Senate Bill 1098 (2023) — Withholding or withdrawal of life-2 prolonging procedures
SB 1098
Florida Bills
Florida Senate - 2023 SB 1098 By Senator Burton 12-00451B-23 20231098__ Page 1 of 11 CODING: Words stricken are deletions; words underlined are additions. A bill to be entitled 1
An act relating to withholding or withdrawal of life-2 prolonging procedures; amending s. 744.3215, F.S.; 3 authorizing the court to delegate the right to consent 4 to the withholding or withdrawal of life-prolonging 5 procedures of incapacitated persons in certain 6 circumstances; amending ss. 744.363 and 744.3675, 7 F.S.; making technical changes; requiring initial and 8 annual guardianship plans, respectively, to state 9 whether any power under the ward’s preexisting order 10 not to resuscitate or advance directive is revoked, 11 modified, suspended, or transferred to the guardian; 12 requiring such plans to state the date of such action; 13 establishing certain authority without additional 14 court approval; requiring a guardian to obtain court 15 approval to exercise transferred power to execute an 16 order not to resuscitate or consent to withhold or 17 withdraw life-prolonging procedures under certain 18 circumstances; creating s. 744.4431, F.S.; authorizing 19 a guardian to petition a court for approval to consent 20 to withhold or withdraw life-prolonging procedures 21 under certain circumstances; specifying requirements 22 for the petition; requiring the guardian to serve 23 certain notices; specifying procedures that must be 24 followed by the court in acting on the petition; 25 authorizing the guardian to withhold or withdraw life-26 prolonging procedures without a hearing or court 27 approval under certain circumstances; amending s. 28 744.441, F.S.; making technical changes; deleting 29
Florida Senate - 2023 SB 1098 12-00451B-23 20231098__ Page 2 of 11 CODING: Words stricken are deletions; words underlined are additions. provisions regarding the authority of certain 30 guardians to sign an order not to resuscitate; 31 providing an effective date. 32 33 Be It Enacted by the Legislature of the State of Florida: 34 35
Section 1. Paragraph (
h) is added to subsection (3) of 36
section 744.3215, Florida Statutes, to read: 37 744.3215 Rights of persons determined incapacitated.— 38
(3) Rights that may be removed from a person by an order 39 determining incapacity and which may be delegated to the 40 guardian include the right: 41 (
h) To consent to the withholding or withdrawal of life-42 prolonging procedures as defined in s. 765.101, subject to court 43 approval as provided in s. 744.4431 if there is a conflict over 44 or objection to the proposed exercise of that authority. 45
Section 2. Present subsections (2) through (6) of
section 46 744.363, Florida Statutes, are redesignated as subsections (3) 47 through (7), respectively, paragraph (
g) is added to subsection 48 (1) and a new subsection (2) is added to that section, and 49 paragraph (
f) of subsection (1) of that
section is amended, to 50 read: 51 744.363 Initial guardianship plan.— 52
(1) The initial guardianship plan shall include all of the 53 following: 54 (f)1. A list of any preexisting: 55 a. Orders not to resuscitate as described in executed under 56 s. 401.45(3) and the date such orders were signed; or 57 b. Preexisting Advance directives, as defined in s. 765.101 58
Florida Senate - 2023 SB 1098 12-00451B-23 20231098__ Page 3 of 11 CODING: Words stricken are deletions; words underlined are additions. and, the date such directives were signed. an order or directive 59 was signed, 60 2. For each item listed under subparagraph 1., the plan 61 must state whether the such order or directive has been revoked, 62 modified, or suspended by the court or the extent to which 63 authority under an order or directive has been transferred by 64 the court to the guardian.
The plan must also state the date of 65 such action by the court. 66 (g) , and A description of the steps taken to identify and 67 locate a the preexisting order not to resuscitate or advance 68 directive. 69
(2) A surrogate designated by the ward in an advance 70 directive or an agent designated by the ward in a durable power 71 of attorney who retains authority to make health care decisions 72 under the guardianship plan may exercise retained authority 73 without additional approval by the court.
Any authority of the 74 surrogate to carry out the instructions in the advance directive 75 or authority of the agent under a durable power of attorney 76 which is transferred to the guardian may be exercised by the 77 guardian, consistent with the advance directive or durable power 78 of attorney, without additional approval by the court.
