FL
Florida House Bill H1119

Florida 2023 Regular Session

Florida House Bill H1119 Compare Versions

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1010 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
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14+A bill to be entitled 1
1515 An act relating to withholding or withdrawal of life -2
1616 prolonging procedures; amending s. 744.3115, F.S.; 3
1717 revising when a court may modify or revoke certain 4
1818 authority of a surrogate; requiring a hearing before 5
1919 the court can modify or revoke authority of a 6
2020 surrogate; requiring a guardian to file an advance 7
2121 directive for health care with the court within a 8
2222 specified timeframe under certain circumstances; 9
2323 requiring the court to make certain findings; 10
2424 authorizing a surrogate or agent to make health care 11
2525 decisions without order of the court under certain 12
2626 circumstances; amending s. 744.3215, F.S.; revising 13
2727 the rights that may be removed from a person by an 14
2828 order determining incapacity; requiring court approval 15
2929 to withhold or withdraw life -prolonging procedures of 16
3030 incapacitated persons in certain circumstances; 17
3131 amending ss. 744.363 and 744.3675, F.S.; making 18
3232 technical changes; requiring initial and annual 19
3333 guardianship plans, respectively, to state whether any 20
3434 power under the ward's preexisting order not to 21
3535 resuscitate or advance directive is revoked, modified, 22
3636 or suspended; requiring such plans to state the dates 23
3737 of such action; creating s. 744.4431, F.S.; requiring 24
3838 court approval for decisions to withhold or withdraw 25
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4747 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
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5151 life-prolonging procedures or to execute an order n ot 26
5252 to resuscitate; specifying requirements for a petition 27
5353 for court approval to consent to withhold or withdraw 28
5454 life-prolonging procedures or to execute an order not 29
5555 to resuscitate; requiring the professional guardian to 30
5656 prove certain facts by clear and co nvincing evidence; 31
5757 requiring the professional guardian to serve certain 32
5858 notices; requiring the court to hold a hearing if 33
5959 certain circumstances exist; specifying procedures 34
6060 that must be followed by the court in acting on the 35
6161 petition; providing exceptions to the requirement for 36
6262 court approval; requiring the professional guardian to 37
6363 provide certain written notice to the court within a 38
6464 specified timeframe; amending s. 744.441, F.S.; making 39
6565 technical changes; deleting provisions regarding the 40
6666 authority of certain guardians to sign an order not to 41
6767 resuscitate; providing an effective date. 42
6868 43
6969 Be It Enacted by the Legislature of the State of Florida: 44
7070 45
7171 Section 1. Section 744.3115, Florida Statutes, is amended 46
7272 to read: 47
7373 744.3115 Advance directives for health care.—In each 48
7474 proceeding in which a guardian is appointed under this chapter, 49
7575 the court shall determine whether the ward, prior to incapacity, 50
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8484 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
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8888 has executed any valid advance directive under chapter 765. 51
8989 (1) For purposes of this section, the term "health care 52
9090 decision" has the same meaning as in s. 765.101. 53
9191 (2) If any advance directive exists, the court shall 54
9292 specify in its order and letters of guardianship what authority, 55
9393 if any, the guardian shall exercise over the ward with regard to 56
9494 health care decisions and what authority, if any, the surrogate 57
9595 shall continue to exercise over the ward with regard to health 58
9696 care decisions. 59
9797 (3) Pursuant to the grounds listed in s. 765.105, or if 60
9898 the surrogate is unwilling or unable to act, the court may, upon 61
9999 motion from any interested person or upon its own motion, may, 62
100100 with notice to the surrogate ; next of kin, if known; and any 63
101101 other interested persons as the court may direct appropriate 64
102102 parties, modify, or revoke the authority of the surrogate to 65
103103 make health care decisions for the ward. Any order revoking or 66
104104 modifying the authority of the surrogate must be supported by 67
105105 specific written findings of fact after a hearing on the motion . 68
106106 (4) If a the court order provides that a the guardian is 69
107107 responsible for making health care decisions for the ward, the 70
108108 guardian shall assume the responsibilities of the surrogate 71
109109 which are provided in s. 765.205. For purposes of this section, 72
110110 the term "health care decision" has the same meaning as in s. 73
111111 765.101. 74
112112 (5) If a guardian d iscovers an advance directive for 75
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121121 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
