The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Children, Families, and Elder Affairs
BILL: CS/SB 226
INTRODUCER: Judiciary Committee and Senator Berman
SUBJECT: Support for Dependent Adult Children
DATE: March 3, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Collazo Cibula JU Fav/CS
2. Delia Cox CF Pre-meeting
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 226 specifies procedures for effectuating the common law duty of parents to support a
dependent adult child. In this context, a dependent adult child is an adult who is dependent on
others for care or support because of a mental or physical incapacity that began before the age of
18. This duty of support is detailed in court opinions and is recognized in the Florida Statutes,
but the procedures for a dependent adult child to obtain support are not clear.
This bill specifies that a suit to establish support may be initiated at any time by the dependent
adult child, the child’s parent, or another person, including an agent under the adult child’s
durable power of attorney, or the adult child’s guardian or guardian advocate. In determining the
amount of support, the court must consider the adult child’s income and assets, existing and
future needs, support provided by a parent, the financial resources of each parent, and the
availability of other resources and programs to support the adult child. The court may order that
support payments be made to the adult child, the adult child’s guardian advocate, guardian, or
agent under a durable power of attorney or a special needs or pooled trust.
The bill takes effect July 1, 2023.
REVISED: BILL: CS/SB 226 Page 2
II. Present Situation:
Support for Dependent Adult Children
Generally, the obligation of a parent to support a child ceases when the child reaches majority,
but an exception arises when the child is, from physical or mental deficiencies, unable to support
himself or herself.
1
State common law imposes a duty of support upon parents for a dependent
adult child who is unable to support himself or herself because of a mental or physical incapacity
that began prior to the child reaching majority.
2
This duty of support rests upon both parents
throughout the dependency and throughout their lives.
3
In 1973, the Legislature adopted s. 743.07, F.S., removing the disability of nonage, while
preserving an exception for continued support of a certain class of dependent adults.
4
In its
present form, the statute provides as follows (emphases added):
743.07 Rights, privileges, and obligations of persons 18 years of age or
older.—
(1) The disability of nonage is hereby removed for all persons in this
state who are 18 years of age or older, and they shall enjoy and suffer the
rights, privileges, and obligations of all persons 21 years of age or older
except as otherwise excluded by the State Constitution immediately
preceding the effective date of this section and except as otherwise provided
in the Beverage Law.
(2) This section shall not prohibit any court of competent jurisdiction
from requiring support for a dependent person beyond the age of 18 years
when such dependency is because of a mental or physical incapacity which
began prior to such person reaching majority or if the person is dependent
in fact, is between the ages of 18 and 19, and is still in high school,
performing in good faith with a reasonable expectation of graduation
before the age of 19.
(3) This section shall operate prospectively and not retrospectively,
and shall not affect the rights and obligations existing prior to July 1, 1973.
The statute preserves a common law right to seek adult dependent support from a parent in a
court of competent jurisdiction, if the dependency was the result of a mental or physical
incapacity that began prior to the person reaching majority.
5
The circuit court is the proper court
for such adjudications.
6
The right to support, and the corresponding right to bring the cause of
action, belongs to the mentally or physically disabled adult whose disability began prior to
1
Perla v. Perla, 58 So. 2d 689, 690 (Fla. 1952).
2
Brown v. Brown, 714 So. 2d 475, 477 (Fla. 5th DCA 1998); Monitzer v. Monitzer, 600 So. 2d 575, 575 (Fla. 2d DCA 1992);
Fincham v. Levin, 155 So. 2d 883, 884 (Fla. 1st DCA 1963).
3
Fernandez v. Fernandez, 306 So. 3d 1013, 1015 (Fla. 3d DCA 2020) (quoting Hastings v. Hastings, 841 So. 2d 484, 486
(Fla. 3d DCA 2003) (internal citations omitted)).
4
Fernandez, 306 So. 3d at 1015.
5
Fernandez, 306 So. 3d at 1016-17.
6
Fernandez, 306 So. 3d at 1015. BILL: CS/SB 226 Page 3
majority,
7
although the child does not need to be adjudicated dependent before he or she reaches
majority for the court to order extended support.