Any 79 authority transferred to the guardian to execute an order not to 80 resuscitate or to consent to withhold or withdraw life-81 prolonging procedures is subject to court approval pursuant to 82 s. 744.441 if there is a conflict over or objection to a 83 proposed exercise of that authority. 84
Section 3. Present subsections (2), (3), and (4) of
section 85 744.3675, Florida Statutes, are redesignated as subsections (3), 86 (4), and (5), respectively, paragraph (
e) is added to subsection 87
Florida Senate - 2023 SB 1098 12-00451B-23 20231098__ Page 4 of 11 CODING: Words stricken are deletions; words underlined are additions. (1) and a new subsection (2) is added to that section, and 88 paragraph (
d) of subsection (1) of that
section is amended, to 89 read: 90 744.3675 Annual guardianship plan.—Each guardian of the 91 person must file with the court an annual guardianship plan 92 which updates information about the condition of the ward. The 93 annual plan must specify the current needs of the ward and how 94 those needs are proposed to be met in the coming year. 95
(1) Each plan for an adult ward must, if applicable, 96 include: 97 (d) 1. A list of any preexisting: 98 a. Orders not to resuscitate as described in executed under 99 s. 401.45(3) and the date such orders were signed; or 100 b. Preexisting Advance directives, as defined in s. 765.101 101 and, the date such directives were signed. an order or directive 102 was signed, 103 2.
For each item listed under subparagraph 1., the plan 104 must state whether the such order or directive has been revoked, 105 modified, or suspended by the court or the extent to which 106 authority under an order or directive has been transferred by 107 the court to the guardian. The plan must also state the date of 108 any revocation, modification, or suspension by the court. 109 (e) , and A description of the steps taken to identify and 110 locate a the preexisting order not to resuscitate or advance 111 directive. 112
(2) A surrogate designated by the ward in an advance 113 directive or an agent designated by the ward in a durable power 114 of attorney who retains authority to make health care decisions 115 under the guardianship plan may exercise retained authority 116
Florida Senate - 2023 SB 1098 12-00451B-23 20231098__ Page 5 of 11 CODING: Words stricken are deletions; words underlined are additions. without additional approval by the court. Any authority of the 117 surrogate to carry out the instructions in the advance directive 118 or authority of the agent under a durable power of attorney 119 which is transferred to the guardian may be exercised by the 120 guardian, consistent with the advance directive or durable power 121 of attorney, without additional approval by the court.
Any 122 authority transferred to the guardian to execute an order not to 123 resuscitate or to consent to withhold or withdraw life-124 prolonging procedures is subject to court approval pursuant to 125 s. 744.441 if there is a conflict over or objection to a 126 proposed exercise of that authority. 127
Section
Section 744.4431, Florida Statutes, is created 128 to read: 129 744.4431 Guardianship power regarding life-prolonging 130 procedures.— 131
(1) A guardian of a ward’s person may petition a court 132 pursuant to the Florida Probate Rules for authority to consent 133 to withhold or withdraw life-prolonging procedures for any of 134 the following reasons: 135 (
a) The right to consent to withhold or withdraw life-136 prolonging procedures has not been delegated to the guardian in 137 the order appointing the guardian. 138 (
b) Sufficient authority under the ward’s preexisting 139 advance directive or durable power of attorney has not been 140 transferred to the guardian. 141 (
c) The proposed withholding or withdrawal of life-142 prolonging procedures is in conflict with the wishes, as 143 presently or previously expressed, of the ward, the ward’s next 144 of kin, or any interested person. 145
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(2) The petition by the guardian must contain all of the 146 following: 147 (
a) A description of the proposed action for which court 148 approval is sought and documentation of any existing authority 149 for the guardian to make health care decisions for the ward. 150 (
b) A statement regarding any known objections to the 151 proposed action or of conflicts between the guardian’s proposed 152 action to withhold or withdraw life-prolonging procedures and 153 the wishes, presently or previously expressed, of the ward, the 154 ward’s next of kin, or any interested person. 155 (
c) A description of the circumstances or evidence and 156 affidavits or supporting documentation showing that the proposed 157 action satisfies the applicable criteria in s. 765.401 or s. 158 765.404. 159
(3) The guardian must serve notice of the petition, and of 160 any hearing, upon interested persons and the ward’s next of kin, 161 unless waived by the court. 162
