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The Florida Statutes

The 2023 Florida Statutes (including Special Session C)

Title XLIII
DOMESTIC RELATIONS
Chapter 744
GUARDIANSHIP
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F.S. 744.4431
744.4431 Guardianship power regarding life-prolonging procedures.
(1) Except as provided in this section, decisions by a professional guardian, as defined in s. 744.102, to withhold or withdraw life-prolonging procedures from, or to execute an order not to resuscitate for, a ward must be approved by the court. A professional guardian appointed to act on behalf of a ward’s person must petition the court pursuant to the Florida Probate Rules for authority to consent to withhold or withdraw life-prolonging procedures or to execute an order not to resuscitate before taking such action, except as provided in subsection (7).
(2) The petition by a professional guardian must contain all of the following:
(a) A description of the proposed action or decision for which court approval is sought and documentation of the authority of the professional guardian to make health care decisions on behalf of the ward.
(b) A statement regarding any known objections to the relief sought in the petition.
(c) A description of the ward’s known wishes, including all advance directives executed by the ward, or, if there is no indication of the ward’s wishes, a description of why the relief sought is in the best interests of the ward.
(d) Any exigent circumstances that exist which necessitate immediate relief.
(e) A description of the circumstances requiring the proposed action or decision and evidence, including affidavits, medical records, or other supporting documentation, showing that the proposed action or decision satisfies the criteria in s. 765.305, s. 765.401(3), or s. 765.404, as applicable.
(3) A professional guardian must show by clear and convincing evidence that the proposed action or decision he or she is requesting would have been the decision the ward would have chosen if the ward had capacity or, if there is no indication of what the ward would have chosen, that the proposed action or decision is in the best interests of the ward.
(4) A professional guardian must serve notice of the petition, and of any hearing, on the ward; the ward’s attorney, if any; the ward’s next of kin, if known; and any other interested persons as the court may direct, unless such requirement is waived by the court.
(5) The court must hold a hearing on the petition if:
(a) The ward or the ward’s attorney objects to the petition;
(b) The ward’s next of kin or an interested person objects on any basis under s. 765.105(1);
(c) The professional guardian, the ward, or the ward’s attorney requests a hearing; or
(d) The court has insufficient information to determine whether the criteria for granting the petition has been met.
(6) If a hearing is required and exigent circumstances are alleged, the court must hold a preliminary hearing within 72 hours after the petition is filed and do one of the following:
(a) Rule on the relief requested immediately after the preliminary hearing; or
(b) Conduct an evidentiary hearing within 4 days after the preliminary hearing and rule on the relief requested immediately after the evidentiary hearing.
(7) Court approval is not required for the following decisions:
(a) A decision to withhold or withdraw life-prolonging procedures made by a professional guardian to whom authority has been granted by the court under s. 744.3115 to carry out the instructions in or to take actions consistent with the ward’s advance directive, as long as there are no known objections from the ward; the ward’s attorney; the ward’s next of kin, if known; and any other interested persons as the court may direct based on s. 765.105(1).
(b) A decision by a professional guardian who has been delegated health care decisionmaking authority to execute an order not to resuscitate, as described in s. 401.45(3)(a), if the ward is in a hospital and the following conditions are met:
1. The ward’s primary treating physician and at least one other consulting physician document in the ward’s medical record that:
a. There is no reasonable medical probability for recovery from or a cure of the ward’s underlying medical condition;
b. The ward is in an end-stage condition, a terminal condition, or a persistent vegetative state as those terms are defined in s. 765.101, and that the ward’s death is imminent; and
c. Resuscitation will cause the ward physical harm or additional pain.
2. The professional guardian has notified the ward’s next of kin, if known, and any interested persons as the court may direct and the decision is not contrary to the ward’s expressed wishes and there are no known objections from the ward; the ward’s attorney; the ward’s next of kin, if known; or any other interested persons as the court may direct on the basis of s. 765.105(1).
(8) Within 2 business days after executing an order not to resuscitate under paragraph (7)(b), a professional guardian must notify the court in writing of all of the following:
(a) The date the order not to resuscitate was executed.
(b) The location of the ward when the order not to resuscitate was executed.
(c) The names of the physicians who documented the ward’s condition in the ward’s medical record.
History.s. 5, ch. 2023-287.