IN RE: AMENDMENTS TO the FLORIDA PROBATE RULES — GUARDIANSHIP (2020)

This matter is before the Court for consideration of proposed amendments to the Florida Probate Rules. We have jurisdiction ¹ and adopt the amendments as proposed with minor modifications discussed herein.²

The Florida Probate Rules Committee (Committee) filed a report proposing amendments to the Florida Probate Rules and the creation of seven new forms. See Fla. R. Jud. Admin. 2.140(f). The Committee's proposals were in response to a referral from the Court asking the Committee to consider several recommendations of the Judicial Management Council's Guardianship Workgroup (Workgroup) that could require rule or form amendments and to propose any amendments the Committee determines are warranted.³

The Executive Committee of the Board of Governors of The Florida Bar unanimously approved the Committee's proposals. Pursuant to Florida Rule of Judicial Administration 2.140(f), the proposed amendments were not published for comment before they were filed with the Court. After the Committee filed its proposed amendments, the Court published the proposals for comments and received no comments. Thereafter, the Court issued an order requesting that the Committee file a supplemental report addressing whether any of the proposed new forms should contain a note that a certificate of service should be included when required by Florida Rule of Judicial Administration 2.516(b)(2) (Service of Pleadings and Documents; Service; How Made). The Committee filed the supplemental report as requested, which we have taken into consideration.

The Committee proposes amending rules 5.550 (Petition to Determine Incapacity), 5.560 (Petition for Appointment of Guardian of an Incapacitated Person), 5.649 (Guardian Advocate), and 5.900 (Expedited Judicial Intervention Concerning Medical Treatment Procedures). Additionally, the Committee proposes the adoption of new forms 5.901 (Form for Petition to Determine Incapacity), 5.902 (Form for Petition and Order of Guardian), 5.903 (Letters of Guardianship), 5.904 (Forms for Initial and Annual Guardianship Plans), 5.905 (Form for Petition, Notice, and Order for Appointment of Guardian Advocate of the Person), 5.906 (Letters of Guardian Advocacy), and 5.910 (Inventory). The more significant amendments are discussed below.

We amend subdivision (a)(8) of rule 5.550 to clarify that a petition to determine incapacity must include designations of health care surrogates or other advance directives. Additionally, we amend the rule to require a petitioner seeking guardianship to explain “why the alternatives are insufficient to meet the needs of the alleged incapacitated person.”

Next, we amend subdivision (a)(9) of rule 5.560 to require that a petition for appointment of guardian state whether the petitioner has knowledge or belief that there are other possible alternatives to guardianship, and if there are, the petitioner must include an explanation of “why the alternatives are insufficient to meet the needs of the alleged incapacitated person.”

Also, we amend subdivision (a)(8) of rule 5.649 to require that a petitioner seeking appointment of a guardian advocate include in the petition whether the petitioner has knowledge that the person with a developmental disability has executed a designation of health care surrogate. If the person with a developmental disability has executed such a document or an advanced directive under chapter 765, Florida Statutes, or a durable power of attorney under chapter 709, Florida Statutes, then the petitioner must explain “why the documents are insufficient to meet the needs of the individual.” Further, we adopt new subdivision (a)(9) that requires a statement from the petitioner regarding any knowledge of a preneed guardian designation.

Furthermore, we adopt new rules containing standardized forms, providing public access to forms to help reduce costs and creating uniformity statewide. First, we adopt new rule 5.901, which provides a model form to be used in a petition to determine incapacity pursuant to rule 5.550. Next, we adopt new rule 5.902, which includes a Petition for Appointment of Guardian and an Order for Appointment of Guardian. Further, we adopt new rule 5.903, which includes forms for “Letters of Guardianship of the Person” and “Letters of Guardianship of the Property.” We also adopt new rule 5.904, which provides the following guardianship plans: “Initial Guardianship Plan for Minor;” “Annual Guardianship Plan for Minor;” “Initial Guardianship Plan for Adult;” and “Annual Guardianship Plan for Adult.” Additionally, we adopt new rule 5.905, which includes a petition, notice, and order for appointment of guardian advocate of the person. We adopt new rule 5.906, which provides model Letters of Guardian Advocacy. Lastly, we adopt new rule 5.910, which is a form for an inventory account. We have added the following statement to rule 5.910, as recommended in the Committee's supplemental report: “A certificate of service as required by Florida Rule of Judicial Administration 2.516 must be included if the incapacitated person is not a minor under 14 years of age and is not totally incapacitated.”

Accordingly, the Florida Probate Rules are amended as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall take effect immediately upon the release of this opinion.

It is so ordered.

