Bill Text: FL S1772 | 2022 | Regular Session | Introduced
Bill Title: Supported Decisionmaking for Adults with Disabilities
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2022-03-14 - Died in Children, Families, and Elder Affairs [S1772 Detail]
Download: Florida-2022-S1772-Introduced.html
Florida Senate - 2022 SB 1772
By Senator Torres
15-01268-22 20221772__
1 A bill to be entitled
2 An act relating to supported decisionmaking for adults
3 with disabilities; amending s. 393.063, F.S.; defining
4 terms; amending s. 393.065, F.S.; revising a
5 requirement that the Agency for Persons with
6 Disabilities provide specified information to certain
7 persons to conform to changes made by the act;
8 amending s. 393.12, F.S.; revising the requirements
9 for petitions to appoint guardian advocates for
10 persons with developmental disabilities to conform to
11 changes made by the act; creating s. 393.121, F.S.;
12 authorizing adults with disabilities to enter into
13 supported decisionmaking agreements under certain
14 circumstances; prohibiting the use of such agreements
15 as evidence of incapacity; providing that such
16 agreements do not preclude a decisionmaker from acting
17 independently; providing criteria for supporters;
18 specifying actions supporters may be authorized to
19 take pursuant to a supported decisionmaking agreement;
20 requiring that a supporter act in good faith;
21 authorizing adults with disabilities who have
22 appointed guardian advocates to enter into supported
23 decisionmaking agreements under certain circumstances;
24 amending ss. 383.141 and 1002.394, F.S.; conforming
25 cross-references; providing an effective date.
26
27 Be It Enacted by the Legislature of the State of Florida:
28
29 Section 1. Present subsections (11) through (42) and (43),
30 (44), (45), and (46) of section 393.063, Florida Statutes, are
31 redesignated as subsections (12) through (43) and (46), (47),
32 (49), and (50), respectively, and new subsections (11), (44),
33 (45), and (48) are added to that section, to read:
34 393.063 Definitions.—For the purposes of this chapter, the
35 term:
36 (11) “Decisionmaker” means an adult with a disability who
37 has entered into a supported decisionmaking agreement with at
38 least one supporter.
39 (44) “Supported decisionmaking” means a process of
40 supporting an adult with a disability to assist him or her with
41 understanding the options, responsibilities, and consequences of
42 a life decision and enabling him or her to make a life decision
43 without impeding self-determination.
44 (45) “Supported decisionmaking agreement” means a written
45 agreement between a decisionmaker and at least one supporter.
46 (48) “Supporter” means a qualified adult who has entered
47 into a supported decisionmaking agreement under s. 393.121.
48 Section 2. Paragraph (a) of subsection (10) of section
49 393.065, Florida Statutes, is amended, and paragraphs (b) and
50 (c) of that subsection are republished, to read:
51 393.065 Application and eligibility determination.—
52 (10)(a) The agency shall provide the following information
53 to all applicants or their parents, legal guardians, or family
54 members:
55 1. A brief overview of the vocational rehabilitation
56 services offered through the Division of Vocational
57 Rehabilitation of the Department of Education, including a
58 hyperlink or website address that provides access to the
59 application for such services;
60 2. A brief overview of the Florida ABLE program as
61 established under s. 1009.986, including a hyperlink or website
62 address that provides access to the application for establishing
63 an ABLE account as defined in s. 1009.986(2);
64 3. A brief overview of the supplemental security income
65 benefits and social security disability income benefits
66 available under Title XVI of the Social Security Act, as
67 amended, including a hyperlink or website address that provides
68 access to the application for such benefits;
69 4. A statement indicating that the applicant’s local public
70 school district may provide specialized instructional services,
71 including transition programs, for students with special
72 education needs;
73 5. A brief overview of programs and services funded through
74 the Florida Center for Students with Unique Abilities, including
75 contact information for each state-approved Florida
76 Postsecondary Comprehensive Transition Program;
77 6. A brief overview of decisionmaking options for
78 individuals with disabilities, including supported
79 decisionmaking under s. 393.121, guardianship under chapter 744,
80 and alternatives to guardianship as defined in s. 744.334(1),
81 which may include contact information for organizations that the
82 agency believes would be helpful in assisting with such
83 decisions;
84 7. A brief overview of the referral tools made available
85 through the agency, including a hyperlink or website address
86 that provides access to such tools; and
87 8. A statement indicating that some waiver providers may
88 serve private-pay individuals.