8
In cases where the parents of a dependent adult child have dissolved their marriage, and one
party has fulfilled his or her child support obligations through the age of majority as provided in
the final judgment of dissolution, an independent action may nevertheless be brought to
adjudicate that party’s continuing support obligation for the dependent adult child.
9
Aside from the above-described statute that recognizes the existence of a common law right to
seek support for dependent persons, state statutes do not otherwise recognize or regulate any
right to support for dependent adult children.
Kinds of Financial Support Available to Adult Dependent Children
Government Benefits
There are many government benefits available to individuals with special needs, and they vary
significantly from state to state. Some of the major programs are:
10
Medicaid. Medicaid provides basic medical care to low-income individuals. Most states also
have “waiver” Medicaid programs covering residential, day care, career, and other services.
Supplemental Security Income (SSI). SSI provides funds for food and shelter to individuals
with disabilities. To qualify, a person must have less than $2,000 in “countable assets.”
Social Security Disability Insurance (SSDI). SSDI requires that participants have been unable
to work for at least a year due to their disability. Benefits are based on the individual’s
income history and the number of quarters they have worked and contributed to the program.
Disabled Adult Child (DAC). DAC requires a determination that the onset of the participant’s
disability occurred before age 22, that the person is unmarried, and that the participant has a
parent who has a disability, is retired or deceased and who qualifies for Social Security
himself or herself.
Supplemental Nutrition Assistance Program (SNAP/Food Stamps). SNAP has eligibility
guidelines similar to SSI.
Section 8 Housing. Section 8 Housing subsidizes residential rents for families for low-
income families, which may include those with special needs. Eligibility is based on a sliding
scale that considers income and family size.
11
Special Needs Trusts
A special needs trust, sometimes called a supplemental needs trust, is a legal vehicle enabling
assets to be held on behalf of someone with disabilities without affecting their eligibility for
7
Id.
8
Skelly v. Skelly, 300 So. 3d 342, 345 (Fla. 5th DCA 2020) (confirming that s. 743.07(2), F.S., does not require that a child
be adjudicated dependent before he or she reaches majority for the trial court to order extended support).
9
Fernandez, 306 So. 3d at 1015.
10
Special Needs Alliance, Government Benefits, available at https://www.specialneedsalliance.org/special-needs-
101/government-benefits/ (last visited Feb. 27, 2023).
11
Id. BILL: CS/SB 226 Page 4
means-tested public benefits such as Medicaid or Supplemental Security Income.
12
Put another
way, the essential purpose of a special needs trust is usually to improve the quality of an
individual’s life without disqualifying him or her from eligibility for public benefits.
13
Special needs trusts are meant to supplement the funds and services available through
government programs.
14
While assets held by the trust are not “countable” for the purpose of
qualifying for such programs, there are strict regulations regarding disbursements.
15
To create a valid special needs trust, the trust must be established in a way that complies with the
Federal law authorizing them.
16
Specifically, a special needs trust must:
Contain the assets of an individual under age 65;
Be established for an individual who has a disability that makes him or her substantially
unable to work;
17
Be established for the benefit of the individual;
Be established by the individual’s parent, grandparent, legal guardian, or a court; and
Reimburse the state for all of the medical assistance paid on behalf of the individual from any
remaining assets upon the individual’s death.
18
Special needs trusts can be either “first party” or “third party” trusts.
19
A first-party special needs
trust is created with assets belonging to an individual with disabilities, who becomes the
“beneficiary.” The funds typically consist of a personal injury settlement or an inheritance. The
person must be under 65 at the time that the trust is established. Funds remaining in the trust at
the beneficiary’s death must be used to reimburse Medicaid for services to that individual before
they can be distributed to anyone else.
20
A third-party special needs trust is created with assets provided by anyone other than the
beneficiary, such as parents, other relatives, or friends of the beneficiary.
21
The trust can be
created and funded during the life of the originator (“inter vivos”) or as part of a last will and
testament (“testamentary”). Upon the beneficiary’s death, there is no requirement to use residual
funds to reimburse Medicaid for services provided to the individual, and “remainder”
beneficiaries may be named to receive those assets.