APPENDIX

RULE 5.550. PETITION TO DETERMINE INCAPACITY

(a) Contents. The petition to determine incapacity shall be verified by the petitioner and shall state:

(1) – (7) [No Change]

(8) whether there are possible alternatives to guardianship known to the petitioner, including, but not limited to, trust agreements, powers of attorney, designations of health care surrogates, or other advance directives, and if the petitioner is seeking a guardianship, an explanation as to why the alternatives are insufficient to meet the needs of the alleged incapacitated person.

(b) – (f) [No Change]

Committee Notes

Rule History

1980 Revision – 2017 Revision: [No Change]

2020 Revision: Amends subdivision (a)(8) to address the Judicial Management Council Guardianship Workgroup Final Report dated June 15, 2018, Focus Area 1, Recommendation 3, by requiring an explanation if there are less restrictive alternatives to guardianship, but they are not sufficient to meet the needs of the alleged incapacitated person. Committee notes revised.

Statutory References

§ 709.2104, Fla. Stat. Durable power of attorney.

§ 709.2109, Fla. Stat. Termination or suspension of power of attorney or agent's authority.

§ 744.1012, Fla. Stat. Legislative intent.

§ 744.104, Fla. Stat. Verification of documents.

§ 744.3045, Fla. Stat. Preneed guardian.

§ 744.3115, Fla. Stat. Advance directives for health care.

§ 744.3201, Fla. Stat. Petition to determine incapacity.

§ 744.331, Fla. Stat. Procedures to determine incapacity.

§ 744.3371, Fla. Stat. Notice of petition for appointment of guardian and hearing.

§ 744.441(11), Fla. Stat. Powers of guardian upon court approval.

§ 744.462, Fla. Stat. Determination regarding alternatives to guardianship.

§ 765.102, Fla. Stat. Legislative intent and findings.

Rule References

[No Change]

RULE 5.560. PETITION FOR APPOINTMENT OF GUARDIAN OF AN INCAPACITATED PERSON

(a) Contents. The petition shall be verified by the petitioner and shall state:

(1) – (8) [No Change]

(9) whether the petitioner has knowledge, information, or belief that there are possible alternatives to guardianship known to the petitioner, including, but not limited to, trust agreements, powers of attorney, designations of health care surrogates, or other advance directives, and if there are possible alternatives to guardianship, an explanation as to why the alternatives are insufficient to meet the needs of the alleged incapacitated person; and

(10) whether the petitioner has knowledge, information, or belief that the alleged incapacitated person has a preneed guardian designation; and

(1011) if the proposed guardian is a professional guardian, a statement that the proposed guardian has complied with the registration requirements of section 744.2002, Florida Statutes.

(b) – (c) [No Change]

Committee Notes

Rule History

1975 Revision – 2016 Revision: [No Change]

2020 Revision: Amends subdivision (a)(9) to address the Judicial Management Council Guardianship Workgroup Final Report dated June 15, 2018, Focus Area 1, Recommendation 3, by requiring an explanation if there are less restrictive alternatives to guardianship, but they are not sufficient to meet the needs of the alleged incapacitated person. Adds a new subdivision (a)(10) to address the Judicial Management Council Guardianship Workgroup Final Report dated June 15, 2018, Focus Area 1, Recommendation 4, by requiring a statement of the petitioner's knowledge of any preneed guardian designation. Committee notes revised.

Statutory References

§ 709.2104, Fla. Stat. Durable power of attorney.

§ 709.2109, Fla. Stat. Termination or suspension of power of attorney or agent's authority.

§ 744.2002, Fla. Stat. Professional guardian registration.

§ 744.3045, Fla. Stat. Preneed guardian.

§ 744.309, Fla. Stat. Who may be appointed guardian of a resident ward.

§ 744.3115, Fla. Stat. Advance directives for health care.

§ 744.312, Fla. Stat. Considerations in appointment of guardian.

§ 744.3201, Fla. Stat. Petition to determine incapacity.

§ 744.331, Fla. Stat. Procedures to determine incapacity.

§ 744.334, Fla. Stat. Petition for appointment of guardian or professional guardian; contents.

§ 744.3371(1), Fla. Stat. Notice of petition for appointment of guardian and hearing.

§ 744.341, Fla. Stat. Voluntary guardianship.

§ 744.2005 Fla. Stat. Order of appointment.

§ 744.462, Fla. Stat. Determination regarding alternatives to guardianship.

§ 744.2006, Fla. Stat. Office of public guardian; appointment, notification.

§ 765.102, Fla. Stat. Legislative intent and findings.

