Florida Probate Rule 5.649
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;
(10) whether authority is sought to seek periodic support
of the person with a developmental disability; and
(11) whether the person with a developmental disability
uses assistance to exercise the rights of the person, including, but
not limited to, supported decisionmaking agreements, and if so,
why the assistance is inappropriate or insufficient to allow the
person to independently exercise the person’s rights.
(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 any other persons as the court may
direct. 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) if the person may exercise rights with assistance,
and the rights for which the person lacks decisionmaking ability;
(8) the specific legal disabilities to which the person
with a developmental disability is subject;
(9) the name of the person selected as guardian
advocate; and
(10) 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.
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.
2023 Revision: Subdivision (a)(10) added to address statutory
changes to sections 393.12(2)(b) and (3)(b), Florida Statutes.
Committee notes revised.
2024 Revision: Subdivision (a)(11) added to address statutory
changes to sections 393.12(3)(a) and 393.12, Florida Statutes.
Subdivision (d)(7) added to address statutory changes to sections
393.12(2)(a), Florida Statutes. 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.
§ 709.2109, Fla. Stat. Termination or suspension of power of
attorney or agent’s authority.
§ 709.2209, Fla. Stat. Supported decisionmaking agreements.
§ 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.
(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;
(10) whether authority is sought to seek periodic support
of the person with a developmental disability; and
(11) whether the person with a developmental disability
uses assistance to exercise the rights of the person, including, but
not limited to, supported decisionmaking agreements, and if so,
why the assistance is inappropriate or insufficient to allow the
person to independently exercise the person’s rights.
(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 any other persons as the court may
direct. 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) if the person may exercise rights with assistance,
and the rights for which the person lacks decisionmaking ability;
(8) the specific legal disabilities to which the person
with a developmental disability is subject;
(9) the name of the person selected as guardian
advocate; and
(10) 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.
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.
2023 Revision: Subdivision (a)(10) added to address statutory
changes to sections 393.12(2)(b) and (3)(b), Florida Statutes.
Committee notes revised.
2024 Revision: Subdivision (a)(11) added to address statutory
changes to sections 393.12(3)(a) and 393.12, Florida Statutes.
Subdivision (d)(7) added to address statutory changes to sections
393.12(2)(a), Florida Statutes. 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.
§ 709.2109, Fla. Stat. Termination or suspension of power of
attorney or agent’s authority.
§ 709.2209, Fla. Stat. Supported decisionmaking agreements.
§ 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.