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125125 health care for the ward after the guardian is appointed, the 76
126126 guardian must file the advance directive with the court as soon 77
127127 after its discovery as is reasonable, but no later than the due 78
128128 date for the initial guardianshi p report or the annual 79
129129 guardianship plan or the filing date for a petition seeking to 80
130130 exercise authority regarding life -prolonging procedures in 81
131131 compliance with s. 744.4431, whichever is earlier. After the 82
132132 guardian files an advance directive for health car e, the court 83
133133 must determine if the advance directive is an alternative to 84
134134 guardianship and what authority, if any, the guardian will 85
135135 exercise over health care decisions for the ward pursuant to 86
136136 subsections (3) and (4). 87
137137 (6) Upon a finding by the court tha t a health care 88
138138 surrogate designation or a durable power of attorney is an 89
139139 alternative to guardianship for health care decisions, the 90
140140 surrogate or agent may exercise the right to make health care 91
141141 decisions for the ward under the applicable advance directiv e or 92
142142 durable power of attorney without order of the court even if the 93
143143 surrogate or agent has been appointed as guardian of the ward 94
144144 for other delegable rights. 95
145145 Section 2. Paragraph (f) of subsection (3) of section 96
146146 744.3215, Florida Statutes, is amended to read: 97
147147 744.3215 Rights of persons determined incapacitated. — 98
148148 (3) Rights that may be removed from a person by an order 99
149149 determining incapacity and which may be delegated to the 100
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158158 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
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162162 guardian include the right: 101
163163 (f) To make health care decisions as defined in s. 102
164164 765.101. If this right is removed from a person, then court 103
165165 approval for the withdrawal or withholding of life -prolonging 104
166166 procedures, as defined in s. 765.101, is required under s. 105
167167 744.4431 consent to medical and mental health treatment . 106
168168 Section 3. Paragraph (f) of subsection (1) of section 107
169169 744.363, Florida Statutes, is amended, and paragraph (g) is 108
170170 added to that subsection, to read: 109
171171 744.363 Initial guardianship plan. — 110
172172 (1) The initial guardianship plan shall include all of the 111
173173 following: 112
174174 (f)1. A list of any preexisting : 113
175175 a. Orders not to resuscitate executed in accordance with 114
176176 under s. 401.45(3) and the dates such orders were signed; or 115
177177 b. Preexisting Advance directives, as defined in s. 116
178178 765.101 and, the dates such directives were signed. date an 117
179179 order or directive was signed, 118
180180 2. For each item listed under subparagraph 1., the plan 119
181181 must state whether the such order or directive has been revoked, 120
182182 modified, or suspended by the court . 121
183183 (g) , and A description of the steps taken to identify and 122
184184 locate a the preexisting order not to resuscitate or advance 123
185185 directive. 124
186186 Section 4. Paragraph (d) of subsection (1) of section 125
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195195 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
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197197
198198
199199 744.3675, Florida Statutes, is amended, and paragraph (e) is 126
200200 added to that subsection, to read: 127
201201 744.3675 Annual guardianship plan. —Each guardian of the 128
202202 person must file with the court an annual guardianship plan 129
203203 which updates information about the condition of the ward. The 130
204204 annual plan must specify the current needs of the ward and how 131
205205 those needs are proposed to be met in the coming year. 132
206206 (1) Each plan for an adult ward must, if applicable, 133
207207 include: 134
208208 (d) 1. A list of any preexisting : 135
209209 a. Orders not to resuscitate executed in accordance with 136
210210 under s. 401.45(3) and the dates such orders were signed; or 137
211211 b. Preexisting Advance directives, as defined in s. 138
212212 765.101 and, the dates such directives were signed. date an 139
213213 order or directive was signed, 140
214214 2. For each item listed under subparagraph 1., the plan 141
215215 must state whether the such order or directive has been revoked, 142
216216 modified, or suspended by the court . 143
217217 (e) , and A description of the steps taken to identify and 144
218218 locate a the preexisting order not to resuscitate or advance 145
219219 directive. 146
220220 Section 5. Section 744.4431, Florida Statu tes, is created 147
221221 to read: 148
222222 744.4431 Guardianship power regarding life -prolonging 149
223223 procedures.— 150
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232232 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
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236236 (1) Except as provided in this section, decisions by a 151