22
12
Special Needs Alliance, Special Needs Trusts and Personal Injury Settlements, available at
https://www.specialneedsalliance.org/ (last visited Feb. 27, 2023).
special-needs-101/special-needs-trusts-and-personal-injury-settlements/ (last visited Feb. 27, 2023).
13
Special Needs Alliance, Administering a Special Needs Trust: A Handbook for Trustees (2022 Ed.), at p. 4, available at
https://www.specialneedsalliance.org/wp-content/uploads/2022/01/2022-SNA-Handbook.pdf. (last visited Feb. 27, 2023)
14
Special Needs Alliance, Special Needs Trusts and Personal Injury Settlements, available at
https://www.specialneedsalliance.org/special-needs-101/special-needs-trusts-and-personal-injury-settlements/ (last visited
Feb. 27, 2023).
15
Id.
16
42 U.S.C. s. 1396p(d)(4).
17
See 42 U.S.C. s. 1382c(a)(3) (providing full details of what constitutes a disability).
18
Id.
19
Special Needs Alliance, Special Needs Trusts and Personal Injury Settlements, available at
https://www.specialneedsalliance.org/special-needs-101/special-needs-trusts-and-personal-injury-settlements/ (last visited
Feb. 27, 2023).
20
Id.
21
Id.
22
Id. BILL: CS/SB 226 Page 5
Pooled Trusts
A pooled trust is often a practical alternative for small estates or where it is difficult to identify a
person who will agree to serve as trustee. Sub-accounts belonging to many beneficiaries are
managed as a single entity, usually by nonprofit corporations, which call upon the experience of
social workers, money managers, and attorneys specializing is special needs cases. Because
many financial institutions do not handle small special needs trusts, or charge fees that are not
cost-effective for modest trusts, pooled trusts can give families access to highly skilled trustees.
Funds remaining at the beneficiary’s death are typically divided between Medicaid and the
nonprofit entity.
23
Similar to special needs trusts, pooled trusts must be established in a way that complies with the
Federal law authorizing them.
24
Specifically, a pooled trust must:
Contain the assets of an individual of any age who has a disability that makes him or her
substantially unable to work;
25
Be established for the benefit of the individual;
Be established and managed by a nonprofit association;
Maintain a separate account for each beneficiary but pool the funds for investment and
management purposes;
Be established by the parent, grandparent, or legal guardian of the individual, by the
individual, or by a court; and
Reimburse the state for all of the medical assistance paid on behalf of the individual from any
remaining assets upon the individual’s death to the extent the funds are not retained by the
trust.
26
Child Support
In dissolution of marriage proceedings, the court may at any time order a parent to pay support to
the other parent or to a third party who has custody.
27
The amount of child support is based on
statutory child support guidelines.
28
These guidelines are intended to ensure support amounts are
fair.
29
Child support guidelines are used the first time child support is ordered and every time the child
support amount changes. They are also used to review the order to see if the support amount
should be changed. Child support guidelines consider:
The income of both parents;
The child's health care and child care costs; and
23
Id.
24
42 U.S.C. s. 1396p(d)(4)(C).
25
42 U.S.C. s. 1382c(a)(3).
26
Id.
27
Section 61.13(1)(a)1.a., F.S.
28
Fla. Dep’t of Rev., Child Support Amounts, available at
https://floridarevenue.com/childsupport/child_support_amounts/Pages/child support_amounts.aspx (last visited Feb. 27,
2023); see also s. 61.30, F.S. (providing the child support guidelines).
29
Fla. Dep’t of Rev., Child Support Amounts, available at
https://floridarevenue.com/childsupport/child_support_amounts/Pages/child_support_amounts.aspx (last visited Feb. 27,
2023). BILL: CS/SB 226 Page 6
The standard needs for the child.
30
A table of support amounts based on the child’s age and net income of the parents is provided in
statute.
31
The court or agency establishing support must use the guidelines to decide the amount of child
support that will go in the support order.
32
In special circumstances, support amounts can be
higher or lower than the guideline amounts. For example, a judge may consider a child’s high
medical expenses as a reason to change the support amount. In most cases, judges have to give
written reasons why support amounts are different from the guideline amounts.