Rule References

[No Change]

RULE 5.649. GUARDIAN ADVOCATE

(a) Petition for Appointment of Guardian Advocate. A petition to appoint a guardian advocate for a person with a developmental disability may be executed by an adult person who is a resident of this state. The petition must be verified by the petitioner and must state:

(b) – (c) [No Change]

(1) – (6) [No Change]

(7) the name of the proposed guardian advocate, the relationship of the proposed guardian advocate to the person with a developmental disability, the relationship of the proposed guardian advocate with the providers of health care services, residential services, or other services to the person with developmental disabilities, and the reason why the proposed guardian advocate should be appointed. If a willing and qualified guardian advocate cannot be located, the petition must so state; and

(8) whether the petitioner has knowledge, information, or belief that the person with a developmental disability has executed an designation of health care surrogate or other advance directive under chapter 765, Florida Statutes, or a durable power of attorney under chapter 709, Florida Statutes, and if the person with a developmental disability has executed any of the foregoing documents, an explanation as to why the documents are insufficient to meet the needs of the individual; and

(9) whether the petitioner has knowledge, information, or belief that the person with a developmental disability has a preneed guardian designation.

(d) Order. If the court finds the person with a developmental disability requires the appointment of a guardian advocate, the order appointing the guardian advocate must contain findings of facts and conclusions of law, including:

(1) – (3) [No Change]

(4) if the person has executed an designation of health care surrogate, other advance directive, or durable power of attorney, a determination as to whether the documents sufficiently address the needs of the person and a finding that the advance directive or durable power of attorney does not provide an alternative to the appointment of a guardian advocate that sufficiently addresses the needs of the person with a developmental disability;

(5) – (9) [No Change]

(e) [No Change]

Committee Notes

Rule History

2008 Revision – 2019 Revision: [No Change]

2020 Revision: Amends subdivision (a)(8) to address the Judicial Management Council Guardianship Workgroup Final Report dated June 15, 2018, Focus Area 1, Recommendation 3, by requiring an explanation if there are less restrictive alternatives to guardianship, but they are not sufficient to meet the needs of the person with a developmental disability. Adds a new subdivision (a)(9) to address the Judicial Management Council Guardianship Workgroup Final Report dated June 15, 2018, Focus Area 1, Recommendation 4, by requiring a statement of the petitioner's knowledge of any preneed guardian designation. Committee notes revised.

Statutory References

§ 393.063(9), Fla. Stat. Definitions.

§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate.

§§ 709.2101–709.2402, Fla. Stat. Florida Power of Attorney Act.

§ 709.2019, Fla. Stat. Termination or suspension of power of attorney or agent's authority.

§ 744.3045, Fla. Stat. Preneed guardian.

§ 765.101, Fla. Stat. Definitions.

§ 765.104, Fla. Stat. Amendment or revocation.

§ 765.202, Fla. Stat. Designation of a health care surrogate.

§ 765.204, Fla. Stat. Capacity of principal; procedure.

§ 765.205(3), Fla. Stat. Responsibility of the surrogate.

§ 765.302, Fla. Stat. Procedure for making a living will; notice to physician.

§ 765.401, Fla. Stat. The proxy.

Rule References

Fla. Prob. R. 5.020 Pleadings; verification; motions.

Fla. Prob. R. 5.540 Hearings.

Fla. Prob. R. 5.681 Restoration of rights of person with developmental disability.

RULE 5.900850. EXPEDITED JUDICIAL INTERVENTION CONCERNING MEDICAL TREATMENT PROCEDURES

(a) – (d) [No Change]

Committee Notes

[No Change]

Rule History

1991 Revision – 2019 Revision: [No Change]

2020 Revision: Rule was renumbered from 5.900 to 5.850 to allow forms to follow the rules set. Committee notes revised.

Constitutional Reference

Art. I, § 23, Fla. Const.

Statutory References

§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate.

§§ 709.2101–709.2402, Fla. Stat. Florida Power of Attorney Act.

§ 709.2109, Fla. Stat. Termination or suspension of power of attorney or agent's authority.

§ 731.302, Fla. Stat. Waiver and consent by interested person.

§ 744.102, Fla. Stat. Definitions.

§ 744.104, Fla. Stat. Verification of documents.

§ 744.3115, Fla. Stat. Advance directives for health care.

ch. 765, Fla. Stat. Health care advance directives.

Rule References

Fla. Prob. R. 5.020 Pleadings; verification; motions.

Fla. Prob. R. 5.040 Notice.

APPENDIX A

APPENDIX B

FOOTNOTES

1.   See art. V, § 2(a), Fla. Const.

2.   Minor technical corrections are not discussed.

3.   Although the Committee proposes several rule amendments and several new forms to address some of the Workgroup's recommendations, the Committee declined to propose amendments in response to three of the Workgroup's recommendations, which were also addressed in the Committee's report.

PER CURIAM.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, and COURIEL, JJ., concur.