This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1119.CFS
DATE: 3/13/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 1119 Withholding or Withdrawal of Life-prolonging Procedures
SPONSOR(S): Berfield
TIED BILLS: IDEN./SIM. BILLS: SB 1098
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Children, Families & Seniors Subcommittee Osborne Brazzell
2) Civil Justice Subcommittee
3) Health & Human Services Committee
SUMMARY ANALYSIS
When an individual is unable to make legal decisions regarding his or her person or property, a court may
appoint a guardian to act on his or her behalf. A person served by a guardian is a ward, and a guardian may
oversee a ward’s person or property or both. When a person becomes a ward, that person loses those civil
and legal rights transferred to the guardian. When a guardian is given full (plenary) guardianship, the guardian
has authority to make all decisions for a ward, such as deciding where the ward lives and whether to sell the
ward’s property. In Florida, circuit court judges appoint guardians and oversee guardianships, governed by ch.
744, F.S.
Competent adults may formulate, in advance, preferences regarding a course of treatment in the event that
injury or illness causes severe impairment or loss of decision-making capacity, known as an advance directive.
An advance directive is a witnessed, oral statement or written instruction that expresses a person’s desires
about any aspect of his or her future health care, including the designation of a health care surrogate, a living
will, or an anatomical gift. Another kind of advance directive is a “do not resuscitate order,” (DNRO) which is a
physician’s order indicating that if a person experiences cardiac or pulmonary arrest, then medical
professionals are not to provide resuscitative treatments. These orders are most often used by those suffering
from a terminal condition, end-stage condition, or in a persistent vegetative state.
HB 1119 requires specific information about preexisting advance directives and DNROs to be included in the
initial and annual guardianship plans, including whether those directives and orders have been modified,
transferred, or revoked by the court.
The bill clarifies that health care surrogates and agents under a durable power of attorney who have retained
their authority to make health care decisions under the guardianship plan may exercise their delegated
authority without additional approval by the court. Additionally, the bill asserts that any authority to make health
care decisions that has been transferred by the court to the guardian may be exercised by the guardian,
consistent with the advance directive or power of attorney, without additional approval by the court, unless
there is a conflict or objection to the guardian’s proposed action under that authority.
The bill also creates section 744.4431, F.S., relating to guardianship power regarding life-prolonging
procedures. This section would authorize a guardian to petition the court for the authority to withhold or
withdraw life-prolonging procedures under certain circumstances, outlines the information required in the
petition, the circumstances in which a court hearing is required, and the timeframe in which a hearing must be
held and a ruling reached. This section also creates a process under which a guardian may withhold or
withdraw life-prolonging procedures without prior court approval should exigent circumstances indicate that a
ward’s death is likely to occur within the next 72 hours and there are no known objections.
The bill provides an effective date of July 1, 2023.
STORAGE NAME: h1119.CFS PAGE: 2
DATE: 3/13/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Guardianship
When an individual is unable to make legal decisions regarding his or her person or property, a
guardian may be appointed to act on his or her behalf. A guardian is someone who is appointed by the
court to act on behalf of a ward (an individual who has been adjudicated incapacitated) regarding his or
her person or property or both.
1
Guardianship is considered the most restrictive form of protection and
supervision of an individual as it inherently entails the removal of certain civil and legal rights.
2
In
recognition of the highly restrictive nature of guardianship, the Legislature has specified its intent that
the courts utilize the least restrictive form of guardianship appropriate for the incapacitated persons,
and that alternatives to guardianship and less restrictive means of assistance be explored before
appointing a guardian.
3
The process to determine an individual’s incapacity and the subsequent appointment of a guardian
begins with a verified petition detailing the factual information supporting the reasons the petitioner
believes the individual to be incapacitated, including the rights the alleged incapacitated person is
incapable of exercising.
4
The alleged incapacitated person is then appointed an attorney and partakes
in an examination conducted by a committee of three medical experts appointed by the court.
5
The
committee members each provide a report to the court including a determination of whether the
individual lacks the capacity to exercise rights, the extent of that incapacity, and the factual basis for the
determination that the person lacks that capacity, as well as an evaluation of the person’s ability to
retain specific rights.
6
The final determination of incapacity is made by the court.
Once a person has been adjudicated incapacitated (termed a “ward”), the court appoints a guardian
7
,
and the letters of guardianship defining the terms of the guardianship are issued.
