Bill Text: FL S1098 | 2023 | Regular Session | Comm Sub
Bill Title: Withholding or Withdrawal of Life-prolonging Procedures
Spectrum: Slight Partisan Bill (? 2-1)
Status: (Introduced - Dead) 2023-05-02 - Laid on Table, companion bill(s) passed, see CS/CS/HB 1119 (Ch. 2023-287) [S1098 Detail]
Download: Florida-2023-S1098-Comm_Sub.html
Florida Senate - 2023 CS for CS for SB 1098 By the Committees on Children, Families, and Elder Affairs; and Judiciary; and Senator Burton 586-02527-23 20231098c2 1 A bill to be entitled 2 An act relating to withholding or withdrawal of life 3 prolonging procedures; amending s. 744.3215, F.S.; 4 authorizing a court to delegate the right to consent 5 to the withholding or withdrawal of life-prolonging 6 procedures of incapacitated persons in certain 7 circumstances; amending ss. 744.363 and 744.3675, 8 F.S.; making technical changes; requiring that initial 9 and annual guardianship plans, respectively, state 10 whether any power under the ward’s preexisting order 11 not to resuscitate or advance directive is revoked, 12 modified, suspended, or transferred to the guardian; 13 requiring that such plans state the date of such 14 action; establishing certain authority without 15 additional court approval; requiring a guardian to 16 obtain court approval to exercise transferred power to 17 execute an order not to resuscitate or consent to 18 withhold or withdraw life-prolonging procedures under 19 certain circumstances; creating s. 744.4431, F.S.; 20 authorizing a guardian to petition a court for 21 approval to consent to withhold or withdraw life 22 prolonging procedures under certain circumstances; 23 specifying requirements for the petition; requiring 24 the guardian to serve certain notices; specifying 25 procedures that must be followed by the court in 26 acting on the petition; authorizing the guardian to 27 withhold or withdraw life-prolonging procedures 28 without a hearing or court approval under certain 29 circumstances; amending s. 744.441, F.S.; making 30 technical changes; deleting provisions regarding the 31 authority of certain guardians to sign an order not to 32 resuscitate; providing an effective date. 33 34 Be It Enacted by the Legislature of the State of Florida: 35 36 Section 1. Paragraph (h) is added to subsection (3) of 37 section 744.3215, Florida Statutes, to read: 38 744.3215 Rights of persons determined incapacitated.— 39 (3) Rights that may be removed from a person by an order 40 determining incapacity and which may be delegated to the 41 guardian include the right: 42 (h) To consent to the withholding or withdrawal of life 43 prolonging procedures, as defined in s. 765.101, subject to 44 court approval, if there are no valid advance directives as 45 defined in s. 765.101 and no valid alternatives to guardianship 46 that will sufficiently address the withholding or withdrawal of 47 life-prolonging procedures. 48 Section 2. Present subsections (2) through (6) of section 49 744.363, Florida Statutes, are redesignated as subsections (3) 50 through (7), respectively, paragraph (g) is added to subsection 51 (1) of that section, a new subsection (2) is added to that 52 section, and paragraph (f) of subsection (1) of that section is 53 amended, to read: 54 744.363 Initial guardianship plan.— 55 (1) The initial guardianship plan shall include all of the 56 following: 57 (f)1. A list of any preexisting: 58 a. Orders not to resuscitate as described inexecuted under59 s. 401.45(3) and the date such orders were signed; or 60 b.PreexistingAdvance directives,as defined in s. 765.101 61 and,the date such directives were signed.an order or directive62was signed,63 2. For each item listed under subparagraph 1., the plan 64 must state whether thesuchorder or directive has been revoked, 65 modified, or suspended by the court or the extent to which 66 authority under an order or a directive has been transferred by 67 the court to the guardian. The plan must also state the date of 68 such action by the court. 69 (g), andA description of the steps taken to identify and 70 locate athepreexisting order not to resuscitate or advance 71 directive. 72 (2) A surrogate designated by the ward in an advance 73 directive or an agent designated by the ward in a durable power 74 of attorney who retains authority to make health care decisions 75 under the guardianship plan may exercise retained authority 76 without additional approval by the court. Any authority of the 77 surrogate to carry out the instructions in the advance directive 78 or any authority of the agent under a durable power of attorney 79 which is transferred to the guardian may be exercised by the 80 guardian, consistent with the advance directive or durable power 81 of attorney, without additional approval by the court. Any 82 authority transferred to the guardian to execute an order not to 83 resuscitate or to consent to withhold or withdraw life 84 prolonging procedures is subject to court approval pursuant to 85 s. 744.4431 if there is a conflict over or objection to a 86 proposed exercise of that authority. 