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An act relating to supported decisionmaking authority; 2
amending s. 393.12, F.S.; requiring a circuit court to 3
consider certain needs and abilities of a person with 4
a developmental disability when determining whether to 5
appoint a guardian advocate; providing requirements 6
for a petition to appoint a guardian advocate for a 7
person with a developmental disability and for a court 8
order if the court finds that such person requires 9
such appointment; amending s. 709.2201, F.S.; 10
authorizing an agent acting for a principal to grant a 11
supported decisionmaking agreement; creating s. 12
709.2209, F.S.; defining the term "supported 13
decisionmaking agreement"; prohibiting such agreement 14
from acting as a durable power of attorney; 15
authorizing specified authority to a supported 16
decisionmaking agreement; providing that certain 17
communications shall be recognized as a communication 18
of the principal under certain circumstances; amending 19
s. 744.3201, F.S.; requiring a petition to determine 20
incapacity of a person to include specified 21
information relating to the alleged incapacitated 22
person's use of assistance; amending s. 744.331, F.S.; 23
providing requirements for an examining committee 24
member when determining the alleged incapacitated 25
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person's ability to exercise his or her rights; 26
amending s. 744.464, F.S.; authorizing a suggestion of 27
capacity to include certain capabilities of the ward; 28
amending s. 1003.5716, F.S.; revising the requirements 29
for a specified process relating to individual 30
education plans for certain students to include 31
supported decisionmaking agreements; providing an 32
effective date. 33
34
Be It Enacted by the Legislature of the State of Florida: 35
36
Section 1. Paragraph (a) of sub section (2), paragraph (a) 37
of subsection (3), and subsection (8) of section 393.12, Florida 38
Statutes, are amended to read: 39
393.12 Capacity; appointment of guardian advocate. — 40
(2) APPOINTMENT OF A GUARDIAN ADVOCATE. — 41
(a) A circuit court may appoint a guardian advocate, 42
without an adjudication of incapacity, for a person with 43
developmental disabilities, if the person lacks the 44
decisionmaking ability to do some, but not all, of the 45
decisionmaking tasks necessary to care for his or her person or 46
property or if the person has voluntarily petitioned for the 47
appointment of a guardian advocate. In determining whether to 48
appoint a guardian advocate, the court shall consider the 49
person's unique needs and abilities, including, but not limited 50
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to, the person's abi lity to independently exercise his or her 51
rights with appropriate assistance, and may only delegate 52
decisionmaking tasks that the person lacks the decisionmaking 53
ability to exercise. Except as otherwise specified, the 54
proceeding shall be governed by the Fl orida Rules of Probate 55
Procedure. 56
(3) PETITION.— 57
(a) A petition to appoint a guardian advocate for a person 58
with a developmental disability may be executed by an adult 59
person who is a resident of this state. The petition must be 60
verified and must: 61
1. State the name, age, and present address of the 62
petitioner and his or her relationship to the person with a 63
developmental disability; 64
2. State the name, age, county of residence, and present 65
address of the person with a developmental disability; 66
3. Allege that the petitioner believes that the person 67
needs a guardian advocate and specify the factual information on 68
which such belief is based; 69
4. Specify the exact areas in which the person lacks the 70
decisionmaking ability to make informed decisions abou t his or 71
her care and treatment services or to meet the essential 72
requirements for his or her physical health or safety; 73
5. Specify the legal disabilities to which the person is 74
subject; and 75
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6. Identify any other type of guardian advocacy or 76
alternatives to guardian advocacy that the person has 77
designated, is in currently, or has been in previously and the 78
reasons why alternatives to guardian advocacy are insufficient 79
to meet the needs of the person; 80
7. State whether the person uses assistance to exercise 81
his or her rights, including, but not limited to, supported 82
decisionmaking, and if so, why the assistance is inappropriate 83
or insufficient to allow the person to independently exercise 84
the person's rights; and 85
8.6. State the name of the proposed guardian advocate, the 86
relationship of that person to the person with a developmental 87
disability; the relationship that the proposed guardian advocate 88
