Florida 2024 2024 Regular Session

Florida Senate Bill S0446 Analysis / Analysis

Filed 01/08/2024

                    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 Judiciary  
 
BILL: SB 446 
INTRODUCER:  Senator Simon 
SUBJECT:  Supported Decisionmaking Authority 
DATE: January 8, 2024 
 
 ANALYST STAFF DIRECTOR  REFERENCE  	ACTION 
1. Collazo Cibula JU Pre-meeting 
2.     CF  
3.     RC  
 
I. Summary: 
SB 446 explicitly incorporates the concepts of supported decision-making (SDM) and SDM 
agreements into state law. SDM is a tool that allows people with disabilities to retain their 
decision-making capacity by choosing supporters to help them make choices, instead of relying 
upon court-appointed guardians or guardian advocates to make choices for them.  
 
In summary, the bill:  
 Amends the statute governing the appointment of guardian advocates for persons with 
developmental disabilities to require:  
o Courts to consider the specific needs and abilities of individuals when delegating 
decision-making tasks. 
o Petitions and court orders to identify and assess the sufficiency of guardian advocacy 
alternatives like SDM. 
 Amends the powers of attorney statute to authorize the granting of SDM agreements as a 
form of a power of attorney.  
 Creates a statute defining, authorizing, and regulating SDM agreements.   
 Amends statutes governing adjudications of incapacity and the appointment of guardians to: 
o Require petitions to state whether alleged incapacitated persons use assistance, including 
SDM, and if so, why it is insufficient for them to exercise their rights. 
o Authorize examining committee members to facilitate, when requested by appointed 
counsel, communication between supporters and allegedly incapacitated persons. 
o Clarify that suggestions of capacity must address whether the ward has the ability to 
exercise removed rights on his or her own or with appropriate assistance. 
 Amends the statute regulating the development of an individual education plan (IEP) for the 
purpose of accommodating students with disabilities in public schools, to include SDM 
agreements as one method by which students may provide informed consent to allow his or 
her parents to continue to participate in educational decisions. 
 
REVISED:   BILL: SB 446   	Page 2 
 
II. Present Situation: 
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 
rule that this person is incapacitated.
1
 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.
2
 
 
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.
3
  
 
Guardianships must be specific to the abilities and needs of the individual and should not be any 
more restrictive than necessary.
4
 Consequently, there are different types of guardianships under 
state law. They include:
5
 
 Preneed guardian.
6
 
 Voluntary guardianship.
7
 
 Emergency temporary guardianship.
8
 
 Limited guardianship.
9
 
 Guardian advocate for individuals who have a developmental disability.
10
 
 Guardian advocate for individuals receiving mental health treatment.
11
  
 Full (i.e. plenary) guardianship.
12
 
 
The powers and duties of a court-appointed guardian include, but are not limited to: 
 Filing an initial plan and annual reports.
13
  
 Making provision for the medical, mental, rehabilitative, and personal care of the person.
14
 
 Making residential decisions on behalf of the person.
15
 
                                                
1
 See generally Part V, Ch. 744, F.S. 
2
 See id. 
3
 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 Dec. 22, 2023). 
4
 Section 744.1012(2), F.S.; see also Disability Rights Florida, Types of Guardianship, available at https://disabilityrights 
florida.org/disability-topics/disability_topic_info/types_of_guardianship (last visited Dec. 22, 2023). 
5
 See generally Disability Rights Florida, Types of Guardianship, available at https://disabilityrightsflorida.org/disability-
topics/disability_topic_info/types_of_guardianship (last visited Dec. 22, 2023). 
6
 Sections 744.3045 and 744.3046, F.S. 
7
 Section 744.341, F.S. 
8
 Section 744.3031, F.S. 
9
 Section 744.441, F.S.; see also s. 744.102(9)(a), F.S. (defining “limited guardian”). 
10
 Sections 744.3085 and 393.12, F.S. 
11
 Sections 744.3085 and 394.4598, F.S. 
12
 Section 744.441(1), F.S.; see also s. 744.102(9)(b), F.S. (defining “plenary guardian”). 
13
 Section 744.361(6)-(7), F.S. 
14
 Section 744.361(13)(f), F.S. 
15
 Section 744.361(13)(h), F.S.  BILL: SB 446   	Page 3 
 
 Advocating on behalf of the person in institutional and other residential settings.
16
  
 Making financial decisions on behalf of the person.
17
  
 
Any resident of the state who is 18 years old and of sound mind is qualified to act as a 
guardian.
18
 Additionally, a non-resident may serve if he or she is related to the person with a 
developmental disability by blood, adoption, or law.
19
 Certain individuals, however, cannot be 
appointed to act as a guardian.
20
  