33
All child support orders and income deduction orders entered on or after October 1, 2010, must
provide, among other things, for child support to terminate on a child’s 18
th
birthday, unless the
court finds or has previously found that child support should continue:
for a dependent person beyond the age of 18 years when such dependency
is because of a mental or physical incapacity which began prior to such
person reaching majority or if the person is dependent in fact, is between
the ages of 18 and 19, and is still in high school, performing in good faith
with a reasonable expectation of graduation before the age of 19.
34
Additionally, a court that initially enters an order requiring a parent to make child support
payments has continuing jurisdiction after entry of the initial order to modify the amount and
terms and conditions of the child support payments if:
The modification is found by the court to be in the best interests of the child;
There is a substantial change in the circumstances of the parties;
The child support payments are for an adult child who is dependent due to a mental or
physical incapacity that began before age 18;
The child support payments are for a child who is between the ages of 18 and 19 and is
reasonably expected to graduate before age 19; or
The child is emancipated, marries, joins the armed services, or dies.
35
Guardianship
If a court finds that a person does not have the ability to safely manage the things that belong to
him or her, or the ability to meet his or her basic health, safety, and self-care needs, the court will
30
Fla. Dep’t of Rev., Child Support Amounts, available at
https://floridarevenue.com/childsupport/child_support_amounts/Pages/child_support_amounts.aspx (last visited Feb. 27,
2023); see also s. 61.30, F.S. (providing the child support guidelines).
31
Id.
32
Fla. Dep’t of Rev., Child Support Amounts, available at
https://floridarevenue.com/childsupport/child_support_amounts/Pages/child_support_amounts.aspx (last visited Feb. 27,
2023).
33
Id.
34
Section 743.07(2), F.S.
35
Section 61.13(1)(a)2., F.S. BILL: CS/SB 226 Page 7
rule that this person is incapacitated.
36
In many cases, after a court decides that a person is
incapacitated, it will choose someone else to make some or all the decisions for the incapacitated
person. This is called a guardianship.
37
Being placed in a guardianship results in the loss of an individual’s right to make his or her own
life choices. The rights that a person can lose include the right to contract, vote, travel, marry,
work, consent to treatment, sue or defend lawsuits, choose living arrangements, make decisions
about their social life, have a driver’s license, personally apply for benefits, and manage money
or property.
38
Guardianships must be specific to the abilities and needs of the individual and should not be any
more restrictive than necessary.
39
Consequently, there are different types of guardianships under
state law. They include:
40
Preneed guardian;
41
Voluntary guardianship;
42
Emergency temporary guardianship;
43
Limited guardianship;
44
Guardian advocate for individuals who have a developmental disability;
45
Guardian advocate for individuals receiving mental health treatment;
46
and
Full (i.e. plenary) guardianship.
47
The powers and duties of a court-appointed guardian include, but are not limited to:
Filing an initial plan and annual reports;
48
Making provision for the medical, mental, rehabilitative, and personal care of the person;
49
Making residential decisions on behalf of the person;
50
Advocating on behalf of the person in institutional and other residential settings;
51
and
Making financial decisions on behalf of the person.
52
36
See generally Part V, Ch. 744, F.S.; see also Disability Rights Florida, What is Guardianship?, available at
https://disabilityrightsflorida.org/disability-topics/disability_topic_info/what_is_guardianship (last visited Feb. 27, 2023).
37
See id.
38
See 744.1012(1), F.S.; see also Disability Rights Florida, Types of Guardianship, available at
https://disabilityrightsflorida.org/disability-topics/disability_topic_info/types_of_guardianship (last visited Feb. 27, 2023).
39
Section 744.1012(2), F.S.; see also Disability Rights Florida, Types of Guardianship, available at
https://disabilityrightsflorida.org/disability-topics/disability_topic_info/types_of_guardianship (last visited Feb. 27, 2023).
40
See generally Disability Rights Florida, Types of Guardianship, available at https://disabilityrightsflorida.org/disability-
topics/disability_topic_info/types_of_guardianship (last visited Feb. 27, 2023).
41
Sections 744.3045 and 744.3046, F.S.
42
Section 744.341, F.S.
43
Section 744.3031, F.S.
44
Section 744.441(1), F.S.; see also s. 744.102(9)(a), F.S. (defining “limited guardian”).