87 Section 3. Present subsections (2), (3), and (4) of section 88 744.3675, Florida Statutes, are redesignated as subsections (3), 89 (4), and (5), respectively, paragraph (e) is added to subsection 90 (1) of that section, a new subsection (2) is added to that 91 section, and paragraph (d) of subsection (1) of that section is 92 amended, to read: 93 744.3675 Annual guardianship plan.—Each guardian of the 94 person must file with the court an annual guardianship plan 95 which updates information about the condition of the ward. The 96 annual plan must specify the current needs of the ward and how 97 those needs are proposed to be met in the coming year. 98 (1) Each plan for an adult ward must, if applicable, 99 include: 100 (d)1. A list of any preexisting: 101 a. Orders not to resuscitate as described inexecuted under102 s. 401.45(3) and the date such orders were signed; or 103 b.PreexistingAdvance directives,as defined in s. 765.101 104 and,the date such directives were signed.an order or directive105was signed,106 2. For each item listed under subparagraph 1., the plan 107 must state whether thesuchorder or directive has been revoked, 108 modified, or suspended by the court or the extent to which 109 authority under an order or directive has been transferred by 110 the court to the guardian. The plan must also state the date of 111 any revocation, modification, or suspension by the court. 112 (e), andA description of the steps taken to identify and 113 locate athepreexisting order not to resuscitate or advance 114 directive. 115 (2) A surrogate designated by the ward in an advance 116 directive or an agent designated by the ward in a durable power 117 of attorney who retains authority to make health care decisions 118 under the guardianship plan may exercise retained authority 119 without additional approval by the court. Any authority of the 120 surrogate to carry out the instructions in the advance directive 121 or any authority of the agent under a durable power of attorney 122 which is transferred to the guardian may be exercised by the 123 guardian, consistent with the advance directive or durable power 124 of attorney, without additional approval by the court. Any 125 authority transferred to the guardian to execute an order not to 126 resuscitate or to consent to withhold or withdraw life 127 prolonging procedures is subject to court approval pursuant to 128 s. 744.4431 if there is a conflict over or objection to a 129 proposed exercise of that authority. 130 Section 4. Section 744.4431, Florida Statutes, is created 131 to read: 132 744.4431 Guardianship power regarding life-prolonging 133 procedures.— 134 (1) A guardian of a ward’s person may petition a court 135 pursuant to the Florida Probate Rules for authority to consent 136 to withhold or withdraw life-prolonging procedures for any of 137 the following reasons: 138 (a) The right to consent to withhold or withdraw life 139 prolonging procedures has not been delegated to the guardian in 140 the order appointing the guardian. 141 (b) Sufficient authority under the ward’s preexisting 142 advance directive or durable power of attorney has not been 143 transferred to the guardian. 144 (c) The proposed withholding or withdrawal of life 145 prolonging procedures is in conflict with the wishes, as 146 presently or previously expressed, of the ward, the ward’s next 147 of kin, or any interested person. 148 (2) The petition by the guardian must contain all of the 149 following: 150 (a) A description of the proposed action for which court 151 approval is sought and documentation of any existing authority 152 for the guardian to make health care decisions for the ward. 153 (b) A statement regarding any known objections to the 154 proposed action or of conflicts between the guardian’s proposed 155 action to withhold or withdraw life-prolonging procedures and 156 the wishes, presently or previously expressed, of the ward, the 157 ward’s next of kin, or any interested person. 158 (c) A description of the circumstances or evidence and 159 affidavits or supporting documentation showing that the proposed 160 action satisfies the applicable criteria in s. 765.401 or s. 161 765.404. 