8
The order appointing
a guardian must be consistent with the ward’s welfare and safety, must be the least restrictive
appropriate alternative, and must reserve to the ward the right to make decisions in all matters
commensurate with his or her ability to do so.
9
Relationship Between Guardian and Ward
The relationship between a guardian and his or her ward is a fiduciary one.
10
A fiduciary relationship
exists between two persons when one of them is under a duty to act for or to give advice for the benefit
of another upon matters within the scope of that relationship.
11
The guardian, as fiduciary, must:
12
Act within the scope of the authority granted by the court and as provided by law;
1
S. 744.102(9), F.S.
2
Guardianship Improvement Task Force. Final Report: January 2022. Available at
https://www.guardianshipimprovementtaskforce.com/report/ (last visited March 7, 2023).
3
S. 744.1012(2), F.S.
4
S. 744.3201, F.S.
5
S. 744.331, F.S. One member of the committee must be a psychiatrist or other physician. The remaining committee members must be
either a psychologist, gerontologist, psychiatrist, physician, advanced practice registered nurse, registered nurse, licensed social
worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or any other person who by
knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion.
6
S. 744.331(3)(g), F.S.
7
S. 744.2005, F.S
8
S. 744.345, F.S.
9
S. 744.2005(3), F.S.
10
Lawrence v. Norris, 563 So. 2d 195, 197 (Fla. 1st DCA 1990); s. 744.361(1), F.S.
11
Doe v. Evans, 814 So. 2d 370, 374 (Fla. 2002).
12
s. 744.361, F.S. STORAGE NAME: h1119.CFS PAGE: 3
DATE: 3/13/2023
Act in good faith;
Not act in a manner contrary to the ward's best interests under the circumstances; and
Use any special skills or expertise the guardian possesses when acting on behalf of the ward.
Additionally, s. 744.446, F.S., states that there is a fiduciary relationship between the guardian and the
ward and that such relationship may not be used for the private gain of the guardian other than the
remuneration for fees and expenses provided by law. As such, the guardian must act in the best
interest of the ward and carry out his or her responsibilities in an informed and considered manner.
Should a guardian breach his or her fiduciary duty to the ward, the court is obligated to intervene to
protect the ward and the ward’s interests.
13
A guardian can either be “limited” or “plenary” in nature.
14
A limited guardian is appointed by the court
to exercise the legal rights and powers specifically designated by the court after the court has found
that the ward lacks the capacity to do some, but not all, of the tasks necessary to care for his or her
person or property, or after the person has voluntarily petitioned for appointment of a limited guardian.
15
A person for whom a limited guardian has been appointed retains all legal rights except those that have
been specifically granted to the guardian by the court.
16
A plenary guardian is appointed by the court to
exercise all delegable legal rights and powers of the ward after the court has found that the ward lacks
the capacity to perform all of the tasks necessary to care for his or her person or property.
17
Appointment of a Guardian
In Florida, a guardian is appointed to a ward by the circuit court. Any of the following persons or entities
may be appointed guardian of a ward:
18
Any resident of Florida who is 18 years of age or older and has full legal rights and capacity;
A nonresident if he or she is related to the ward by blood, marriage, or adoption;
A trust company, a state banking corporation, or state savings association authorized and
qualified to exercise fiduciary powers in this state, or a national banking association or federal
savings and loan association authorized and qualified to exercise fiduciary powers in Florida;
A nonprofit corporation organized for religious or charitable purposes and existing under the
laws of Florida;
A judge who is related to the ward by blood, marriage, or adoption, or has a close relationship
with the ward or the ward’s family, and serves without compensation;
A provider of health care services to the ward, whether direct or indirect, when the court
specifically finds that there is no conflict of interest with the ward’s best interests; or
A for-profit corporation that meets certain qualifications, including being wholly owned by the
person who is the circuit's public guardian in the circuit where the corporate guardian is
appointed.
Appointment of a Professional Guardian
A professional guardian is a guardian who has, at any time, rendered services to three or more wards
as their guardian; however, a person serving as a guardian for two or more relatives is not considered a
professional guardian. A public guardian may be appointed if there is no family member or friend, other
person, bank, or corporation willing and qualified to serve as a guardian.
19
Public guardians are
intended to primarily serve individuals of limited financial means.