45
Sections 744.3085 and 393.12, F.S.
46
Sections 744.3085 and 394.4598, F.S.
47
Section 744.441(1), F.S.; see also s. 744.102(9)(b), F.S. (defining “plenary guardian”).
48
Section 744.361(6)-(7), F.S.
49
Section 744.361(13)(f), F.S.
50
Section 744.361(13)(h), F.S.
51
Section 744.361(13)(i), F.S.
52
Section 744.361(12), F.S. BILL: CS/SB 226 Page 8
Any resident of the state who is 18 years old and of sound mind is qualified to act as a
guardian.
53
Additionally, a non-resident may serve if he or she is related to the person with a
developmental disability by blood, adoption, or law.
54
Certain individuals, however, cannot be
appointed to act as a guardian.
55
Guardians must file an initial guardianship report with the court within 60 days after
appointment.
56
The initial guardianship report must consist of an initial guardianship plan,
57
which must include certain specified information for the person for whom the guardianship is
being established. For example, the initial guardianship plan must include information regarding
the provision of medical, mental, or personal care services for the welfare of the person, as well
as the place and kind of residential setting best suited for the needs of the person.
58
Guardians must also file an annual guardianship report with the court.
59
The annual guardianship
report must be filed within 90 days after the last day of the anniversary month that the letters of
guardianship were signed, and the plan must cover the coming fiscal year, ending on the last day
in such anniversary month. The annual guardianship report must include an annual guardianship
plan
60
containing information regarding the residence of the person for whom the guardianship
has been established; the medical and mental health conditions, treatment, and rehabilitation
needs of the person; the social condition of the person; and a list of any preexisting orders not to
resuscitate, or preexisting advance directives.
61
Guardian Advocates
A “guardian advocate” is a person appointed by a written order of the court to represent a person
with developmental disabilities.
62
A “developmental disability” means a disorder or syndrome
that is attributable to intellectual disability, cerebral palsy, autism, spina bifida, Down syndrome,
Phelan-McDermid syndrome, or Prader-Willi syndrome; that manifests before the age of 18; and
that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.
63
Guardian advocacy is a circuit court process for family members, caregivers, or friends of
individuals with a developmental disability to obtain the legal authority to act on their behalf if
the person lacks the decision-making ability to do some, but not all, of the decision-making tasks
necessary to care for his or her person or property, or if the person has voluntarily petitioned for
the appointment of a guardian advocate.
64
53
Section 744.309(1), F.S.
54
Section 744.309(2), F.S.
55
See generally ss. 744.309(3), (6), F.S.
56
Sections 744.361(6) and 744.362(1), F.S.
57
Section 744.362(1), F.S.
58
See s. 744.363(1)(a)-(f), F.S.
59
Section 744.367(1), F.S.
60
Section 744.367(3)(a), F.S.
61
Section 744.3675, F.S.
62
Sections 393.063(21) and 393.12, F.S.
63
Section 393.063(12), F.S.
64
See s. 393.12(2)(a), F.S.; see also Eighteenth Judicial Circuit, Seminole County, Florida, Florida Guardian Advocate Law
and Information (Jul. 2017), at 1, available at https://flcourts18.org/docs/sem/Florida_Guardian_Advocacy_Law_and_
information_Guide.pdf. (last visited Feb. 27, 2023) BILL: CS/SB 226 Page 9
State law recognizes the appointment of a guardian advocate as a less restrictive alternative to
guardianship.
65
A guardian advocate can be appointed without having to declare the person with
a developmental disability incapacitated.
66
The process of becoming a guardian advocate of a
person with a developmental disability does not require the hiring of an attorney, although during
the proceedings the court will appoint an attorney for the person with the developmental
disability to ensure that his or her best interests are protected.
67
If the person lacks the capacity to make any decisions about his or her care, it may be more
appropriate for the court to appoint a plenary guardian who is authorized to act on the person’s
behalf in all matters. The process of appointing a plenary guardian requires the court to
determine that the person is incapacitated, and the person petitioning to become a plenary
guardian must have an attorney.
68
A guardian advocate for a person with a developmental disability has the same powers, duties,
and responsibilities required of a guardian under the guardianship statute or as defined by court
order issued under the statute governing the appointment of guardian advocates.