 
Guardians must file an initial guardianship report with the court within 60 days after 
appointment.
21
 The initial guardianship report must consist of an initial guardianship plan,
22
 
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.
23
 
 
Guardians must also file an annual guardianship report with the court.
24
 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
25
 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.
26
 
 
Incapacity 
The term “incapacitated person” means a person who has been judicially determined to lack the 
capacity to manage at least some of the property or to meet at least some of the essential health 
and safety requirements of the person.
27
  
 
The process to determine incapacity and appoint a guardian begins with the filing of a petition in 
the appropriate circuit court. The petition must be served on, and read to, the alleged 
incapacitated person. Notice and copies of the petition must also be provided to the attorney for 
the alleged incapacitated person and served on all next of kin identified in the petition.
28
 
 
                                                
16
 Section 744.361(13)(i), F.S. 
17
 Section 744.361(12), F.S. 
18
 Section 744.309(1), F.S. 
19
 Section 744.309(2), F.S. 
20
 See generally ss. 744.309(3), (6), F.S. 
21
 Sections 744.361(6) and 744.362(1), F.S.  
22
 Section 744.362(1), F.S. 
23
 See s. 744.363(1)(a)-(f), F.S. 
24
 Section 744.367(1), F.S. 
25
 Section 744.367(3)(a), F.S. 
26
 See generally s. 744.3675, F.S. 
27
 Section 744.102(12), F.S. 
28
 Section 744.331(1), F.S.  BILL: SB 446   	Page 4 
 
At hearing, the partial or total incapacity of the person must be established by clear and 
convincing evidence.
29
 After finding that a person is incapacitated with respect to the potential 
exercise of one or more rights, the court must enter a written order of incapacity. A person is 
deemed incapacitated only as to those rights specified in the court’s order.
30
 If the order provides 
that the person is incapable of exercising delegable rights (described below), the court must next 
consider whether there are any alternatives to guardianship which will sufficiently address the 
incapacitated person’s problems. If not, a guardian will be appointed.
31
 
 
Rights of Incapacitated Persons 
A person who has been determined to be incapacitated retains certain rights, regardless of the 
determination of incapacity, including (among others) the right to be treated humanely and with 
dignity and respect; the right to be protected against abuse, neglect, and exploitation; the right to 
receive visitors and communicate with others; and the right to privacy.
32
 
 
Certain rights may be removed from a person by an order determining incapacity, but not 
delegated to a guardian. They include the right to marry (if the right to enter into a contract has 
been removed, the right to marry is subject to court approval); the right to vote; the right to 
personally apply for government benefits; the right to have a driver license; the right to travel; 
and the right to seek or retain employment.
33
 
 
Additionally, certain other “delegable” rights may be removed from a person by an order 
determining incapacity, and also delegated to a guardian. They include the rights to: 
 Contract. 
 Sue and defend lawsuits. 
 Apply for government benefits. 
 Manage property or to make any gift or disposition of property. 
 Determine his or her residence. 
 Make health care decisions. 
 Make decisions about his or her social environment or other social aspects of his or her life.
34
 
 
Advance Directives 
State law defines an advance directive as 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.
35
 Designation of each 
of these can serve different purposes and have their own unique requirements and specifications 
under the law.
36
 
 
                                                
29
 Section 744.331(5)(c), F.S. 
30
 Section 744.331(6), F.S. 
31
 Section 744.331(6)(b), F.S. 
32
 See s. 744.3215(1)(a)-(o), F.S. (specifying all retained rights). 
33
 Section 744.3215(2)(a)-(f), F.S. 
34
 Section 744.3215(3)(a)-(g), F.S. 
35
 Section 765.101(1), F.S. 
36
 See id.  BILL: SB 446   	Page 5 
 
One type of advance directive, an “order not to resuscitate” or a “do not resuscitate order,” 
results in the withholding of cardiopulmonary resuscitation from an individual if the order is 
presented to the health care professional treating the patient.
37
 For the order to be valid, it must 
be on the yellow form adopted by the Department of Health, signed by the patient’s physician 
and by the patient, or if the patient is incapacitated, the patient’s health care surrogate or proxy, 
court-appointed guardian, or agent under a durable power of attorney.
38
  
 
A power of attorney is a writing that grants authority to an agent to act in the place of the 
principal.
39
 A “durable” power of attorney is a kind of power of attorney that is not terminated by 
the principal’s incapacity.
40
 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.
41
 
 
Guardian Advocates  
A “guardian advocate” is a person appointed by a written order of the court to represent a person 
with developmental disabilities.
42
 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.
43
 