had or has with a provider of health care services, resi dential 89
services, or other services to the person with a developmental 90
disability; and the reason why this person should be appointed. 91
The petition must also state if a willing and qualified guardian 92
advocate cannot be located. 93
(8) COURT ORDER.—If the court finds the person with a 94
developmental disability requires the appointment of a guardian 95
advocate, the court shall enter a written order appointing the 96
guardian advocate and containing the findings of facts and 97
conclusions of law on which the court made its decision, 98
including: 99
(a) The nature and scope of the person's lack of 100
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decisionmaking ability; 101
(b) The exact areas in which the individual lacks 102
decisionmaking ability to make informed decisions about care and 103
treatment services or to meet the esse ntial requirements for his 104
or her physical health and safety; 105
(c) The specific legal disabilities to which the person 106
with a developmental disability is subject; 107
(d) The identity of existing alternatives and a finding as 108
to the validity or sufficiency of such alternative to alleviate 109
the need for the appointment of a guardian advocate; 110
(e)(d) The name of the person selected as guardian 111
advocate and the reasons for the court's selection; and 112
(f)(e) The powers, duties, and responsibilities of the 113
guardian advocate, including bonding of the guardian advocate, 114
as provided in s. 744.351. 115
Section 2. Paragraph (d) is added to subsection (2) of 116
section 709.2201, Florida Statutes, to read: 117
709.2201 Authority of agent. — 118
(2) As a confirmation of the law in effect in this state 119
when this part became effective, such authorization may include, 120
without limitation, authority to: 121
(d) If such authority is specifically limited, grant a 122
supported decisionmaking agreement as defined in s. 709.2209(1). 123
Section 3. Section 709.2209, Florida Statutes, is created 124
to read: 125
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709.2209 Supported decisionmaking agreements. — 126
(1) For purposes of this section, "supported 127
decisionmaking agreement" means an agreement in which the power 128
of attorney grants an agent the aut hority to receive information 129
and to communicate on behalf of the principal without granting 130
the agent the authority to bind or act on behalf of the 131
principal on any subject matter. 132
(2) A supported decisionmaking agreement is not a durable 133
power of attorney under s. 709.2104. Any language of durability 134
in a supported decisionmaking agreement is of no effect. 135
(3) A supported decisionmaking agreement may only include 136
the authority to: 137
(a) Obtain information on behalf of the principal, 138
including, but not limited to, protected health information 139
under the Health Insurance Portability and Accountability Act of 140
1996, 42 U.S.C. s. 1320d, as amended; educational records under 141
the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. 142
s. 1232g; or informa tion protected under 42 U.S.C. s. 290dd -2 or 143
42 C.F.R. part 2. 144
(b) Assist the principal in communicating with third 145
parties, including conveying the principal's communications, 146
decisions, and directions to third parties on behalf of the 147
principal. 148
(4) A communication made by the principal with the 149
assistance of or through an agent under a supported 150
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decisionmaking agreement that is within the authority granted to 151
the agent may be recognized for as a communication of the 152
principal. 153
Section 4. Subsecti on (2) of section 744.3201, Florida 154
Statutes, is amended to read: 155
744.3201 Petition to determine incapacity. — 156
(2) The petition must be verified and must: 157
(a) State the name, age, and present address of the 158
petitioner and his or her relationship to th e alleged 159
incapacitated person; 160
(b) State the name, age, county of residence, and present 161
address of the alleged incapacitated person; 162
(c) Specify the primary language spoken by the alleged 163
incapacitated person, if known; 164
(d) State whether the allege d incapacitated person uses 165
assistance to exercise his or her rights, including, but not 166
limited to, supported decisionmaking, and if so, why the 167
assistance is inappropriate or insufficient to allow the person 168
to independently exercise the person's rights; 169
(e)(d) Allege that the petitioner believes the alleged 170
incapacitated person to be incapacitated and specify the factual 171
information on which such belief is based and the names and 172
addresses of all persons known to the petitioner who have 173