69
The qualifications to serve as a guardian advocate are the same as those required of any guardian
under the guardianship statute.
70
The court will also consider the wishes expressed by a
developmentally disabled person as to whom will be appointed as his or her guardian advocate.
71
A guardian advocate need not be the caregiver of the person with a disability.
72
III. Effect of Proposed Changes:
The common law and statutes of this state recognize that a parent has a duty to support a
dependent adult child who has a mental or physical incapacity that began before the age of 18.
Under current law, a dependent adult child may pursue support from a parent in court, but the
procedures for doing so, proof required to obtain support, and standards governing awards are
not clear. This bill clarifies those matters by creating or amending statutes relating to the
65
Section 744.3085, F.S.
66
Section 393.12(2)(a), F.S.
67
Section 393.12(2)(b), F.S.; see also Eighteenth Judicial Circuit, Seminole County, Florida, Florida Guardian Advocate
Law and Information (Jul. 2017), at 2, available at https://flcourts18.org/docs/sem/Florida_Guardian_Advocacy_Law_and_
information_Guide.pdf. (last visited Feb. 27, 2023)
68
Eighteenth Judicial Circuit, Seminole County, Florida, Florida Guardian Advocate Law and Information (Jul. 2017), at 1,
available at https://flcourts18.org/docs/sem/Florida_Guardian_Advocacy_Law_and_information_Guide.pdf. (last visited Feb.
27, 2023)
69
Section 393.12(10), F.S.
70
Fifth Judicial Circuit, Lake County, Florida, Florida Law and Guardian Advocacy: A Guide for Families and Friends of
Developmentally Disabled Individuals (Oct. 2014), at 2, available at
https://www.lakecountyclerk.org/forms/Guardianship/DavisGuardianAdvocacyManual.pdf (last visited Feb. 27, 2023)
71
Id.
72
Eighteenth Judicial Circuit, Seminole County, Florida, Florida Guardian Advocate Law and Information (Jul. 2017), at 2,
available at https://flcourts18.org/docs/sem/Florida_Guardian_Advocacy_Law_and_information_Guide.pdf. (last visited Feb.
27, 2023) BILL: CS/SB 226 Page 10
dissolution of marriage, support and time-sharing;
73
developmental disabilities;
74
determination
of parentage;
75
and guardianship.
76
Amendments to Dissolution of Marriage, Support, and Time-Sharing Statutes
Within the statutes governing dissolution of marriage, support, and time-sharing, the bill creates
s. 61.1255, F.S., entitled “Support for dependent adult children; powers of court,” to provide for
the support of dependent adult children. Specifically, the bill:
Defines the term “dependent adult child” to mean an unmarried adult who is incapable of
self-support as a result of physical or mental incapacity that began before the person reached
the age of 18.
Establishes that the parents of a dependent adult child are responsible for supporting that
child.
Requires that any right of a parent or other person to decide where the dependent adult child
will live be established in a guardianship proceeding brought under the statutes governing
developmental disabilities or guardianship.
Provides that a suit to establish support for a dependent adult child may only be filed by one
of the following:
o The dependent adult child or his or her agent under a durable power of attorney, if the
dependent adult child’s right to sue or defend lawsuits has not been removed by the court.
Any such action must be brought in the circuit court in the county in which the child
resides.
o A parent or other person on behalf of the dependent adult child. Any such action must be
brought under the statutes governing developmental disabilities or guardianship.
o The dependent adult child’s guardian advocate appointed under the statutes governing
developmental disabilities, or guardian appointed under the statutes governing
guardianship.
Provides that a suit to establish support for a dependent adult child may be filed at any time
after he or she reaches the age of 17 years and 6 months, unless such an order is already in
place, having been established during the child’s minority.
Provides that if a court has jurisdiction over the parties because of an issue of child support,
the parents may agree in writing to extend support in the existing case if the agreement is
submitted to the court for approval before the dependent adult child reaches the age of 18.
Otherwise, the amount of support to be paid by one parent to the other must be established in
a guardianship proceeding or in a separate support proceeding in circuit court pursuant to the
bill. The bill does not preclude a court from establishing support, ordering continued support,
or enforcing or modifying support orders established under the statutes governing dissolution
of marriage, support, and time-sharing, absent an agreement by the parents.