89 (b) The agency must provide the information required in
90 paragraph (a) in writing to an applicant or his or her parent,
91 legal guardian, or family member along with a written disclosure
92 statement in substantially the following form:
93
94 DISCLOSURE STATEMENT
95
96 Each program and service has its own eligibility requirements.
97 By providing the information specified in section
98 393.065(10)(a), Florida Statutes, the agency does not guarantee
99 an applicant’s eligibility for or enrollment in any program or
100 service.
101 (c) The agency shall also publish the information required
102 in paragraph (a) and the disclosure statement in paragraph (b)
103 on its website, and shall provide that information and statement
104 annually to each applicant placed on the waiting list or to the
105 parent, legal guardian, or family member of such applicant.
106 Section 3. Subsection (3), paragraph (a) of subsection (4),
107 and subsection (7) of section 393.12, Florida Statutes, are
108 amended to read:
109 393.12 Capacity; appointment of guardian advocate.—
110 (3) PETITION.—A petition to appoint a guardian advocate for
111 a person with a developmental disability may be executed by an
112 adult person who is a resident of this state. The petition must
113 be verified and must:
114 (a) State the name, age, and present address of the
115 petitioner and his or her relationship to the person with a
116 developmental disability;
117 (b) State the name, age, county of residence, and present
118 address of the person with a developmental disability;
119 (c) Allege that the petitioner believes that the person
120 needs a guardian advocate and specify the factual information on
121 which such belief is based;
122 (d) State any effort to use decisionmaking options before
123 seeking a guardian advocate, including entering into a supported
124 decisionmaking agreement under s. 393.121, a durable power of
125 attorney under chapter 709, or an advance directive under
126 chapter 765. The statement must include all of the following
127 information:
128 1. Each guardianship alternative that was considered or
129 implemented.
130 2. If a guardianship alternative was not considered or
131 implemented, the reason why a guardianship alternative was not
132 considered or implemented.
133 3. Any reason why a guardianship alternative is
134 insufficient to meet the needs of the person with a
135 developmental disability;
136 (e) Specify the exact areas in which the person lacks the
137 decisionmaking ability to make informed decisions about his or
138 her care and treatment services or to meet the essential
139 requirements for his or her physical health or safety;
140 (f)(e) Specify the legal disabilities to which the person
141 is subject; and
142 (g)(f) State the name of the proposed guardian advocate,
143 the relationship of that person to the person with a
144 developmental disability; the relationship that the proposed
145 guardian advocate had or has with a provider of health care
146 services, residential services, or other services to the person
147 with a developmental disability; and the reason why this person
148 should be appointed. If a willing and qualified guardian
149 advocate cannot be located, the petition shall so state.
150 (4) NOTICE.—
151 (a) Notice of the filing of the petition must be given to
152 the person with a developmental disability, verbally and in
153 writing in the language of the person and in English. Notice
154 must also be given to the next of kin of the person with a
155 developmental disability under as defined in chapter 744, a
156 health care surrogate designated under pursuant to an advance
157 directive under chapter 765, an agent under a durable power of
158 attorney, a supporter who has entered into a supported
159 decisionmaking agreement under s. 393.121, and such other
160 persons as the court may direct. A copy of the petition to
161 appoint a guardian advocate must be served with the notice.