20
A public guardian is considered a
professional guardian for purposes of regulation, education, and registration.
21
Professional guardians
13
S. 744.446(5), F.S.
14
S. 744.102(9)(a), F.S.
15
Id.
16
S. 744.2005(7), F.S.
17
S. 744.102(9)(b), F.S.
18
S. 744.309, F.S.
19
S. 744.2007(1), F.S.
20
S. 744.2007(3), F.S.
21
S. 744.102(17), F.S STORAGE NAME: h1119.CFS PAGE: 4
DATE: 3/13/2023
are overseen by the Office of Public and Professional Guardians within the Department of Elderly
Affairs.
22
In each case when a court appoints a professional guardian and does not use a rotation system for
such appointment, the court must make specific findings of fact stating why the person was selected as
guardian in the particular matter involved.
23
The court must consider, and the findings must reference,
the following factors:
24
Whether the guardian is related by blood or marriage to the ward;
Whether the guardian has educational, professional, or business experience relevant to the
nature of the services sought to be provided;
Whether the guardian has the capacity to manage the financial resources involved;
Whether the guardian has the ability to meet the requirements of the law and the unique needs
of the individual case;
The wishes expressed by an incapacitated person as to who shall be appointed guardian;
The preference of a minor who is age 14 or over as to who should be appointed guardian;
Any person designated as guardian in any will in which the ward is a beneficiary; and
The wishes of the ward’s next of kin, when the ward cannot express a preference.
Additionally, current law prohibits the court from giving preference to the appointment of a person
based solely on the fact that such person was appointed by the court to serve as an emergency
temporary guardian.
25
When a professional guardian is appointed as an emergency temporary
guardian, that professional guardian may not be appointed as the permanent guardian of a ward unless
one of the next of kin of the alleged incapacitated person or the ward requests that the professional
guardian be appointed as permanent guardian.
26
However, the court may waive this limitation if the
special requirements of the guardianship demand that the court appoint a guardian because he or she
has special talent or specific prior experience.
27
The court may not appoint a professional guardian who is not registered by the Office of Public and
Professional Guardians.
28
The following are disqualified from being appointed as a guardian:
29
A person convicted of a felony;
A person who is incapable of discharging the duties of a guardian due to incapacity or illness, or
who is otherwise unsuitable to perform the duties of a guardian;
A person who has been judicially determined to have committed abuse, abandonment, or
neglect against a child;
A person who has been found guilty of, regardless of adjudication, or entered a plea of nolo
contendere or guilty to, any offense prohibited under s. 435.04, F.S.;
A person who provides substantial services to the proposed ward in a professional or business
capacity, or a creditor of the proposed ward, if such guardian retains that previous professional
or business relationship (with exceptions); or
A person who is in the employ of any person, agency, government, or corporation that provides
service to the proposed ward in a professional or business capacity, unless that person is the
spouse, adult child, parent, or sibling of the proposed ward or the court determines that the
potential conflict of interest is insubstantial and that the appointment would clearly be in the
proposed ward’s best interest.
A court may not appoint a guardian in any other circumstance in which a conflict of interest may
22
S. 744.2001, F.S.
23
S. 744.312(4)(a), F.S.
24
See s. 744.312(2)-(3), F.S.
25
S. 744.312(5), F.S.
26
S. 744.312(4)(b), F.S.
27
Id.
28
S. 744.2003(9), F.S.
29
S. 744.309(3), F.S. STORAGE NAME: h1119.CFS PAGE: 5
DATE: 3/13/2023
occur.
30
Powers and Duties of the Guardian
The guardian of an incapacitated person may exercise only those rights removed from the ward and
delegated to the guardian.
31
The guardian has a great deal of power when it comes to managing the
ward’s estate. Some of these powers require court approval before they may be exercised.
Examples of Powers That May Be Exercised By a Guardian
With Court Approval
32
Without Court Approval
33
Enter into contracts that are appropriate for, and in
the best interest of, the ward.
Perform, compromise, or refuse performance of a
ward’s existing contracts.
Alter the ward’s property ownership interests,
including selling, mortgaging, or leasing any real
property (including the homestead), personal
property, or any interest therein.
Borrow money to be repaid from the property of the
ward or the ward’s estate.
Renegotiate, extend, renew, or modify the terms of
any obligation owing to the ward.
Prosecute or defend claims or proceedings in any
jurisdiction for the protection of the estate.
