withdraw life-157
prolonging procedures or to execute an order not to resuscitate 158
before taking such action, except as provided in subsection (7). 159
(2) The petition by a professional guardian must contain 160
all of the following: 161
(a) A description of the pro posed action or decision for 162
which court approval is sought and documentation of the 163
authority of the professional guardian to make health care 164
decisions on behalf of the ward. 165
(b) A statement regarding any known objections to the 166
relief sought in the pe tition. 167
(c) A description of the ward's known wishes, including 168
all advance directives executed by the ward, or, if there is no 169
indication of the ward's wishes, a description of why the relief 170
sought is in the best interests of the ward. 171
(d) Any exigent circumstances that exist which necessitate 172
immediate relief. 173
(e) A description of the circumstances requiring the 174
proposed action or decision and evidence, including affidavits, 175
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medical records, or other supporting documentation, showing that 176
the proposed action or decision satisfies the criteria in s. 177
765.305, s. 765.401(3), or s. 765.404, as applicable. 178
(3) A professional guardian must show by clear and 179
convincing evidence that the proposed action or decision he or 180
she is requesting would have been the decision the ward would 181
have chosen if the ward had capacity or, if there is no 182
indication of what the ward would have chosen, that the proposed 183
action or decision is in the best interests of the ward. 184
(4) A professional guardian must serve notice of the 185
petition, and of any hearing, on the ward; the ward's attorney, 186
if any; the ward's next of kin, if known; and any other 187
interested persons as the court may direct, unless such 188
requirement is waived by the court. 189
(5) The court must hold a hearing on the petition if: 190
(a) The ward or the ward's attorney objects to the 191
petition; 192
(b) The ward's next of kin or an interested person objects 193
on any basis under s. 765.105(1); 194
(c) The professional guardian, the ward, or the ward's 195
attorney requests a hearing; or 196
(d) The court has insufficient information to determine 197
whether the criteria for granting the petition has been met. 198
(6) If a hearing is required and exigent circumstances are 199
alleged, the court must hold a preliminary hearing within 72 200
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hours after the petition is filed and do one of the following: 201
(a) Rule on the relief requested immediately after the 202
preliminary hearing; or 203
(b) Conduct an evidentiary hearing within 4 days after the 204
preliminary hearing and rule on the relief requested immediately 205
after the evidentiary hearing. 206
(7) Court approval is not required for the following 207
decisions: 208
(a) A decision to withhold or withdraw life -prolonging 209
procedures made by a professional guardian to whom authority has 210
been granted by the court under s. 744.3115 to carry out the 211
instructions in or to take actions consistent with the ward's 212
advance directive, as long as there are no known objections from 213
the ward; the ward's attorney; the ward's next of kin, if known; 214
and any other interested per sons as the court may direct based 215
on s. 765.105(1). 216
(b) A decision by a professional guardian who has been 217
delegated health care decision -making authority to execute an 218
order not to resuscitate, as described in s. 401.45(3)(a), if 219
the ward is in a hospi tal and the following conditions are met: 220
1. The ward's primary treating physician and at least one 221
other consulting physician document in the ward's medical record 222
that: 223
a. There is no reasonable medical probability for recovery 224
from or a cure of the ward's underlying medical condition; 225
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b. The ward is in an end -stage condition, a terminal 226
condition, or a persistent vegetative state as those terms are 227
defined in s. 765.101, and that the ward's death is imminent; 228
and 229
c. Resuscitation will cause the w ard physical harm or 230
additional pain. 231
2. The professional guardian has notified the ward's next 232
of kin, if known, and any interested persons as the court may 233
direct and the decision is not contrary to the ward's expressed 234
wishes and there are no known ob jections from the ward; the 235
ward's attorney; the ward's next of kin, if known; or any other 236
interested persons as the court may direct on the basis of s. 237
765.105(1). 238
(8) Within 2 business days after executing an order not to 239
resuscitate under paragraph ( 7)(b), a professional guardian must 240
notify the court in writing of all of the following: 241
(a) The date the order not to resuscitate was executed. 242
(b) The location of the ward when the order not to 243
resuscitate was executed. 244
(c) The names of the physici ans who documented the ward's 245
condition in the ward's medical record. 246
Section 6. Section 744.441, Florida Statutes, is amended 247
to read: 248
744.441 Powers of guardian upon court approval. —After 249
obtaining approval of the court pursuant to a petition for 250
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authorization to act,: 251
(1) a plenary guardian of the property, or a limited 252
guardian of the property within the powers granted by the order 253
appointing the guardian or an approved annual or amended 254
guardianship report, may do all of the following : 255
(1)(a) Perform, compromise, or refuse performance of a 256
ward's contracts that continue as obligations of the estate, as 257
he or she may determine under the circumstances. 258
(2)(b) Execute, exercise, or release any powers as 259
trustee, personal representative, custodi an for minors, 260
conservator, or donee of any power of appointment or other power 261
that the ward might have lawfully exercised, consummated, or 262
executed if not incapacitated, if the best interest of the ward 263
requires such execution, exercise, or release. 264
(3)(c) Make ordinary or extraordinary repairs or 265
alterations in buildings or other structures; demolish any 266
improvements; or raze existing, or erect new, party walls or 267