(4) The court must hold a hearing on the petition if the 163 court has been notified of an objection or conflict or if the 164 court has insufficient information to determine whether the 165 criteria for granting the requested authority has been met. 166
(5) If a hearing is required and exigent circumstances are 167 alleged, the court must hold a preliminary hearing within 72 168 hours after the petition is filed and do one of the following: 169 (
a) Rule on the relief requested immediately after the 170 preliminary hearing. 171 (
b) Conduct an evidentiary hearing within 4 days after the 172 preliminary hearing and rule on the relief requested immediately 173 after the evidentiary hearing. 174
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(6) Notwithstanding the requirements for court approval 175 imposed under this section, and if authority to withhold or 176 withdraw life-prolonging procedures has not been vested in 177 another person, the guardian may, without a hearing or prior 178 court approval, consent to the withholding or withdrawal of 179 life-prolonging procedures if all of the following apply: 180 (
a) The ward is in a hospital and at least two of the 181 ward’s treating physicians state in writing that there is a 182 substantial likelihood that the ward’s death will occur within 183 the next 72 hours. 184 (
b) There is no known objection to the granting of a 185 petition to withhold or withdraw life-prolonging procedures. 186 (
c) The hospital ethics committee has met and agrees with 187 the guardian’s proposal to withhold or withdraw life-prolonging 188 procedures. If the hospital does not have an ethics committee, 189 it may seek approval by the ethics committee of another facility 190 or a community-based ethics committee approved by the Florida 191 Bioethics Network. 192
Section
Section 744.441, Florida Statutes, is amended to 193 read: 194 744.441 Powers of guardian upon court approval.—After 195 obtaining approval of the court pursuant to a petition for 196 authorization to act,: 197 (1) a plenary guardian of the property, or a limited 198 guardian of the property within the powers granted by the order 199 appointing the guardian or an approved annual or amended 200 guardianship report, may do all of the following: 201 (1)(
a) Perform, compromise, or refuse performance of a 202 ward’s contracts that continue as obligations of the estate, as 203
Florida Senate - 2023 SB 1098 12-00451B-23 20231098__ Page 8 of 11 CODING: Words stricken are deletions; words underlined are additions. he or she may determine under the circumstances. 204 (2)(
b) Execute, exercise, or release any powers as trustee, 205 personal representative, custodian for minors, conservator, or 206 donee of any power of appointment or other power that the ward 207 might have lawfully exercised, consummated, or executed if not 208 incapacitated, if the best interest of the ward requires such 209 execution, exercise, or release. 210 (3)(
c) Make ordinary or extraordinary repairs or 211 alterations in buildings or other structures; demolish any 212 improvements; or raze existing, or erect new, party walls or 213 buildings. 214 (4)(
d) Subdivide, develop, or dedicate land to public use; 215 make or obtain the vacation of plats and adjust boundaries; 216 adjust differences in valuation on exchange or partition by 217 giving or receiving consideration; or dedicate easements to 218 public use without consideration. 219 (5)(
e) Enter into a lease as lessor or lessee for any 220 purpose, with or without option to purchase or renew, for a term 221 within, or extending beyond, the period of guardianship. 222 (6)(
f) Enter into a lease or arrangement for exploration 223 and removal of minerals or other natural resources or enter into 224 a pooling or unitization agreement. 225 (7)(
g) Abandon property when, in the opinion of the 226 guardian, it is valueless or is so encumbered or in such 227 condition that it is of no benefit to the estate. 228 (8)(
h) Pay calls, assessments, and other sums chargeable or 229 accruing against, or on account of, securities. 230 (9)(
i) Borrow money, with or without security, to be repaid 231 from the property or otherwise and advance money for the 232
Florida Senate - 2023 SB 1098 12-00451B-23 20231098__ Page 9 of 11 CODING: Words stricken are deletions; words underlined are additions. protection of the estate. 233 (10)(
j) Effect a fair and reasonable compromise with any 234 debtor or obligor or extend, renew, or in any manner modify the 235 terms of any obligation owing to the estate. 236 (11)(
k) Prosecute or defend claims or proceedings in any 237 jurisdiction for the protection of the estate and of the 238 guardian in the performance of his or her duties. Before 239 authorizing a guardian to bring an action described in s. 240 736.0207, the court shall first find that the action appears to 241 be in the ward’s best interests during the ward’s probable 242 lifetime. There shall be a rebuttable presumption that an action 243 challenging the ward’s revocation of all or part of a trust is 244 not in the ward’s best interests if the revocation relates 245 solely to a devise.