237237 professional guardian, as defined in s. 744.102, to withhold or 152
238238 withdraw life-prolonging procedures from, or to execute an order 153
239239 not to resuscitate for, a ward must be approved by the court. A 154
240240 professional guardian appointed to act on behalf of a ward's 155
241241 person must petition the court pursuant to the Florida Probate 156
242242 Rules for authority to consent to withhold o r withdraw life-157
243243 prolonging procedures or to execute an order not to resuscitate 158
244244 before taking such action, except as provided in subsection (7). 159
245245 (2) The petition by a professional guardian must contain 160
246246 all of the following: 161
247247 (a) A description of the pro posed action or decision for 162
248248 which court approval is sought and documentation of the 163
249249 authority of the professional guardian to make health care 164
250250 decisions on behalf of the ward. 165
251251 (b) A statement regarding any known objections to the 166
252252 relief sought in the pe tition. 167
253253 (c) A description of the ward's known wishes, including 168
254254 all advance directives executed by the ward, or, if there is no 169
255255 indication of the ward's wishes, a description of why the relief 170
256256 sought is in the best interests of the ward. 171
257257 (d) Any exigent circumstances that exist which necessitate 172
258258 immediate relief. 173
259259 (e) A description of the circumstances requiring the 174
260260 proposed action or decision and evidence, including affidavits, 175
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269269 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
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273273 medical records, or other supporting documentation, showing that 176
274274 the proposed action or decision satisfies the criteria in s. 177
275275 765.305, s. 765.401(3), or s. 765.404, as applicable. 178
276276 (3) A professional guardian must show by clear and 179
277277 convincing evidence that the proposed action or decision he or 180
278278 she is requesting would have been the decision the ward would 181
279279 have chosen if the ward had capacity or, if there is no 182
280280 indication of what the ward would have chosen, that the proposed 183
281281 action or decision is in the best interests of the ward. 184
282282 (4) A professional guardian must serve notice of the 185
283283 petition, and of any hearing, on the ward; the ward's attorney, 186
284284 if any; the ward's next of kin, if known; and any other 187
285285 interested persons as the court may direct, unless such 188
286286 requirement is waived by the court. 189
287287 (5) The court must hold a hearing on the petition if: 190
288288 (a) The ward or the ward's attorney objects to the 191
289289 petition; 192
290290 (b) The ward's next of kin or an interested person objects 193
291291 on any basis under s. 765.105(1); 194
292292 (c) The professional guardian, the ward, or the ward's 195
293293 attorney requests a hearing; or 196
294294 (d) The court has insufficient information to determine 197
295295 whether the criteria for granting the petition has been met. 198
296296 (6) If a hearing is required and exigent circumstances are 199
297297 alleged, the court must hold a preliminary hearing within 72 200
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306306 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
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310310 hours after the petition is filed and do one of the following: 201
311311 (a) Rule on the relief requested immediately after the 202
312312 preliminary hearing; or 203
313313 (b) Conduct an evidentiary hearing within 4 days after the 204
314314 preliminary hearing and rule on the relief requested immediately 205
315315 after the evidentiary hearing. 206
316316 (7) Court approval is not required for the following 207
317317 decisions: 208
318318 (a) A decision to withhold or withdraw life -prolonging 209
319319 procedures made by a professional guardian to whom authority has 210
320320 been granted by the court under s. 744.3115 to carry out the 211
321321 instructions in or to take actions consistent with the ward's 212
322322 advance directive, as long as there are no known objections from 213
323323 the ward; the ward's attorney; the ward's next of kin, if known; 214
324324 and any other interested per sons as the court may direct based 215
325325 on s. 765.105(1). 216
326326 (b) A decision by a professional guardian who has been 217
327327 delegated health care decision -making authority to execute an 218
328328 order not to resuscitate, as described in s. 401.45(3)(a), if 219
329329 the ward is in a hospi tal and the following conditions are met: 220
330330 1. The ward's primary treating physician and at least one 221
331331 other consulting physician document in the ward's medical record 222
332332 that: 223
333333 a. There is no reasonable medical probability for recovery 224
334334 from or a cure of the ward's underlying medical condition; 225
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343343 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