buildings. 268
(4)(d) Subdivide, develop, or dedicate land to public use; 269
make or obtain the vacation of plats and adjust boundaries; 270
adjust differences in valuation on exchange or partition by 271
giving or receiving consideration; or dedicate easements to 272
public use without consideration. 273
(5)(e) Enter into a lease as lessor or lessee for any 274
purpose, with or without option to purchase or renew, for a term 275
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within, or extending beyond, the period of guardianship. 276
(6)(f) Enter into a lease or arrangement for exploration 277
and removal of minerals or other natural resources or enter into 278
a pooling or unitization agreement. 279
(7)(g) Abandon property when, in the opinion of the 280
guardian, it is valueless or is so encumbered or in such 281
condition that it is of no benefit to the estate. 282
(8)(h) Pay calls, assessments, and other sums chargeable 283
or accruing against, or on account of, securities. 284
(9)(i) Borrow money, with or without security, to be 285
repaid from the property or otherwise and advance money for the 286
protection of the estate. 287
(10)(j) Effect a fair and reasonable compromise with any 288
debtor or obligor or extend, renew, or in any manner modify the 289
terms of any obligation owing to the estate. 290
(11)(k) Prosecute or defend claims or proceedings in any 291
jurisdiction for the protection of th e estate and of the 292
guardian in the performance of his or her duties. Before 293
authorizing a guardian to bring an action described in s. 294
736.0207, the court shall first find that the action appears to 295
be in the ward's best interests during the ward's probabl e 296
lifetime. There shall be a rebuttable presumption that an action 297
challenging the ward's revocation of all or part of a trust is 298
not in the ward's best interests if the revocation relates 299
solely to a devise. This subsection paragraph does not preclude 300
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a challenge after the ward's death. If the court denies a 301
request that a guardian be authorized to bring an action 302
described in s. 736.0207, the court must shall review the 303
continued need for a guardian and the extent of the need for 304
delegation of the ward's rights. 305
(12)(l) Sell, mortgage, or lease any real or personal 306
property of the estate, including homestead property, or any 307
interest therein for cash or credit, or for part cash and part 308
credit, and with or without security for unpaid balances. 309
(13)(m) Continue any unincorporated business or venture in 310
which the ward was engaged. 311
(14)(n) Purchase the entire fee simple title to real 312
estate in this state in which the guardian has no interest, but 313
the purchase may be made only for a home for the ward, to 314
protect the home of the ward or the ward's interest, or as a 315
home for the ward's dependent family. If the ward is a married 316
person and the home of the ward or of the dependent family of 317
the ward is owned by the ward and spouse as an estate by the 318
entirety and the home is sold pursuant to the authority of 319
subsection (12) paragraph (l), the court may authorize the 320
investment of any part or all of the proceeds from the sale 321
toward the purchase of a fee simple title to real estate in this 322
state for a home for the ward or the dependent family of the 323
ward as an estate by the entirety owned by the ward and spouse. 324
If the guardian is authorized to acquire title to real estate 325
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for the ward or dependent family of the ward as an estate by the 326
entirety in accordance with the preceding provisions, the 327
conveyance must shall be in the name of the war d and spouse and 328
shall be effective to create an estate by the entirety in the 329
ward and spouse. 330
(15)(o) Exercise any option contained in any policy of 331
insurance payable to, or inuring to the benefit of, the ward. 332
(16)(p) Pay reasonable funeral, interme nt, and grave 333
marker expenses for the ward from the ward's estate. 334
(17)(q) Make gifts of the ward's property to members of 335
the ward's family in estate and income tax planning procedures. 336
(18)(r) When the ward's will evinces an objective to 337
obtain a United States estate tax charitable deduction by use of 338
a split interest trust (as that term is defined in s. 736.1201), 339
but the maximum charitable deduction otherwise allowable will 340
not be achieved in whole or in part, execute a codicil on the 341
ward's behalf amending said will to obtain the maximum 342
charitable deduction allowable without diminishing the aggregate 343
value of the benefits of any beneficiary under such will. 344
(19)(s) Create or amend revocable trusts or create 345
irrevocable trusts of property of the w ard's estate which may 346
extend beyond the disability or life of the ward in connection 347
with estate, gift, income, or other tax planning or in 348
connection with estate planning. The court shall retain 349
oversight of the assets transferred to a trust, unless othe rwise 350
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ordered by the court. 351
(20)(t) Renounce or disclaim any interest by testate or 352
intestate succession or by inter vivos transfer. 353
(21)(u) Enter into contracts that are appropriate for, and 354
in the best interest of, the ward. 355
(22)(v) As to a minor ward, pay expenses of the ward's 356
support, health, maintenance, and education, if the ward's 357
parents, or either of them, are alive. 358
(2) A plenary guardian or a limited guardian of a ward may 359
sign an order not to resuscitate as provided in s. 401.45(3). 360
When a plenary guardian or a limited guardian of a ward seeks to 361
obtain approval of the court to sign an order not to 362
resuscitate, if required by exigent circumstances, the court 363
must hold a preliminary hearing within 72 hours after the 364
petition is filed, and : 365
(a) Rule on the relief requested immediately after the 366
preliminary hearing; or 367
(b) Conduct an evidentiary hearing not later than 4 days 368
after the preliminary hearing and rule on the relief requested 369
immediately after the evidentiary hearing. 370
Section 7. This act shall take effect July 1, 2023. 371