Provides that support ordered after the dependent adult child reaches the age of 18 may be
paid only to the dependent adult child or his or her court-appointed guardian advocate,
guardian, or agent under a durable power of attorney. However, the court may irrevocably
73
Chapter 61, F.S.
74
Chapter 393, F.S.
75
Chapter 742, F.S.
76
Chapter 744, F.S. BILL: CS/SB 226 Page 11
assign the support to a special needs trust or to a pooled trust under Federal law
77
established
for the dependent adult child by the dependent adult child, his or her agent under a durable
power of attorney, the court, a parent or grandparent, a guardian, or a guardian advocate who
has been delegated those rights in order to maintain the dependent adult child’s means-based
government benefits.
Prohibits the Department of Revenue from filing a petition to establish, modify, or enforce a
support order under the bill.
The bill also creates s. 61.31, F.S., entitled “Amount of support for a dependent adult child,” to
provide for the amount of support for dependent adult children. In determining the amount of
support to be paid after a dependent adult child reaches the age of 18, the specific terms and
conditions of such support, and the rights and duties of both parents with respect to support, the
court must determine and give consideration to all of the following:
The dependent adult child’s income and assets;
Any existing and future needs of the dependent adult child which are directly related to his or
her mental or physical incapacity and the substantial care and personal supervision directly
required by or related to that incapacity;
Whether a parent pays for or will pay for the care or supervision of the dependent adult child
or provides or will provide substantial care or personal supervision to the dependent adult
child himself or herself;
The financial resources available to each parent for the support, care, and supervision of the
dependent adult child; and
Any other financial resources or other resources or programs available for the support, care,
and supervision of the dependent adult child.
The bill provides that the court may irrevocably assign the support to a special needs trust or to a
pooled trust under Federal law
78
established for the dependent adult child by the dependent adult
child, his or her agent under a durable power of attorney, the court, a parent or grandparent, a
guardian, or a guardian advocate who has been delegated those rights in order to maintain the
dependent adult child’s means-based government benefits. In making its decisions, the court
must take into consideration any state or federal programs and benefits that the dependent adult
child is receiving and the effect that the court-ordered support would have on the dependent adult
child’s continued eligibility for such programs and benefits.
The bill amends the statute governing child support and parenting
79
by replacing certain statutory
cross-references
80
to s. 743.07(2), F.S., with specific language from the cross-referenced statute.
The replacement of the cross-references with specific language from the cross-referenced statute
is a technical change that does not create new rights or obligations relating to child support. The
language inserted from the cross-referenced statute relates to the authority of a court to order
child support for a child who is between 18 and 19 and is reasonably expected to graduate high
school before age 19.
77
See 42 U.S.C. s. 1396p(d)(4) (providing for special needs trusts); see also 42 U.S.C. s. 1396p(d)(4)(C) (providing for
pooled trusts).
78
See id.
79
Section 61.13, F.S.
80
Section 743.07(2), F.S. BILL: CS/SB 226 Page 12
The bill amends the statute governing child support and guidelines,
81
to provide that the
guidelines in that section do not apply to support for a dependent adult child, and that the amount
of support for a dependent adult child must be determined with reference to the new statute
created by the bill governing the amount of support for a dependent adult child.
The bill amends the statute governing child support guidelines and retroactive child support.
82
The amendment clarifies that the existing child support guidelines apply to a child support order
for a child who is dependent in fact and between the ages of 18 and 19 and who is still in high
school and is performing in good faith with a reasonable expectation of graduation before he or
she reaches the age of 19.
Amendments to Developmental Disabilities Statute
Within the statutes governing developmental disabilities, the bill amends the section governing
the capacity and appointment of guardian advocates,
83
to provide that a person who is being
considered for appointment or is appointed as a guardian advocate is not required to be
represented by an attorney if he or she is delegated the right of a parent to receive periodic
payments for the support, care, maintenance, education, or other needs of the person with a
developmental disability.
The bill also provides that a petition to appoint a guardian advocate may include a request for
periodic payments from either or both parents of the person with a developmental disability for
the support, care, maintenance, education, or other needs of that person.