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347347 b. The ward is in an end -stage condition, a terminal 226
348348 condition, or a persistent vegetative state as those terms are 227
349349 defined in s. 765.101, and that the ward's death is imminent; 228
350350 and 229
351351 c. Resuscitation will cause the w ard physical harm or 230
352352 additional pain. 231
353353 2. The professional guardian has notified the ward's next 232
354354 of kin, if known, and any interested persons as the court may 233
355355 direct and the decision is not contrary to the ward's expressed 234
356356 wishes and there are no known ob jections from the ward; the 235
357357 ward's attorney; the ward's next of kin, if known; or any other 236
358358 interested persons as the court may direct on the basis of s. 237
359359 765.105(1). 238
360360 (8) Within 2 business days after executing an order not to 239
361361 resuscitate under paragraph ( 7)(b), a professional guardian must 240
362362 notify the court in writing of all of the following: 241
363363 (a) The date the order not to resuscitate was executed. 242
364364 (b) The location of the ward when the order not to 243
365365 resuscitate was executed. 244
366366 (c) The names of the physici ans who documented the ward's 245
367367 condition in the ward's medical record. 246
368368 Section 6. Section 744.441, Florida Statutes, is amended 247
369369 to read: 248
370370 744.441 Powers of guardian upon court approval. —After 249
371371 obtaining approval of the court pursuant to a petition for 250
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380380 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
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384384 authorization to act,: 251
385385 (1) a plenary guardian of the property, or a limited 252
386386 guardian of the property within the powers granted by the order 253
387387 appointing the guardian or an approved annual or amended 254
388388 guardianship report, may do all of the following : 255
389389 (1)(a) Perform, compromise, or refuse performance of a 256
390390 ward's contracts that continue as obligations of the estate, as 257
391391 he or she may determine under the circumstances. 258
392392 (2)(b) Execute, exercise, or release any powers as 259
393393 trustee, personal representative, custodi an for minors, 260
394394 conservator, or donee of any power of appointment or other power 261
395395 that the ward might have lawfully exercised, consummated, or 262
396396 executed if not incapacitated, if the best interest of the ward 263
397397 requires such execution, exercise, or release. 264
398398 (3)(c) Make ordinary or extraordinary repairs or 265
399399 alterations in buildings or other structures; demolish any 266
400400 improvements; or raze existing, or erect new, party walls or 267
401401 buildings. 268
402402 (4)(d) Subdivide, develop, or dedicate land to public use; 269
403403 make or obtain the vacation of plats and adjust boundaries; 270
404404 adjust differences in valuation on exchange or partition by 271
405405 giving or receiving consideration; or dedicate easements to 272
406406 public use without consideration. 273
407407 (5)(e) Enter into a lease as lessor or lessee for any 274
408408 purpose, with or without option to purchase or renew, for a term 275
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417417 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
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421421 within, or extending beyond, the period of guardianship. 276
422422 (6)(f) Enter into a lease or arrangement for exploration 277
423423 and removal of minerals or other natural resources or enter into 278
424424 a pooling or unitization agreement. 279
425425 (7)(g) Abandon property when, in the opinion of the 280
426426 guardian, it is valueless or is so encumbered or in such 281
427427 condition that it is of no benefit to the estate. 282
428428 (8)(h) Pay calls, assessments, and other sums chargeable 283
429429 or accruing against, or on account of, securities. 284
430430 (9)(i) Borrow money, with or without security, to be 285
431431 repaid from the property or otherwise and advance money for the 286
432432 protection of the estate. 287
433433 (10)(j) Effect a fair and reasonable compromise with any 288
434434 debtor or obligor or extend, renew, or in any manner modify the 289
435435 terms of any obligation owing to the estate. 290
436436 (11)(k) Prosecute or defend claims or proceedings in any 291
437437 jurisdiction for the protection of th e estate and of the 292
438438 guardian in the performance of his or her duties. Before 293
439439 authorizing a guardian to bring an action described in s. 294
440440 736.0207, the court shall first find that the action appears to 295
441441 be in the ward's best interests during the ward's probabl e 296
442442 lifetime. There shall be a rebuttable presumption that an action 297
443443 challenging the ward's revocation of all or part of a trust is 298
444444 not in the ward's best interests if the revocation relates 299
445445 solely to a devise. This subsection paragraph does not preclude 300