162 (3) The guardian must serve notice of the petition, and of 163 any hearing, upon interested persons and the ward’s next of kin, 164 unless waived by the court. 165 (4) The court must hold a hearing on the petition if the 166 court has been notified of an objection or a conflict or if the 167 court has insufficient information to determine whether the 168 criteria for granting the requested authority has been met. 169 (5) If a hearing is required and exigent circumstances are 170 alleged, the court must hold a preliminary hearing within 72 171 hours after the petition is filed and do one of the following: 172 (a) Rule on the relief requested immediately after the 173 preliminary hearing. 174 (b) Conduct an evidentiary hearing within 4 days after the 175 preliminary hearing and rule on the relief requested immediately 176 after the evidentiary hearing. 177 (6) Notwithstanding the requirements for court approval 178 imposed under this section, and if authority to withhold or 179 withdraw life-prolonging procedures has not been vested in 180 another person, the guardian may, without a hearing or prior 181 court approval, consent to the withholding or withdrawal of 182 life-prolonging procedures if all of the following apply: 183 (a) The ward is in a hospital, and the ward’s primary 184 physician and at least one other consulting physician document 185 that the ward’s death is imminent. 186 (b) The guardian has notified known next of kin as to the 187 intent to withhold or withdraw life-prolonging procedures, and 188 there is no known objection to the withholding or withdrawing of 189 life-prolonging procedures by the ward, the next of kin, or any 190 other interested person. 191 (c) The hospital ethics committee has met and agrees with 192 the guardian’s proposal to withhold or withdraw life-prolonging 193 procedures. If the hospital does not have an ethics committee, 194 it may seek approval by the ethics committee of another facility 195 or a community-based ethics committee approved by the Florida 196 Bioethics Network. 197 Section 5. Section 744.441, Florida Statutes, is amended to 198 read: 199 744.441 Powers of guardian upon court approval.—After 200 obtaining approval of the court pursuant to a petition for 201 authorization to act,:202(1)a plenary guardian of the property, or a limited 203 guardian of the property within the powers granted by the order 204 appointing the guardian or an approved annual or amended 205 guardianship report, may do all of the following: 206 (1)(a)Perform, compromise, or refuse performance of a 207 ward’s contracts that continue as obligations of the estate, as 208 he or she may determine under the circumstances. 209 (2)(b)Execute, exercise, or release any powers as trustee, 210 personal representative, custodian for minors, conservator, or 211 donee of any power of appointment or other power that the ward 212 might have lawfully exercised, consummated, or executed if not 213 incapacitated, if the best interest of the ward requires such 214 execution, exercise, or release. 215 (3)(c)Make ordinary or extraordinary repairs or 216 alterations in buildings or other structures; demolish any 217 improvements; or raze existing, or erect new, party walls or 218 buildings. 219 (4)(d)Subdivide, develop, or dedicate land to public use; 220 make or obtain the vacation of plats and adjust boundaries; 221 adjust differences in valuation on exchange or partition by 222 giving or receiving consideration; or dedicate easements to 223 public use without consideration. 224 (5)(e)Enter into a lease as lessor or lessee for any 225 purpose, with or without option to purchase or renew, for a term 226 within, or extending beyond, the period of guardianship. 227 (6)(f)Enter into a lease or arrangement for exploration 228 and removal of minerals or other natural resources or enter into 229 a pooling or unitization agreement. 230 (7)(g)Abandon property when, in the opinion of the 231 guardian, it is valueless or is so encumbered or in such 232 condition that it is of no benefit to the estate. 233 (8)(h)Pay calls, assessments, and other sums chargeable or 234 accruing against, or on account of, securities. 235 (9)(i)Borrow money, with or without security, to be repaid 236 from the property or otherwise and advance money for the 237 protection of the estate. 238 (10)(j)Effect a fair and reasonable compromise with any 239 debtor or obligor or extend, renew, or in any manner modify the 240 terms of any obligation owing to the estate. 