(1) The administrator may petition the court for the appointment of a guardian advocate based upon the opinion of a psychiatrist that the patient is incompetent to consent to treatment. If the court finds that a patient is incompetent to consent to treatment and has not been adjudicated incapacitated and a guardian with the authority to consent to mental health treatment appointed, it shall appoint a guardian advocate. The patient has the right to have an attorney represent him or her at the hearing. If the person is indigent, the court shall appoint the office of the public defender to represent him or her at the hearing. The patient has the right to testify, cross-examine witnesses, and present witnesses. The proceeding shall be recorded either electronically or stenographically, and testimony shall be provided under oath. One of the professionals authorized to give an opinion in support of a petition for involuntary placement, as described in s. 394.4655 or s. 394.467, must testify. A guardian advocate must meet the qualifications of a guardian contained in part IV of chapter 744, except that a professional referred to in this part, an employee of the facility providing direct services to the patient under this part, a departmental employee, a facility administrator, or member of the Florida local advocacy council shall not be appointed. A person who is appointed as a guardian advocate must agree to the appointment.
(2) The following persons are prohibited from appointment as a patient’s guardian advocate:
(a) A professional providing clinical services to the patient under this part.
(b) The licensed professional who initiated the involuntary examination of the patient, if the examination was initiated by professional certificate.
(c) An employee, an administrator, or a board member of the facility providing the examination of the patient.
(d) An employee, an administrator, or a board member of a treatment facility providing treatment of the patient.
(e) A person providing any substantial professional services, excluding public and professional guardians, to the patient, including clinical services.
(f) A creditor of the patient.
(g) A person subject to an injunction for protection against domestic violence under s. 741.30, whether the order of injunction is temporary or final, and for which the patient was the petitioner.
(h) A person subject to an injunction for protection against repeat violence, stalking, sexual violence, or dating violence under s. 784.046, whether the order of injunction is temporary or final, and for which the patient was the petitioner.
(3) A facility requesting appointment of a guardian advocate must, prior to the appointment, provide the prospective guardian advocate with information about the duties and responsibilities of guardian advocates, including the information about the ethics of medical decisionmaking. Before asking a guardian advocate to give consent to treatment for a patient, the facility shall provide to the guardian advocate sufficient information so that the guardian advocate can decide whether to give express and informed consent to the treatment, including information that the treatment is essential to the care of the patient, and that the treatment does not present an unreasonable risk of serious, hazardous, or irreversible side effects. Before giving consent to treatment, the guardian advocate must meet and talk with the patient and the patient’s physician in person, if at all possible, and by telephone, if not. The decision of the guardian advocate may be reviewed by the court, upon petition of the patient’s attorney, the patient’s family, or the facility administrator.
(4) In lieu of the training required of guardians appointed pursuant to chapter 744, a guardian advocate must, at a minimum, participate in a 4-hour training course approved by the court before exercising his or her authority. At a minimum, this training course must include information about patient rights, psychotropic medications, the diagnosis of mental illness, the ethics of medical decisionmaking, and duties of guardian advocates.
(5) The required training course and the information to be supplied to prospective guardian advocates before their appointment must be developed by the department, approved by the chief judge of the circuit court, and taught by a court-approved organization, which may include, but is not limited to, a community college, a guardianship organization, a local bar association, or The Florida Bar. The training course may be web-based, provided in video format, or other electronic means but must be capable of ensuring the identity and participation of the prospective guardian advocate. The court may waive some or all of the training requirements for guardian advocates or impose additional requirements. The court shall make its decision on a case-by-case basis and, in making its decision, shall consider the experience and education of the guardian advocate, the duties assigned to the guardian advocate, and the needs of the patient.
(6) In selecting a guardian advocate, the court shall give preference to a health care surrogate, if one has already been designated by the patient. If the patient has not previously selected a health care surrogate, except for good cause documented in the court record, the selection shall be made from the following list in the order of listing:
(a) The patient’s spouse.
(b) An adult child of the patient.
(c) A parent of the patient.
(d) The adult next of kin of the patient.
(e) An adult friend of the patient.
(f) An adult trained and willing to serve as guardian advocate for the patient.
(7) If a guardian with the authority to consent to medical treatment has not already been appointed or if the patient has not already designated a health care surrogate, the court may authorize the guardian advocate to consent to medical treatment, as well as mental health treatment. Unless otherwise limited by the court, a guardian advocate with authority to consent to medical treatment shall have the same authority to make health care decisions and be subject to the same restrictions as a proxy appointed under part IV of chapter 765. Unless the guardian advocate has sought and received express court approval in proceeding separate from the proceeding to determine the competence of the patient to consent to medical treatment, the guardian advocate may not consent to:
(a) Abortion.
(b) Sterilization.
(c) Electroconvulsive treatment.
(d) Psychosurgery.
(e) Experimental treatments that have not been approved by a federally approved institutional review board in accordance with 45 C.F.R. part 46 or 21 C.F.R. part 56.
The court must base its decision on evidence that the treatment or procedure is essential to the care of the patient and that the treatment does not present an unreasonable risk of serious, hazardous, or irreversible side effects. The court shall follow the procedures set forth in subsection (1) of this section.
(8) The guardian advocate shall be discharged when the patient is discharged from an order for involuntary outpatient placement or involuntary inpatient placement or when the patient is transferred from involuntary to voluntary status. The court or a hearing officer shall consider the competence of the patient pursuant to subsection (1) and may consider an involuntarily placed patient’s competence to consent to treatment at any hearing. Upon sufficient evidence, the court may restore, or the hearing officer may recommend that the court restore, the patient’s competence. A copy of the order restoring competence or the certificate of discharge containing the restoration of competence shall be provided to the patient and the guardian advocate.
History.—s. 10, ch. 96-169; s. 50, ch. 97-96; s. 12, ch. 2000-263; s. 3, ch. 2004-385; s. 11, ch. 2016-241.