Exercise an option contained in an insurance policy
payable to the ward.
Make gifts of the ward’s property to members of the
ward’s family in estate and income tax planning.
Pay reasonable funeral, interment, and grave marker
expenses for the ward.
Retain assets owned by the ward.
Receive assets from fiduciaries or other sources.
Insure the assets of the estate against damage, loss, and
liability.
Pay taxes and assessments on the ward’s property.
Pay reasonable living expenses for the ward, taking into
consideration the ward’s current finances.
Pay incidental expenses in the administration of the estate.
Prudently invest liquid assets belonging to the ward.
Sell or exercise stock subscription or conversion rights.
Consent to the reorganization, consolidation, merger,
dissolution, or liquidation of a corporation or other business
enterprise of the ward.
Employ, pay, or reimburse persons, including attorneys,
auditors, investment advisers, care managers, or agents,
even if they are associated with the guardian, to advise or
assist the guardian in the performance of his or her duties.
State law also imposes specific duties upon guardians consistent with the basic duties of a fiduciary,
including protecting and preserving the property of the ward as well as his or her overall physical and
social health.
34
For example, guardians must file initial
35
and annual guardianship reports,
36
and an
annual accounting of the ward’s property,
37
with the court.
Initial and Annual Guardianship Plans
Guardians must file an initial guardianship report with the court. It must be filed within 60 days after
appointment and, for a guardian of the person, include an initial guardianship plan.
38
Initial guardian
plans are required by statute to contain certain specified information regarding the ward, including
information regarding the provision of medical, mental health, or personal care services for the welfare
of the ward; the kind of residential setting best suited for the needs of the ward; the provision of social
and personal services for the welfare of the ward; and a list of any preexisting orders not to resuscitate
or advance directives.
39
Guardians must also file an annual guardianship report with the court. The annual guardianship report
must be filed within 90 days following the last day of the anniversary month of appointment. The annual
30
Id.
31
S. 744.361(1), F.S.
32
S. 744.441, F.S.
33
Id.
34
S. 744.362, F.S.
35
S. 744.367, F.S.
36
S. 744.3678, F.S.
37
See s. 744.363(1)(a)-(f), F.S.
38
S. 744.362, F.S.
39
S. 744.363, F.S. STORAGE NAME: h1119.CFS PAGE: 6
DATE: 3/13/2023
plan must cover the coming fiscal year, ending on the last day in the anniversary month.
40
Similar to the
initial guardianship report, the annual guardianship report for a guardian of the person must include an
annual guardianship plan
41
updating information regarding the medical and mental health conditions,
treatment, and rehabilitation needs of the ward; the residence of the ward; the social condition of the
ward; and a list of any preexisting orders not to resuscitate or advance directives.
42
End of Life Decision-making
Competent adults may formulate, in advance, preferences regarding a course of treatment in the event
that injury or illness causes severe impairment or loss of decision-making capacity, known as an
advance directive. An advance directive is a witnessed, oral statement or written instruction that
expresses a person’s desires about any aspect of his or her future health care, including the
designation of a health care surrogate, a living will, or an anatomical gift.
43
The designation of a health
care surrogate, a living will, or an anatomical gift each serve different purposes and have their own
unique requirements and specifications under the law.
44
Living Wills
A living will is an advanced directive that indicates a person’s preferences for the provision, withholding,
or withdrawal of life-prolonging procedures in the event that such person has a terminal condition, end-
stage condition, or is in a persistent vegetative state.
45
Life-prolonging procedures are defined as any
medical procedure, treatment, or intervention, including artificially provided sustenance and hydration,
which sustains, restores, or supplants a spontaneous vital function. The term does not include the
administration of medication or performance of medical procedure, when such medication or procedure
is deemed necessary to provide comfort care or to alleviate pain.
46
The terms of a living will are entered
into by a competent adult and indicate their personal treatment preferences and goals should they be
unable to make medical decisions for themselves.
Health Care Surrogates and Proxies
A health care surrogate is a competent adult who has been expressly designated by a principal via an
advance directive to make health care decisions
47
on the behalf of the principal upon the principal’s
incapacity or at another point in time as determined by the principal.
48
If a person fails to designate a
surrogate or a designated surrogate is unwilling or unable to perform his or her duties, a health care
facility may seek the appointment of a proxy to make health care decisions on behalf of such person
should they become incapacitated.