 
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  
 The person has voluntarily petitioned for the appointment of a guardian advocate.
44
  
 
State law recognizes the appointment of a guardian advocate as a less restrictive alternative to 
guardianship.
45
 A guardian advocate can be appointed without having to declare the person with 
a developmental disability incapacitated.
46
 The process of becoming a guardian advocate of a 
person with a developmental disability does not require the hiring of an attorney, although during 
                                                
37
 See Fla. Admin. Code R. 64J-2.018(1). 
38
 Section 401.45(3), F.S.; see also Fla. Admin. Code R. 64J-2.018(1)-(3). 
39
 Section 709.2102(9), F.S. 
40
 Section 709.2102(4), F.S.; see also s. 709.2104 (specifying that a power of attorney is durable if it contains the words: 
“This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 
709, Florida Statutes,” or similar words that show the principal’s intent that the authority conferred is exercisable 
notwithstanding the principal’s subsequent incapacity). 
41
 See id.; see also 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 Dec. 22, 2023). 
42
 Sections 393.063(20), F.S.; see also s. 393.12, F.S. (regulating the appointment of guardian advocates for persons with 
developmental disabilities). 
43
 Section 393.063(11), F.S. 
44
 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 Dec. 22, 2023). 
45
 Section 744.3085, F.S. 
46
 Section 393.12(2)(a), F.S.  BILL: SB 446   	Page 6 
 
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.
47
 
 
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. Additionally, the person petitioning to become a 
plenary guardian must have an attorney.
48
 
 
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.
49
  
 
The qualifications to serve as a guardian advocate are the same as those required of any guardian 
under the guardianship statute.
50
 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.
51
 
A guardian advocate need not be the caregiver of the person with a disability.
52
 
 
Supported Decision-making 
Generally 
Supported decision-making (SDM) is a tool that allows people with disabilities to retain their 
decision-making capacity by choosing supporters to help them make choices.
53
 SDM assumes 
that people commonly seek advice and guidance with respect to decision-making and, so long as 
people have the ability to communicate, they should also have the ability and right to make 
choices, and to have those choices honored by third parties.
54
 
 
A person using SDM selects trusted advisors, such as friends, family members, or professionals, 
to serve as supporters. The supporters then agree to help the person with a disability understand, 
                                                
47
 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 Dec. 22, 2023). 
48
 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 Dec. 
22, 2023). 
49
 Section 393.12(10), F.S.  
50
 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 Dec. 22, 2023). 
51
 Id. 
52
 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 Dec. 
22, 2023). 
53
 American Civil Liberties Union, Supported Decision-Making: Frequently Asked Questions, available at https://www.aclu. 
org/wp-content/uploads/legal-documents/faq_about_supported_decision_making.pdf (last visited Dec. 22, 2023). 
54
 Blanck, P., and Martinis, J., The Right to Make Choices: The National Resource Center for Supported Decisionmaking, 3 
INCLUSION 24 (2015), available at www.bbi.syr.edu/publications/2015/SDM_Overview.pdf.   BILL: SB 446   	Page 7 
 
consider, and communicate decisions, giving the person with a disability the tools to make his or 
her own informed decisions.
55
 For example, supporters can help a person using SDM by: 
 Collecting and communicating information that is related to the decision. 
 Helping to understand a problem and explore options. 
 Explaining the risks and benefits of options. 
 Giving guidance and recommendations. 
 Assisting in communicating and carrying out decisions.
56
 
 
Although there is a structure and a process to SDM, it is also flexible and can be adapted to meet 
an individual’s situation and needs. While SDM can vary from place to place and from 
individual to individual, it generally follows a four-step process:
57
 
 The individual identifies the areas where he or she needs decision-making assistance – e.g. 
health care, employment, relationships, finances, etc. – and the type of support he or she 
needs. 
 The individual chooses supporters he or she trusts. 
 Supporters commit to providing information to the individual so that he or she can make his 
or her own decisions, and honoring the individual’s decisions. 
 The individual and supporters execute an SDM agreement.
58
 
 
SDM Agreements 
An SDM agreement is a written document evidencing an agreement between a disabled person 
and at least one supporter that describes, in detail, the type of help the person needs. The 
agreement outlines the terms and conditions of both parties and asks that third parties, including 
courts, recognize and respect the agreement. In an SDM agreement, those who can help in 
making decisions are called supporters; supporters agree to help explain information, answer 
questions, weigh options, and let others know about the decisions that are made. The supporter 
does not make the decisions. Although signed writings are not necessarily required, SDM 
agreements can be beneficial in helping doctors, bankers, lawyers, and other third parties to feel 
confident in accepting the decisions of people with disabilities without fearing lawsuits or 
malpractice claims.
59
 
