(1) The administrator of a receiving facility or an addictions receiving facility may petition the court for the appointment of a guardian advocate based upon the opinion of a qualified professional 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 that a guardian with the authority to consent to substance abuse treatment has not been appointed, it may 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 criminal conflict and civil regional counsel 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 electronically or stenographically, and testimony must be provided under oath. One of the qualified professionals authorized to give an opinion in support of a petition for involuntary services, as described in s. 397.693, must testify. A guardian advocate must meet the qualifications of a guardian contained in part IV of chapter 744. The 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 individual under this part.

(b) The qualified professional who initiated the involuntary examination of the individual, if the examination was initiated by a qualified professional’s certificate.

(c) An employee, an administrator, or a board member of the facility providing the examination of the individual.

(d) An employee, an administrator, or a board member of the treatment facility providing treatment of the individual.

(e) A person providing any substantial professional services, excluding public guardians or professional guardians, to the individual, including clinical services.

(f) A creditor of the individual.

(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 individual 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 individual was the petitioner.

(3) A facility requesting appointment of a guardian advocate must, before the appointment, provide the prospective guardian advocate with information about the duties and responsibilities of guardian advocates, including information about the ethics of medical decisionmaking. Before asking a guardian advocate to give consent to treatment for a patient, the facility must provide to the guardian advocate sufficient information so that the guardian advocate can decide whether to give express and informed consent to the treatment. Such information must include information that demonstrates that the treatment is essential to the care of the patient and does not present an unreasonable risk of serious, hazardous, or irreversible side effects. If possible, before giving consent to treatment, the guardian advocate must personally meet and talk with the patient and the patient’s physician. If that is not possible, the discussion may be conducted by telephone. 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 for guardians appointed pursuant to chapter 744, a guardian advocate shall attend at least a 4-hour training course approved by the court before exercising his or her authority. At a minimum, the training course must include information about patient rights, the diagnosis of substance abuse disorders, the ethics of medical decisionmaking, and the 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 need not be 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 provided in 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 the patient’s health care surrogate, if one has already been designated by the patient. If the patient has not previously designated a health care surrogate, the selection shall be made, except for good cause documented in the court record, from among the following persons, listed in order of priority:

(a) The spouse of the patient.

(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 the 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 substance abuse disorder treatment. Unless otherwise limited by the court, a guardian advocate with authority to consent to medical treatment has the same authority to make health care decisions and is 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 a 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) Electroshock therapy.

(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 authorization 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. In complying with this subsection, the court shall follow the procedures set forth in subsection (1).

(8) The guardian advocate shall be discharged when the patient is discharged from an order for involuntary services or when the patient is transferred from involuntary to voluntary status. The court or a hearing officer shall consider the competence of the patient as provided in subsection (1) and may consider an involuntarily placed patient’s competence to consent to services at any hearing. Upon sufficient evidence, the court may restore, or the magistrate 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. 43, ch. 2016-241.