Amendments to Determination of Parentage Statute
Within the statutes governing the determination of parentage, the bill amends the section
governing hearings and court orders for support, hospital expenses, and attorney fees,
84
to make
conforming changes. The bill also amends the section governing the retention of jurisdiction for
future orders,
85
to clarify that modifications of child support and time-sharing must be
determined under the statutes governing dissolution of marriage, support, and time-sharing.
Amendments to Guardianship Statute
Within the statutes governing guardianship, the bill creates s. 744.1013, F.S., entitled
“Jurisdiction for support claims,” to provide jurisdiction for dependent adult child-related
support claims. The bill provides that the court has jurisdiction over claims for support of a
dependent adult child and must adjudicate the financial obligation, including health insurance, of
the dependent adult child’s parents and enforce the financial obligation as provided in the statute
governing dissolution of marriage, support, and time-sharing. All support required to be paid in
relation to a dependent adult child over the age of 18 must be paid to the dependent adult child or
his or her court-appointed guardian advocate, guardian, or agent under a durable power of
81
Section 61.29, F.S.
82
Section 61.30, F.S.
83
Section 393.12, F.S.
84
Section 742.031, F.S.
85
Section 742.06, F.S. BILL: CS/SB 226 Page 13
attorney. However, the court may irrevocably assign the support to a special needs trust or to a
pooled trust under Federal law
86
established for the dependent adult child by the dependent adult
child, his or her agent under a durable power of attorney, the court, a parent or grandparent, a
guardian, or a guardian advocate who has been delegated those rights in order to maintain the
dependent adult child’s means-based government benefits. Any order for support entered in a
proceeding under the statutes governing guardianship or developmental disabilities supersedes
any support order entered under the statute governing the dissolution of marriage, support, and
time-sharing.
The bill also creates s. 744.422, F.S., entitled “Petition for child support for a dependent adult
child,” to authorize the filing of petitions in court for child support for a dependent adult child.
The bill provides that pursuant to the new statute created within the dissolution of marriage,
support, and time-sharing statutes providing for the support of dependent adult children, a
guardian may petition the court for an order requiring either or both parents to pay periodic
amounts for the support, care, maintenance, education, and any other needs of a dependent adult
child if not otherwise provided for in the guardianship plan. The amount of support must be
determined pursuant to the new statute created within the dissolution of marriage, support, and
time-sharing statutes providing for same.
The bill amends the statute governing guardians of minors,
87
to include a reference to the
dissolution of marriage, support, and time-sharing statute.
The bill takes effect July 1, 2023.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
86
See 42 U.S.C. s. 1396p(d)(4) (providing for special needs trusts); see also 42 U.S.C. s. 1396p(d)(4)(C) (providing for
pooled trusts).
87
Section 744.3021, F.S. BILL: CS/SB 226 Page 14
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
By providing clear procedures to obtain support for adult dependent children, more suits
seeking support will likely be pursued and more support obtained. However, the clear
procedures may reduce the time and expense of obtaining awards.
C. Government Sector Impact:
According to the Office of the State Courts Administrator (OSCA), any additional
workload on the courts as a result of the bill will apply only to a small number of cases.
Moreover, OSCA reports that it does not have sufficient “data to quantifiably establish
the increase in judicial time and workload as a result of additional court filings” that
result from the bill.
88
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill creates the following sections of the Florida Statutes: 61.1255, 61.31, 744.1013, and
744.422.
This bill substantially amends the following sections of the Florida Statutes: 61.13, 61.29, 61.30,
393.12, 742.031, 742.06, and 744.3021.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Judiciary on February 7, 2023:
Makes technical changes to s. 61.13(1)(a)2., F.S., to clarify that the provided list was
intended to establish separate independent bases for which a court is authorized to
modify the amount and terms and conditions of child support payments.
Replaces references to “attorney in fact” with references to “agent under a durable
power of attorney,” to ensure consistency within the bill and to use the more common
88
Office of the State Courts Administrator, 2023 Judicial Impact Statement for SB 226 (Feb. 2, 2023). BILL: CS/SB 226 Page 15
and modern term to refer to a person having authority to act under a power of
attorney.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.