49
Florida law directs health care facilities to appoint proxies according to a prioritized list based on the
person’s relation to the patient. The following persons may serve as proxy to an incapacitated patient,
in order of priority: the patient’s court-appointed guardian with health care decision-making authority,
the patient’s spouse, adult child, parent, adult sibling, an adult relative who has shown special care and
concern for the patient, a close friend, or a clinical social worker under specific circumstances.
50
A surrogate appointed by the principal or by proxy, may, subject to any limitations and instructions
40
S.744.367(1), F.S.
41
S.744.367(1) and (3)(a), F.S.
42
S. 744.3675, F.S.
43
S. 765.101, F.S.
44
Id.
45
S. 765.302(1), F.S.
46
S. 765.101(12), F.S.
47
S. 765.101(6), F.S.; “health care decision” means: informed consent, refusal of consent, or withdrawal of consent to any and all
health care, including life-prolonging procedures and mental health treatment, unless otherwise stated in the advance directives; the
decision to apply for private, public, government, or veterans’ benefits to defray the cost of health care; the right of access to all records
of the principal reasonably necessary for a health care surrogate to make decisions involving health care and to apply for benefits; and
the decision to make an anatomical gift pursuant to part V of ch. 765, F.S.
48
S. 765.202, F.S.
49
S. 765.401(1), F.S.
50
S. 765.401(1), F.S. STORAGE NAME: h1119.CFS PAGE: 7
DATE: 3/13/2023
provided by the principal, take the following actions:
51
Make all health care decisions for the principal during the principal’s incapacity;
Consult expeditiously with appropriate health care providers to provide informed consent,
including written consent where required, provided that such consent reflects the principal’s
wishes or the principal’s best interests;
Have access to the appropriate medical records of the principal;
Apply for public benefits for the principal and have access to information regarding the
principal’s income, assets, and financial records to the extent required to make such application;
Authorize the release of information and medical records to appropriate persons to ensure
continuity of the principal’s health care; and
Authorize the admission, discharge, or transfer of the principal to or from a health care facility.
Physicians should recognize the patient’s proxy or surrogate as an extension of the patient, entitled to
the same respect as the competent patient.
52
Power of Attorney
A power of attorney is a document granting authority to an agent to act in the place of the principal.
53
A
“durable” power of attorney is a kind of power of attorney that cannot be terminated by the principal’s
incapacity.
54
Among many other things, a durable power of attorney may be used to allow another
person to make health care decisions on behalf of an incapacitated principal.
55
Do Not Resuscitate Orders
One type of advance directive, a “do not resuscitate order” (DNRO), results in cardiopulmonary
resuscitation (CPR) and all other resuscitative treatment being withheld in the event of cardiac or
pulmonary arrest.
56
DNROs differ from living wills in that while a living will instructs on the care and
treatment an individual desires under certain circumstances, and thus may result in the withholding of
life-prolonging care, a DNRO is a physician’s order to withhold resuscitation if a patient experiences
cardiac or pulmonary arrest.
57
DNROs are typically used by individuals suffering from a terminal
condition, end-stage condition, or in a persistent vegetative state, but in some circumstances may also
be used by healthy individuals.
58
The DNRO indicates that resuscitative measures are not to be
initiated; however, comfort care measures, such as oxygen administration, hemorrhage control and
pain management, may still be used.
59
DNROs are honored in most health care settings including hospices,
60
adult family care homes,
61
assisted living facilities,
62
emergency departments,
63
nursing homes,
64
home health agencies,
65
and
hospitals.
66
DNROs are also honored by emergency medical responders outside of a health care
setting provided that the form is prominently displayed or the patient identification device, a miniature
51
S. 765.205, F.S.
52
American Medical Association. Code of Ethics. Opinion 2.1.2: Decisions for Adult Patients Who Lack Capacity. Available at
https://code-medical-ethics.ama-assn.org/ethics-opinions/decisions-adult-patients-who-lack-capacity (last visited March 10, 2023).
53
S. 709.2102(9), F.S.
54
S. 709.2102(4), F.S.
55
The Florida Bar. Consumer Pamphlet: Florida Power of Attorney, About the Power of Attorney. Available at
https://www.floridabar.org/public/consumer/pamphlet13/#about (last visited March 10, 2023).