 
                                                
55
 Disability Rights Florida, What is Supported Decision-Making?, https://disabilityrightsflorida.org/disability-topics/ 
disability_topic_info/what_is_supported_decision_making (last visited Dec. 22, 2023). 
56
 Id. 
57
 Center for Public Representation, About Supported Decision-Making: Does Supported Decision-Making work?, 
https://supporteddecisions.org/about-supported-decision-making/ (last visited Dec. 22, 2023). 
58
 Id.  
59
 Disability Rights Florida, What is Supported Decision-Making?, https://disabilityrightsflorida.org/disability-topics/ 
disability_topic_info/what_is_supported_decision_making (last visited Dec. 22, 2023); American Civil Liberties Union, 
Supported Decision-Making: Frequently Asked Questions, available at https://www.aclu.org/wp-content/uploads/legal-
documents/faq_about_supported_decision_making.pdf (last visited Dec. 22, 2023); see also National Resource Center for 
Supported Decision-Making, Supported Decision-Making Model Agreements, https://supporteddecisionmaking. 
org/resource_library/sdm-model-agreements/ (last visited Dec. 22, 2023) (providing model agreements from various 
jurisdictions).  BILL: SB 446   	Page 8 
 
State Legislation 
SDM is gaining support at both state and federal levels of government. As of June 2023, 27 
states and the District of Columbia have adopted some kind of SDM legislation.
60
 SDM has also 
been recognized and endorsed by the Administration for Community Living of the U.S. 
Department of Health and Human Services, which funds the National Resource Center for 
Supported Decision-Making,
61
 and has gained international recognition, notably in the United 
Nations Convention on Rights of Persons with Disabilities.
62
 
III. Effect of Proposed Changes: 
Although existing law already allows SDM,
63
 it neither specifically regulates SDM agreements, 
nor expressly requires consideration of SDM in connection with the appointment of a guardian or 
guardian advocate. Accordingly, the bill amends several statutes, and also creates a new statute, 
in order to explicitly require consideration of SDM and SDM agreements as less restrictive 
alternatives to appointing a guardian or guardian advocate. 
 
Considering SDM in Connection with the Appointment of Guardian Advocates  
Section 1 of the bill amends the developmental disabilities statute
64
 in connection with the 
appointment of guardian advocates. 
 
When determining whether to appoint a guardian advocate, the bill amends the statute to require 
circuit courts to:  
 Consider the person’s unique needs and abilities, including, but not limited to, the person’s 
ability to independently exercise his or her rights with appropriate assistance. 
 Only delegate decision-making tasks that the person lacks the decision-making ability to 
exercise. 
 
With respect to petitions to appoint a guardian advocate for persons with developmental 
disabilities, the bill amends the statute to require petitions to: 
 Identify any other type of guardian advocacy or alternatives to guardian advocacy that the 
person has designated, is in currently, or has been in previously and the reasons why 
alternatives to guardian advocacy are insufficient to meet the needs of the person. 
                                                
60
 American Bar Association, Supported Decision-Making: A Statutory Chart, Jun. 2023, available at https://www.american 
bar.org/content/dam/aba/administrative/law_aging/2022-sdm-lst-rstctd-altntvs.pdf (identifying the 27 states as Alabama, 
Alaska, Arkansas, Arizona, California, Colorado, Delaware, Illinois, Indiana, Kansas, Louisiana, Maine, Maryland, 
Minnesota, Montana, Nevada, New Hampshire, North Dakota, Oklahoma, Rhode Island, Tennessee, Texas, Virginia, 
Washington, West Virginia, Wisconsin, and Wyoming).  
61
 The National Resource Center for Supported Decision-Making provides many resources on SDM including, among other 
things, tools, state-level information, and newsletters and webinars. See generally National Resource Center for Supported 
Decision-Making, Home, https://supporteddecisionmaking.org/ (last visited Dec. 22, 2023).  
62
 American Bar Association, Less Restrictive Options, Nov. 21, 2023, https://www.americanbar.org/groups/law_aging/ 
resources/guardianship_law_practice/supported-decision-making/.  
63
 See, e.g., s. 765.523(1)(a), F.S. (identifying SDM services as one of several “auxiliary aids and services” for purposes of 
ensuring access to anatomical gifts and organ transplants). 
64
 Section 393.12, F.S.  BILL: SB 446   	Page 9 
 
 State whether the person uses assistance to exercise his or her rights, including, but not 
limited to, SDM, and if so, why the assistance is inappropriate or insufficient to allow the 
person to independently exercise the person’s rights. 
 
