Why did the Florida Legislature enact the new statute, Section 744.4431, to allow professional guardians to withhold life-prolonging procedures without court approval?
As set forth in Florida’s House of Representatives Staff Final Bill Analysis for HB 1119 (the “Analysis”) in connection with Section 744.4431, Fla. Stat., since 2020, Florida law required guardians to obtain court approval prior to signing a Do Not Resuscitate Order (“DNRO”) for a ward; specifically, a guardian had to petition the court and obtain court approval prior to signing a DNRO. Analysis at 9. If a ward is in exigent circumstances, the court had to hold a preliminary hearing within 72 hours after the filing of the petition and either make a ruling immediately after the preliminary hearing, or conduct an evidentiary hearing within four days after the preliminary hearing and make a ruling immediately after the evidentiary hearing. Id.
The Florida Public Guardian Coalition submitted concerns to the Legislature’s Guardianship Improvement Task Force regarding the unintended consequences of requiring court approval before a guardian may sign a DNRO for a ward. These consequences include physicians’ refusal to provide comfort care to wards and resuscitations that led to injuries and undue suffering of wards. Public guardians reported barriers to obtaining necessary DNROs such as delays in filing petitions associated with gathering materials for the petitions and physician’s refusal to sign forms or appear before the court. Additionally, some circuit courts did not adjust their operations to accommodate the law’s timelines for making decisions in these cases, which resulted in delays harmful to the wards. Id. at 9 – 10.
Among the recommendations made by the Task Force were several suggestions relating to the treatment of ward’s advance directives by the courts. The Task Force reported numerous public comments asserting that advance directives are routinely being ignored or unlawfully removed by judges. Id. at 10. The Task Force suggested that judges be required to produce specific written findings of fact in any instance in which an advance directive is not honored. The Task Force also acknowledged that legal documents such as advance directives are often stored somewhere safe, secure, and private, which may result in the document not being available or able to be disclosed when needed.89 To address this, the Task Force suggested the state consider implementing a statewide health care surrogate/proxy database to ensure that this information is available when it is needed. Id.
In 2023, the Legislature enacted, and the Governor approved, Section 744.4431, Fla. Stat., to remedy the problems identified by the Task Force. The new statute became effective as of July 1, 2023.
A professional guardian may withhold life-prolonging procedures without court approval under the new Florida statute, Section 744.4431, under the following circumstances:
- To withdraw or withhold life-prolonging procedures consistent with the ward’s advance directive, when a guardian has authority to do so, as long as there are no known objections.
- To execute a DNRO, when the court delegates health care decision-making authority to the guardian, if the ward is in the hospital and the following conditions are met:
- The ward’s primary treating physician and at least one consulting physician document in the ward’s medical record that:
- There is no reasonable medical probability for recovery from or a cure of the ward’s underlying medical condition;
- The ward is in an end-stage condition, a terminal condition, or a persistent vegetative state and the ward’s death is imminent; and
- Resuscitation will cause the ward physical harm or additional
- The guardian has notified the ward’s known next of kin, and interested persons as directed by the court, and the decision is not contrary to the ward’s expressed wishes and there are no known objections.
- A guardian must notify the court within two business days of executing a DNRO for a ward under this provision.
The statute allows a professional guardian to take actions consistent with a ward’s advance directive without additional court approval; this ensures that a ward’s wishes established prior to incapacity are honored at the end of their lives. Id. at 11. The statute authorizes a professional guardian to execute a DNRO for a ward without additional court approval under a narrow set of circumstances tailored to minimize undue suffering when a ward is actively dying and there is no positive outcome that can be achieved with continued efforts to resuscitate. Id. The narrow circumstances in which a professional guardian may execute a DNRO under the statute establish safeguards with the intention of preventing the abuse of a guardian’s power, and the requirement that the guardian notify the court ensures that the decisions are not being made without some degree of oversight. Id.
Text of Section 744.4431, Fla. Stat.
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:
- 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.
- 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.