162 (7) ADVANCE DIRECTIVES FOR HEALTH CARE, AND DURABLE POWER
163 OF ATTORNEY, AND SUPPORTED DECISIONMAKING AGREEMENTS.—In each
164 proceeding in which a guardian advocate is appointed under this
165 section, the court shall determine whether the person with a
166 developmental disability has executed any valid advance
167 directive under chapter 765, or a durable power of attorney
168 under chapter 709, or a supported decisionmaking agreement under
169 s. 393.121.
170 (a) If the person with a developmental disability has
171 executed an advance directive, a or durable power of attorney,
172 or a supported decisionmaking agreement, the court must consider
173 and find whether the documents will sufficiently address the
174 needs of the person with a developmental disability for whom the
175 guardian advocate is sought. A guardian advocate may not be
176 appointed if the court finds that the advance directive, or
177 durable power of attorney, or supported decisionmaking agreement
178 provides an alternative to the appointment of a guardian
179 advocate which will sufficiently address the needs of the person
180 with a developmental disability.
181 (b) If an interested person seeks to contest an advance
182 directive, a or durable power of attorney, or a supported
183 decisionmaking agreement executed by a person with a
184 developmental disability, the interested person must shall file
185 a verified statement. The verified statement must shall include
186 the factual basis for the belief that the advance directive, or
187 durable power of attorney, or supported decisionmaking agreement
188 is invalid or does not sufficiently address the needs of the
189 person for whom a guardian advocate is sought or that the person
190 with authority under the advance directive, or durable power of
191 attorney, or supported decisionmaking agreement is abusing his
192 or her power.
193 (c) If an advance directive exists, the court must shall
194 specify in its order and letters of guardian advocacy what
195 authority, if any, the guardian advocate shall exercise over the
196 person’s health care surrogate. Pursuant to the grounds listed
197 in s. 765.105, the court, upon its own motion, may, with notice
198 to the health care surrogate and any other appropriate parties,
199 modify or revoke the authority of the health care surrogate to
200 make health care decisions for the person with a developmental
201 disability. For purposes of this section, the term “health care
202 decision” has the same meaning as in s. 765.101.
203 (d) If any durable power of attorney exists, the court must
204 shall specify in its order and letters of guardian advocacy what
205 powers of the agent, if any, are suspended and granted to the
206 guardian advocate. The court, however, may not suspend any
207 powers of the agent unless the court determines the durable
208 power of attorney is invalid or there is an abuse by the agent
209 of the powers granted.
210 (e) If a supported decisionmaking agreement exists, the
211 court must specify in its order and letters of guardian advocacy
212 the part of the agreement which is suspended.
213 Section 4. Section 393.121, Florida Statutes, is created to
214 read:
215 393.121 Supported decisionmaking.—
216 (1) An adult with a disability may enter into a supported
217 decisionmaking agreement if he or she:
218 (a) Voluntarily enters into the agreement without coercion
219 or undue influence; and
220 (b) Understands the nature and effect of the agreement.
221 (2) The existence of a supported decisionmaking agreement
222 may not be used as evidence of incapacity and does not preclude
223 the decisionmaker from acting independently.
224 (3) A supporter must be an adult and, unless he or she is
225 an immediate family member of the decisionmaker, may not be:
226 (a) An employer or employee of the decisionmaker;
227 (b) A health care provider of the decisionmaker;
228 (c) A creditor or debtor of the decisionmaker;
229 (d) An employee or a contractor of a state agency who
230 provides services directly to the decisionmaker;
231 (e) A person who provides paid support services, excluding
232 decisionmaking assistance, directly to the decisionmaker;
233 (f) A landlord, nursing home, assisted living facility, or
234 an employee of a landlord, nursing home, or assisted living
235 facility of the decisionmaker; or
236 (g) A person against whom a protective order or restraining
237 order has been entered by a court at the request of or on behalf
238 of the decisionmaker.