56
Florida Department of Health. Do Not Resuscitate Frequently Asked Questions. Available at
https://www.floridahealth.gov/about/patient-rights-and-safety/do-not-resuscitate/faq-page.html#difference (last visited March 9, 2023).
57
Id.
58
Id.
59
Id.
60
S. 400.6095, F.S.
61
S. 429.73, F.S.
62
S. 429.255, F.S.
63
S. 395.1041, F.S.
64
S. 400.142, F.S.
65
S. 400.487, F.S.
66
S. 395.1041, F.S. STORAGE NAME: h1119.CFS PAGE: 8
DATE: 3/13/2023
version of the form, accompanies the patient.
67
In order for the DNRO to be valid, it must be on the form adopted by the Department of Health, printed
on yellow paper, and signed by the patient’s physician or physician assistant and the patient.
68
If the
patient is incapacitated, then the form must be signed by the patient’s health care surrogate or proxy,
court-appointed guardian, or attorney in fact under a durable power of attorney.
69
A DNRO does not
expire;
70
however, it may be revoked by the patient, or the patient’s representative who signed the
original form, at any time, either in writing, by physical destruction of the form, or by orally expressing
contrary intent.
71
End of Life Decision-making by Guardians
In 2020, the Legislature began requiring guardians to obtain court approval prior to signing a DNRO for
a ward.
72
This change followed reports of a professional guardian signing an order not to resuscitate
against her ward’s wishes which ultimately led to the death of the ward. The event led to a series of
other changes to the state’s guardianship statute
73
regarding the appointment of guardians, conflicts of
interest, and the powers and duties of guardians.
74
Under current law, a guardian must petition the court and obtain court approval prior to signing a
DNRO. If a ward is facing exigent circumstances, the court must hold a preliminary hearing within 72
hours after the filing of the petition and either make a ruling immediately after the preliminary hearing,
or conduct an evidentiary hearing within four days after the preliminary hearing and make a ruling
immediately after the evidentiary hearing.
75
The public guardians have expressed concerns with the impact of these provisions which have resulted
in physicians’ refusal to provide comfort care, and resuscitations that led to injuries and suffering to
wards. For example, public guardians report delays in filing petitions due to the need to gather required
materials to submit the petition; physician refusal to sign required forms or unavailability for hearings;
and delays in accessing the courts where weekend process is unavailable.
76
Effect of Proposed Changes
Rights of Persons Determined Incapacitated
The bill amends the list of rights that may be removed from a person by the courts in an order
determining incapacity and delegated to a guardian to include the right to consent to the withholding or
withdrawal of life-prolonging procedures as defined in state law. The bill specifies that this power is
subject to court approval if there is a conflict over or objection to the proposed exercise of that
authority.
Initial and Annual Guardianship Plans
The bill expands upon the required contents of initial and annual guardianship plans regarding
preexisting orders not to resuscitate and advance directives. Specifically, the bill requires that in
addition to listing any such orders and directives, the plans also include the date that such orders and
67
Rule 64J-2.018, F.A.C.
68
S. 401.45(3), F.S.
69
Id.
70
Supra, note 56.
71
Supra, note 67.
72
S. 744.441(2), F.S.
73
See also Ch. 744, F.S.
74
Greg Angel, Spectrum News 13, DeSantis Signs Florida Guardianship Bill Into Law, Expanding Oversight of Program (June 19,
2020). Available at https://www.mynews13.com/fl/orlando/news/2020/06/19/desantis-signs-florida-guardianship-bill-into-law (last visited
March 11, 2023).
75
S. 744.441(2), F.S.
76
Guardianship Improvement Task Force, Appendix M: Public Guardian DNR Legislation Unintended Consequences Examples
(January 2022). Available at https://guardianshiptf.wpengine.com/wp-content/uploads/2022/01/GITFReportAppendix-Jan2022-
Reduced.pdf (last visited March 11, 2023). STORAGE NAME: h1119.CFS PAGE: 9
DATE: 3/13/2023
directives were signed and whether they were revoked, modified, or suspended by the court. The plans
must also state the date of such action by the court.