The bill also amends the statute to require court orders appointing a guardian advocate to identify 
existing alternatives, and to include a finding as to the validity or sufficiency of such alternatives, 
to alleviate the need for the appointment of a guardian advocate. 
 
Authorization and Regulation of SDM Agreements 
Section 2 of the bill amends the powers of attorney statute
65
 to include explicit authority to grant 
an SDM agreement as defined under the bill, if such authority is specifically limited.  
 
Section 3 of the bill creates s. 709.2209, F.S., entitled “Supported decisionmaking agreements,” 
to authorize and regulate SDM agreements. Specifically, the new statute: 
 Defines the term “supported decisiomaking agreement” to mean an agreement in which the 
power of attorney grants an agent the authority to receive information and to communicate on 
behalf of the principal without granting the agent the authority to bind or act on behalf of the 
principal on any subject matter. 
 Provides that an SDM agreement is not a durable power of attorney under state law, and that 
any language of durability in an SDM agreement is of no effect. 
 Provides that an SDM agreement may only include the authority to: 
o Obtain information on behalf of the principal, including, but not limited to, protected 
health information under the Health Insurance Portability and Accountability Act of 
1996, as amended;
66
 educational records under the Family Educational Rights and 
Privacy Act of 1974;
67
 or information protected under certain provisions of federal law.
68
  
o Assist the principal in communicating with third parties, including conveying the 
principal’s communications, decisions, and directions to third parties on behalf of the 
principal. 
 Provides that a communication made by the principal with the assistance of or through an 
agent under an SDM agreement that is within the authority granted to the agent may be 
recognized as a communication of the principal. 
 
Considering SDM in Connection with the Adjudication of Incapacity and Appointment of 
Guardians 
Section 4 of the bill amends s. 744.3201, F.S., which identifies the information that must be 
included in a petition to determine incapacity, to require the petition to state whether the alleged 
incapacitated person uses assistance to exercise his or her rights, including, but not limited to, 
SDM, and if so, why the assistance is inappropriate or insufficient to allow the person to 
independently exercise the person’s rights. 
 
                                                
65
 Section 709.2201, F.S. 
66
 42 U.S.C. s. 1320d. 
67
 20 U.S.C. s. 1232g. 
68
 42 U.S.C. s. 290dd-2; 42 C.F.R. pt. 2.  BILL: SB 446   	Page 10 
 
Section 5 of the bill amends s. 744.331, F.S., which identifies the procedures to determine 
incapacity, to provide that an examining committee member may allow a person to assist in 
communicating with the alleged incapacitated person when requested by the court-appointed 
counsel for the alleged incapacitated person. The examining committee member must identify 
the person who provided assistance and describe the nature and method of assistance provided in 
his or her report. 
 
Section 6 of the bill amends s. 744.464, F.S., which addresses how a ward may be restored from 
an adjudication of incapacity to capacity, to clarify that a suggestion of capacity must state that 
the ward is currently capable of exercising some or all of the rights which were removed, 
including the capability to independently exercise his or her rights with appropriate assistance. 
 
Considering SDM in Connection with Accommodating Students with Disabilities in Public 
Schools 
Section 7 of the bill amends s. 1003.5716, F.S., which regulates the development of an 
individual education plan for the purpose of accommodating students with disabilities in public 
schools, to include SDM agreements as one method by which students may provide informed 
consent to allow his or her parents to continue to participate in educational decisions.  
 
Effective Date 
Section 8 of the bill provides that it takes effect on July 1, 2024. 
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.  BILL: SB 446   	Page 11 
 
V. Fiscal Impact Statement: 
A. Tax/Fee Issues: 
None. 
B. Private Sector Impact: 
Supported decision-making agreements will result in fewer expenditures relating to 
guardianships and guardian advocates to the extent that the SDM agreements substitute 
for the more costly arrangements.   
C. Government Sector Impact: 
The bill will reduce costs to the court system for guardianship and guardian advocate 
proceedings to the extent that those proceedings are replaced by supported decision-
making agreements. 
VI. Technical Deficiencies: 
None. 
VII. Related Issues: 
None. 
VIII. Statutes Affected: 
This bill substantially amends the following sections of the Florida Statutes: 393.12, 709.2201, 
744.3201, 744.331, 744.464, and 1003.5716. 
 
This bill creates section 709.2209 of the Florida Statutes. 
IX. Additional Information: 
A. Committee Substitute – Statement of Changes: 
(Summarizing differences between the Committee Substitute and the prior version of the bill.) 
None. 
B. Amendments: 
None. 
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.