239 (4) An adult with a disability may voluntarily, without
240 undue influence or coercion, enter into a supported
241 decisionmaking agreement that authorizes a supporter to:
242 (a) Assist the decisionmaker in understanding the options,
243 responsibilities, and consequences of life decisions;
244 (b) Assist the decisionmaker in accessing, collecting, and
245 obtaining information and records relevant to a life decision,
246 including, but not limited to, medical, psychological,
247 financial, educational, or treatment records, to which the
248 decisionmaker is entitled, from any person or entity. Such
249 information and records must include, but need not be limited
250 to, protected health information under the Health Insurance
251 Portability and Accountability Act of 1996, 42 U.S.C. s. 1320d;
252 educational records under the Family Educational Rights and
253 Privacy Act of 1974, 20 U.S.C. s. 1232g; information available
254 under the Individuals with Disabilities Education Act, 20 U.S.C.
255 ss. 1400, et seq.; or records of the identity, diagnosis,
256 prognosis, or treatment of a patient maintained in connection
257 with the performance of any program or activity relating to
258 substance abuse, education, prevention, training, treatment,
259 rehabilitation, or research which are protected by 42 U.S.C. s.
260 290dd-2 and 42 C.F.R. part II;
261 (c) Assist the decisionmaker in communicating his or her
262 decisions; or
263 (d) Access the decisionmaker’s personal information, to the
264 extent authorized by the supported decisionmaking agreement.
265 (5) A supporter shall act in good faith in all actions
266 taken under the supported decisionmaking agreement.
267 (6) An adult with a disability who has a guardian advocate
268 may enter into a supported decisionmaking agreement if the
269 guardian advocate grants written approval to do so. The adult
270 with a disability does not need approval from the guardian
271 advocate if the supported decisionmaking agreement only affects
272 rights that were not removed by the court.
273 Section 5. Paragraph (b) of subsection (1) of section
274 383.141, Florida Statutes, is amended to read:
275 383.141 Prenatally diagnosed conditions; patient to be
276 provided information; definitions; information clearinghouse;
277 advisory council.—
278 (1) As used in this section, the term:
279 (b) “Developmental disability” includes Down syndrome and
280 other developmental disabilities defined by s. 393.063 s.
281 393.063(12).
282 Section 6. Paragraph (d) of subsection (2) of section
283 1002.394, Florida Statutes, is amended to read:
284 1002.394 The Family Empowerment Scholarship Program.—
285 (2) DEFINITIONS.—As used in this section, the term:
286 (d) “Disability” means, for a 3- or 4-year-old child or for
287 a student in kindergarten to grade 12, autism spectrum disorder,
288 as defined in the Diagnostic and Statistical Manual of Mental
289 Disorders, Fifth Edition, published by the American Psychiatric
290 Association; cerebral palsy, as defined in s. 393.063; Down
291 syndrome, as defined in s. 393.063; an intellectual disability,
292 as defined in s. 393.063; a speech impairment; a language
293 impairment; an orthopedic impairment; another an other health
294 impairment; an emotional or a behavioral disability; a specific
295 learning disability, including, but not limited to, dyslexia,
296 dyscalculia, or developmental aphasia; Phelan-McDermid syndrome,
297 as defined in s. 393.063; Prader-Willi syndrome, as defined in
298 s. 393.063; spina bifida, as defined in s. 393.063; being a
299 high-risk child, as defined in s. 393.063(24)(a) s.
300 393.063(23)(a); muscular dystrophy; Williams syndrome; rare
301 diseases which affect patient populations of fewer than 200,000
302 individuals in the United States, as defined by the National
303 Organization for Rare Disorders; anaphylaxis; a hearing
304 impairment, including deafness; a visual impairment, including
305 blindness; traumatic brain injury; hospital or homebound; or
306 identification as dual sensory impaired, as defined by rules of
307 the State Board of Education and evidenced by reports from local
308 school districts. The term “hospital or homebound” includes a
309 student who has a medically diagnosed physical or psychiatric
310 condition or illness, as defined by the state board in rule, and
311 who is confined to the home or hospital for more than 6 months.
312 Section 7. This act shall take effect July 1, 2022.