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454454 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
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458458 a challenge after the ward's death. If the court denies a 301
459459 request that a guardian be authorized to bring an action 302
460460 described in s. 736.0207, the court must shall review the 303
461461 continued need for a guardian and the extent of the need for 304
462462 delegation of the ward's rights. 305
463463 (12)(l) Sell, mortgage, or lease any real or personal 306
464464 property of the estate, including homestead property, or any 307
465465 interest therein for cash or credit, or for part cash and part 308
466466 credit, and with or without security for unpaid balances. 309
467467 (13)(m) Continue any unincorporated business or venture in 310
468468 which the ward was engaged. 311
469469 (14)(n) Purchase the entire fee simple title to real 312
470470 estate in this state in which the guardian has no interest, but 313
471471 the purchase may be made only for a home for the ward, to 314
472472 protect the home of the ward or the ward's interest, or as a 315
473473 home for the ward's dependent family. If the ward is a married 316
474474 person and the home of the ward or of the dependent family of 317
475475 the ward is owned by the ward and spouse as an estate by the 318
476476 entirety and the home is sold pursuant to the authority of 319
477477 subsection (12) paragraph (l), the court may authorize the 320
478478 investment of any part or all of the proceeds from the sale 321
479479 toward the purchase of a fee simple title to real estate in this 322
480480 state for a home for the ward or the dependent family of the 323
481481 ward as an estate by the entirety owned by the ward and spouse. 324
482482 If the guardian is authorized to acquire title to real estate 325
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491491 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
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495495 for the ward or dependent family of the ward as an estate by the 326
496496 entirety in accordance with the preceding provisions, the 327
497497 conveyance must shall be in the name of the war d and spouse and 328
498498 shall be effective to create an estate by the entirety in the 329
499499 ward and spouse. 330
500500 (15)(o) Exercise any option contained in any policy of 331
501501 insurance payable to, or inuring to the benefit of, the ward. 332
502502 (16)(p) Pay reasonable funeral, interme nt, and grave 333
503503 marker expenses for the ward from the ward's estate. 334
504504 (17)(q) Make gifts of the ward's property to members of 335
505505 the ward's family in estate and income tax planning procedures. 336
506506 (18)(r) When the ward's will evinces an objective to 337
507507 obtain a United States estate tax charitable deduction by use of 338
508508 a split interest trust (as that term is defined in s. 736.1201), 339
509509 but the maximum charitable deduction otherwise allowable will 340
510510 not be achieved in whole or in part, execute a codicil on the 341
511511 ward's behalf amending said will to obtain the maximum 342
512512 charitable deduction allowable without diminishing the aggregate 343
513513 value of the benefits of any beneficiary under such will. 344
514514 (19)(s) Create or amend revocable trusts or create 345
515515 irrevocable trusts of property of the w ard's estate which may 346
516516 extend beyond the disability or life of the ward in connection 347
517517 with estate, gift, income, or other tax planning or in 348
518518 connection with estate planning. The court shall retain 349
519519 oversight of the assets transferred to a trust, unless othe rwise 350
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528528 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
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531531
532532 ordered by the court. 351
533533 (20)(t) Renounce or disclaim any interest by testate or 352
534534 intestate succession or by inter vivos transfer. 353
535535 (21)(u) Enter into contracts that are appropriate for, and 354
536536 in the best interest of, the ward. 355
537537 (22)(v) As to a minor ward, pay expenses of the ward's 356
538538 support, health, maintenance, and education, if the ward's 357
539539 parents, or either of them, are alive. 358
540540 (2) A plenary guardian or a limited guardian of a ward may 359
541541 sign an order not to resuscitate as provided in s. 401.45(3). 360
542542 When a plenary guardian or a limited guardian of a ward seeks to 361
543543 obtain approval of the court to sign an order not to 362
544544 resuscitate, if required by exigent circumstances, the court 363
545545 must hold a preliminary hearing within 72 hours after the 364
546546 petition is filed, and : 365
547547 (a) Rule on the relief requested immediately after the 366
548548 preliminary hearing; or 367
549549 (b) Conduct an evidentiary hearing not later than 4 days 368
550550 after the preliminary hearing and rule on the relief requested 369
551551 immediately after the evidentiary hearing. 370
552552 Section 7. This act shall take effect July 1, 2023. 371