241 (11)(k)Prosecute or defend claims or proceedings in any 242 jurisdiction for the protection of the estate and of the 243 guardian in the performance of his or her duties. Before 244 authorizing a guardian to bring an action described in s. 245 736.0207, the court shall first find that the action appears to 246 be in the ward’s best interests during the ward’s probable 247 lifetime. There shall be a rebuttable presumption that an action 248 challenging the ward’s revocation of all or part of a trust is 249 not in the ward’s best interests if the revocation relates 250 solely to a devise. This subsectionparagraphdoes not preclude 251 a challenge after the ward’s death. If the court denies a 252 request that a guardian be authorized to bring an action 253 described in s. 736.0207, the court mustshallreview the 254 continued need for a guardian and the extent of the need for 255 delegation of the ward’s rights. 256 (12)(l)Sell, mortgage, or lease any real or personal 257 property of the estate, including homestead property, or any 258 interest therein for cash or credit, or for part cash and part 259 credit, and with or without security for unpaid balances. 260 (13)(m)Continue any unincorporated business or venture in 261 which the ward was engaged. 262 (14)(n)Purchase the entire fee simple title to real estate 263 in this state in which the guardian has no interest, but the 264 purchase may be made only for a home for the ward, to protect 265 the home of the ward or the ward’s interest, or as a home for 266 the ward’s dependent family. If the ward is a married person and 267 the home of the ward or of the dependent family of the ward is 268 owned by the ward and spouse as an estate by the entirety and 269 the home is sold pursuant to the authority of subsection (12) 270paragraph (l), the court may authorize the investment of any 271 part or all of the proceeds from the sale toward the purchase of 272 a fee simple title to real estate in this state for a home for 273 the ward or the dependent family of the ward as an estate by the 274 entirety owned by the ward and spouse. If the guardian is 275 authorized to acquire title to real estate for the ward or 276 dependent family of the ward as an estate by the entirety in 277 accordance with the preceding provisions, the conveyance must 278shallbe in the name of the ward and spouse andshallbe 279 effective to create an estate by the entirety in the ward and 280 spouse. 281 (15)(o)Exercise any option contained in any policy of 282 insurance payable to, or inuring to the benefit of, the ward. 283 (16)(p)Pay reasonable funeral, interment, and grave marker 284 expenses for the ward from the ward’s estate. 285 (17)(q)Make gifts of the ward’s property to members of the 286 ward’s family in estate and income tax planning procedures. 287 (18)(r)When the ward’s will evinces an objective to obtain 288 a United States estate tax charitable deduction by use of a 289 split interest trust (as that term is defined in s. 736.1201), 290 but the maximum charitable deduction otherwise allowable will 291 not be achieved in whole or in part, execute a codicil on the 292 ward’s behalf amending said will to obtain the maximum 293 charitable deduction allowable without diminishing the aggregate 294 value of the benefits of any beneficiary under such will. 295 (19)(s)Create or amend revocable trusts or create 296 irrevocable trusts of property of the ward’s estate which may 297 extend beyond the disability or life of the ward in connection 298 with estate, gift, income, or other tax planning or in 299 connection with estate planning. The court shall retain 300 oversight of the assets transferred to a trust, unless otherwise 301 ordered by the court. 302 (20)(t)Renounce or disclaim any interest by testate or 303 intestate succession or by inter vivos transfer. 304 (21)(u)Enter into contracts that are appropriate for, and 305 in the best interest of, the ward. 306 (22)(v)As to a minor ward, pay expenses of the ward’s 307 support, health, maintenance, and education, if the ward’s 308 parents, or either of them, are alive. 309(2) A plenary guardian or a limited guardian of a ward may310sign an order not to resuscitate as provided in s. 401.45(3).311When a plenary guardian or a limited guardian of a ward seeks to312obtain approval of the court to sign an order not to313resuscitate, if required by exigent circumstances, the court314must hold a preliminary hearing within 72 hours after the315petition is filed, and:316(a) Rule on the relief requested immediately after the317preliminary hearing; or318(b) Conduct an evidentiary hearing not later than 4 days319after the preliminary hearing and rule on the relief requested320immediately after the evidentiary hearing.321 Section 6. This act shall take effect July 1, 2023.