knowledge of such facts through personal observations; 174
(f)(e) State the name and address of the alleged 175
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incapacitated person's attending or family physician, if known; 176
(g)(f) State which rights enumerated in s. 744.3215 the 177
alleged incapacitated person is incapable of exercising, to the 178
best of petitioner's knowledge. If the petitioner has 179
insufficient experience to make such judgments, the petition 180
must so state; and 181
(h)(g) State the names, relationships, and addresses of 182
the next of kin of the alleged incapacitated person, so far as 183
are known, specifying the dates of birth of any who are minors. 184
Section 5. Paragraph (e) of subsection (3) of section 185
744.331, Florida Statutes, is amended to read: 186
744.331 Procedures to determine incapacity. — 187
(3) EXAMINING COMMITTEE. — 188
(e) Each member of the examining committee shall examine 189
the person. Each examining committee member must determine the 190
alleged incapacitated person's ability to exercise those rights 191
specified in s. 744.3215. An examining committee member may 192
allow a person to assist in communicating with the alleged 193
incapacitated person when requested by the court -appointed 194
counsel for the alleged incapacitated person and shall identify 195
the person who provided assistanc e and describe the nature and 196
method of assistance provided in his or her report. In addition 197
to the examination, each examining committee member must have 198
access to, and may consider, previous examinations of the 199
person, including, but not limited to, hab ilitation plans, 200
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school records, and psychological and psychosocial reports 201
voluntarily offered for use by the alleged incapacitated person. 202
Each member of the examining committee must file his or her 203
report with the clerk of the court within 15 days after 204
appointment. 205
Section 6. Paragraph (a) of subsection (2) of section 206
744.464, Florida Statutes, is amended to read: 207
744.464 Restoration to capacity. — 208
(2) SUGGESTION OF CAPACITY. — 209
(a) Any interested person, including the ward, may file a 210
suggestion of capacity. The suggestion of capacity must state 211
that the ward is currently capable of exercising some or all of 212
the rights which were removed , including the capability to 213
independently exercise his or her rights with appropriate 214
assistance. 215
Section 7. Paragraph (d) of subsection (1) of section 216
1003.5716, Florida Statutes, is amended to read: 217
1003.5716 Transition to postsecondary education and career 218
opportunities.—All students with disabilities who are 3 years of 219
age to 21 years of age have the ri ght to a free, appropriate 220
public education. As used in this section, the term "IEP" means 221
individual education plan. 222
(1) To ensure quality planning for a successful transition 223
of a student with a disability to postsecondary education and 224
career opportunities, during the student's seventh grade year or 225
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when the student attains the age of 12, whichever occurs first, 226
an IEP team shall begin the process of, and develop an IEP for, 227
identifying the need for transition services before the student 228
with a disability enters high school or attains the age of 14 229
years, whichever occurs first, in order for his or her 230
postsecondary goals and career goals to be identified. The plan 231
must be operational and in place to begin implementation on the 232
first day of the student' s first year in high school. This 233
process must include, but is not limited to: 234
(d) At least 1 year before the student reaches the age of 235
majority, provision of information and instruction to the 236
student and his or her parent on self -determination and the 237
legal rights and responsibilities regarding the educational 238
decisions that transfer to the student upon attaining the age of 239
18. The information must include the ways in which the student 240
may provide informed consent to allow his or her parent to 241
continue to participate in educational decisions, including: 242
1. Informed consent to grant permission to access 243
confidential records protected under the Family Educational 244
Rights and Privacy Act (FERPA) as provided in s. 1002.22. 245
2. Powers of attorney as provid ed in chapter 709. 246
3. Guardian advocacy as provided in s. 393.12. 247
4. Guardianship as provided in chapter 744. 248
5. Supported decisionmaking agreements as provided in s. 249
709.2209. 250
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The State Board of Education shall adopt rules to administer 252
this paragraph. 253
Section 8. This act shall take effect July 1, 2024. 254