This subsection paragraph does not preclude 246 a challenge after the ward’s death. If the court denies a 247 request that a guardian be authorized to bring an action 248 described in s. 736.0207, the court must shall review the 249 continued need for a guardian and the extent of the need for 250 delegation of the ward’s rights. 251 (12)(
l) Sell, mortgage, or lease any real or personal 252 property of the estate, including homestead property, or any 253 interest therein for cash or credit, or for
part cash and
part 254 credit, and with or without security for unpaid balances. 255 (13)(
m) Continue any unincorporated business or venture in 256 which the ward was engaged. 257 (14)(
n) Purchase the entire fee simple title to real estate 258 in this state in which the guardian has no interest, but the 259 purchase may be made only for a home for the ward, to protect 260 the home of the ward or the ward’s interest, or as a home for 261
Florida Senate - 2023 SB 1098 12-00451B-23 20231098__ Page 10 of 11 CODING: Words stricken are deletions; words underlined are additions. the ward’s dependent family.
If the ward is a married person and 262 the home of the ward or of the dependent family of the ward is 263 owned by the ward and spouse as an estate by the entirety and 264 the home is sold pursuant to the authority of subsection (12) 265 paragraph (l), the court may authorize the investment of any 266 part or all of the proceeds from the sale toward the purchase of 267 a fee simple title to real estate in this state for a home for 268 the ward or the dependent family of the ward as an estate by the 269 entirety owned by the ward and spouse.
If the guardian is 270 authorized to acquire title to real estate for the ward or 271 dependent family of the ward as an estate by the entirety in 272 accordance with the preceding provisions, the conveyance must 273 shall be in the name of the ward and spouse and shall be 274 effective to create an estate by the entirety in the ward and 275 spouse. 276 (15)(
o) Exercise any option contained in any policy of 277 insurance payable to, or inuring to the benefit of, the ward. 278 (16)(
p) Pay reasonable funeral, interment, and grave marker 279 expenses for the ward from the ward’s estate. 280 (17)(
q) Make gifts of the ward’s property to members of the 281 ward’s family in estate and income tax planning procedures. 282 (18)(
r) When the ward’s will evinces an objective to obtain 283 a United States estate tax charitable deduction by use of a 284 split interest trust (as that term is defined in s. 736.1201), 285 but the maximum charitable deduction otherwise allowable will 286 not be achieved in whole or in part, execute a codicil on the 287 ward’s behalf amending said will to obtain the maximum 288 charitable deduction allowable without diminishing the aggregate 289 value of the benefits of any beneficiary under such will. 290
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s) Create or amend revocable trusts or create 291 irrevocable trusts of property of the ward’s estate which may 292 extend beyond the disability or life of the ward in connection 293 with estate, gift, income, or other tax planning or in 294 connection with estate planning. The court shall retain 295 oversight of the assets transferred to a trust, unless otherwise 296 ordered by the court. 297 (20)(
t) Renounce or disclaim any interest by testate or 298 intestate succession or by inter vivos transfer. 299 (21)(
u) Enter into contracts that are appropriate for, and 300 in the best interest of, the ward. 301 (22)(
v) As to a minor ward, pay expenses of the ward’s 302 support, health, maintenance, and education, if the ward’s 303 parents, or either of them, are alive. 304
(2) A plenary guardian or a limited guardian of a ward may 305 sign an order not to resuscitate as provided in s. 401.45(3). 306 When a plenary guardian or a limited guardian of a ward seeks to 307 obtain approval of the court to sign an order not to 308 resuscitate, if required by exigent circumstances, the court 309 must hold a preliminary hearing within 72 hours after the 310 petition is filed, and: 311 (
a) Rule on the relief requested immediately after the 312 preliminary hearing; or 313 (
b) Conduct an evidentiary hearing not later than 4 days 314 after the preliminary hearing and rule on the relief requested 315 immediately after the evidentiary hearing. 316