Fla. Prob. R. 5.649

As amended through March 26, 2024

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:

(1) the name, age, and present address of the petitioner and the petitioner's relationship to the person with a developmental disability;

(2) the name, age, county of residence, and present address of the person with a developmental disability;

(3) that the petitioner believes that the person needs a guardian advocate and the factual information on which the belief is based;

(4) the exact areas in which the person lacks the ability to make informed decisions about the person's care and treatment services or to meet the essential requirements for the person's physical health or safety;

(5) the legal disabilities to which the person is subject;

(6) if authority is sought over any property of the person, a description of that property and the reason why management or control of that property should be placed with a guardian advocate;

(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;

(8) whether the petitioner has knowledge, information, or belief that the person with a developmental disability has executed a designation of health case 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 development disability has executed any of the foregoing documents, an explanation as to why the documents are insufficient to meet the needs of the individual;

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

(10) whether authority is sought to seek periodic support of the person with a developmental disability.

(b) Notice.

(1) Notice of the filing of the petition must be given to the person with a developmental disability, both verbally and in writing, in the language of the person and in English. Notice must also be given to the person with a developmental disability's next of kin, any designated health care surrogate, an agent designated in a durable power of attorney, and such other persons as the court may direct. A copy of the petition to appoint a guardian advocate must be served with the notice.

(2) The notice must state that a hearing will be held to inquire into the capacity of the person with a developmental disability to exercise the rights enumerated in the petition. The notice must also state the date of the hearing on the petition.

(3) The notice must state that the person with a developmental disability has the right to be represented by counsel of the person's own choice and, the court must initially appoint counsel.

(c) Counsel. Within 3 days after a petition has been filed, the court must appoint an attorney to represent a person with a developmental disability who is the subject of a petition to appoint a guardian advocate. The person with a developmental disability may substitute the person's own attorney for the attorney appointed by the court.

(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) the nature and scope of the person's inability to make decisions;

(2) the exact areas in which the person lacks ability to make informed decisions about care and treatment services or to meet the essential requirements for the individual's physical health and safety;

(3) if any property of the person is to be placed under the management or control of the guardian advocate, a description of that property, any limitations as to the extent of such management or control, and the reason why management or control by the guardian advocate of that property is in the best interest of the person;

(4) if the person has executed a 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) if a durable power of attorney exists, the powers of the agent, if any, that are suspended and granted to the guardian advocate;

(6) if an advance directive exists and the court determines that the appointment of a guardian advocate is necessary, the authority, if any, the guardian advocate exercises over the health care surrogate;

(7) the specific legal disabilities to which the person with a developmental disability is subject;

(8) the name of the person selected as guardian advocate; and

(9) the powers, duties, and responsibilities of the guardian advocate, including bonding of the guardian advocate as provided by law.

(e) Issuance of Letters. After compliance with all of the foregoing, letters of guardian advocacy must be issued to the guardian advocate.

FL. Prob. R. 5.649

Amended by SC2023-1477, effective 12/14/2023; amended by 287 So.3d 492, effective 1/1/2020; amended by 301 So.3d 859, effective 9/3/2020; amended by 123 So.3d 31, effective 1/1/2014; added by 986 So.2d 576, effective 7/10/2008.

Committee Notes

Rule History

2008 Revision: New rule.

2013 Revision: New subdivisions (a)(6) and (d)(3) added to address situations in which the guardian advocate will have authority over the property of the person with a developmental disability. New subdivision (e) added to provide for the issuance of letters of guardian advocacy. Editorial changes to subdivisions (a)(7) and (b)(3). Editorial changes to conform to the court's guidelines for rules submissions as set forth in AOSC06-14.

2019 Revision: Subdivisions (b)(1) and (d)(5) amended to change "attorney-in-fact" to "agent" to be consistent with chapter 709, Florida Statutes. Committee notes updated to reflect the legislative amendments to chapter 709, Florida Statutes.

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.