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