The bill specifies that a surrogate designated by the ward in an advance directive, or an agent
designated by the ward in a durable power of attorney, who retains authority to make health care
decisions under the guardianship plan, may exercise that authority without additional approval by the
court. Any authority of a surrogate or agent that has been transferred to a guardian may be exercised
by the guardian, consistent with the advance directive or durable power of attorney, without additional
approval by the court. And any power transferred to a guardian to execute an order not to resuscitate or
to consent to withhold or withdraw life-prolonging procedures is subject to court approval pursuant to
state law if there is a conflict over or objection to a proposed exercise of that power.
Guardianship Power Regarding Life-prolonging Procedures
The bill creates s. 744.4431, F.S. which details the parameters of a guardian’s power regarding life-
prolonging procedures. This section authorizes the guardian of a ward’s person to petition a court
pursuant to the Florida Probate Rules for authority to consent to withhold or withdraw life-prolonging
procedures if:
The right to consent to withhold or withdraw life-prolonging procedures has not been delegated
to the guardian in the order appointing the guardian;
Sufficient authority under the ward’s preexisting advance directive or durable power of attorney
has not been transferred to the guardian; or
The proposed withholding or withdrawal of life-prolonging procedures is in conflict with the
wishes, as presently or previously expressed, of the ward, the ward’s next of kin, or any
interested person.
Additionally, the section outlines the required contents of the petition including a description of the
proposed action and documentation the guardian’s existing authority to make health care decisions for
the ward, any known objections to the proposed action or conflict with the wishes of the ward, the
ward’s next of kin, or any interested person, and the circumstances or evidence showing that the
proposed action satisfies the applicable criteria in the statute providing for health care decision
proxies
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or regarding individuals in a persistent vegetative state.
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The guardian is required to serve
notice of the petition, and of any hearing, upon the ward’s next of kin and interested persons, unless
waived by the court.
The bill does not require that a hearing is held on the petition unless the court has been notified of an
objection or conflict, or the court has insufficient information to make a determination. If a hearing is
required and a ward is facing exigent circumstances, the court must hold a preliminary hearing within
72 hours of the filing of the petition and either make a ruling immediately following the hearing, or
conduct an evidentiary hearing within four days of the preliminary hearing, at which time the court must
immediately make a ruling.
The bill outlines specific circumstances under which the process of obtaining court approval may be
bypassed if the authority to withhold or withdraw life-prolonging procedures has not been given to the
guardian or another person. Under the bill, a guardian may consent to the withholding or withdrawal of
life-prolonging procedures without prior court approval if all of the following apply:
The ward is in a hospital and at least two of the ward’s treating physicians state in writing that
there is a substantial likelihood that the ward’s death will occur within the next 72 hours;
There is no known objection to the granting of a petition to withhold or withdraw life-prolonging
procedures; and
The hospital ethics committee has met and agrees with the guardian’s proposal to withhold or
withdraw life prolonging procedures. If the hospital does not have an ethics committee, it may
arrange for this requirement to be satisfied by an ethics committee of another facility or a
community-based ethics committee approved by the Florida Bioethics Network.
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S. 765.401, F.S.
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S. 765.404, F.S. STORAGE NAME: h1119.CFS PAGE: 10
DATE: 3/13/2023
Guardian Powers Upon Court Approval
The bill deletes existing statutory language requiring a guardian to obtain court approval prior to signing
a DNRO
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which would be redundant upon the implementation of s. 744.4431, F.S.
Effective Date
The bill provides an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1: Amends s. 744.3215, F.S., relating to rights of persons determined incapacitated.
Section 2: Amends s. 744.363, F.S., relating to initial guardianship plan.
Section 3: Amends s. 744.3675, F.S., relating to annual guardianship plan.
Section 4: Creates s. 744.4431, F.S., relating to guardianship power regarding life-prolonging
procedures.
Section 5: Amends s. 744.441, F.S., relating to powers of guardian upon court approval.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
The bill would have an indeterminate, though possibly negative, fiscal impact on the judiciary.
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B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
None.
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S. 744.441(2), F.S.
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Id. STORAGE NAME: h1119.CFS PAGE: 11
DATE: 3/13/2023
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The Florida Probate Rules may need to be reviewed to ensure that they accommodate the new
statutory procedures.
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Legislative rule-making authority is not required for the judiciary to amend the
Florida Probate Rules.
C. DRAFTING ISSUES OR OTHER COMMENTS:
The bill contains a technical error in sections 2 and 3, wherein the bill references portions of s. 744.441,
F.S., which are deleted in section 5 of the bill.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
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Id.