The 2023 Florida Statutes (including Special Session C)

Title XLIII
DOMESTIC RELATIONS

Chapter 744
GUARDIANSHIP

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F.S. 744.3215

744.3215 Rights of persons determined incapacitated.—

(1) A person who has been determined to be incapacitated retains the right:

(a) To have an annual review of the guardianship report and plan.

(b) To have continuing review of the need for restriction of his or her rights.

(d) To be treated humanely, with dignity and respect, and to be protected against abuse, neglect, and exploitation.

(e) To have a qualified guardian.

(f) To remain as independent as possible, including having his or her preference as to place and standard of living honored, either as he or she expressed or demonstrated his or her preference prior to the determination of his or her incapacity or as he or she currently expresses his or her preference, insofar as such request is reasonable.

(g) To be properly educated.

(h) To receive prudent financial management for his or her property and to be informed how his or her property is being managed, if he or she has lost the right to manage property.

(i) To receive services and rehabilitation necessary to maximize the quality of life.

(j) To be free from discrimination because of his or her incapacity.

(k) To have access to the courts.

(l) To counsel.

(m) To receive visitors and communicate with others.

(n) To notice of all proceedings related to determination of capacity and guardianship, unless the court finds the incapacitated person lacks the ability to comprehend the notice.

(o) To privacy.

(2) Rights that may be removed from a person by an order determining incapacity but not delegated to a guardian include the right:

(a) To marry. If the right to enter into a contract has been removed, the right to marry is subject to court approval.

(b) To vote.

(d) To have a driver license.

(e) To travel.

(f) To seek or retain employment.

(3) Rights that may be removed from a person by an order determining incapacity and which may be delegated to the guardian include the right:

(a) To contract.

(b) To sue and defend lawsuits.

(d) To manage property or to make any gift or disposition of property.

(e) To determine his or her residence.

(f) To make health care decisions as defined in s. 765.101. If this right is removed from a person, then court approval for the withdrawal or withholding of life-prolonging procedures, as defined in s. 765.101, is required under s. 744.4431.

(g) To make decisions about his or her social environment or other social aspects of his or her life.

(4) Without first obtaining specific authority from the court, as described in s. 744.3725, a guardian may not:

(a) Commit the ward to a facility, institution, or licensed service provider without formal placement proceeding, pursuant to chapter 393, chapter 394, or chapter 397.

(b) Consent on behalf of the ward to the performance on the ward of any experimental biomedical or behavioral procedure or to the participation by the ward in any biomedical or behavioral experiment. The court may permit such performance or participation only if:

1. It is of direct benefit to, and is intended to preserve the life of or prevent serious impairment to the mental or physical health of the ward; or

2. It is intended to assist the ward to develop or regain his or her abilities.

(d) Consent on behalf of the ward to termination of the ward’s parental rights.

(e) Consent on behalf of the ward to the performance of a sterilization or abortion procedure on the ward.

History.—s. 34, ch. 89-96; s. 19, ch. 90-271; s. 36, ch. 93-39; s. 13, ch. 94-183; s. 44, ch. 96-169; s. 6, ch. 96-354; s. 1782, ch. 97-102; s. 10, ch. 2006-178; s. 5, ch. 2017-16; s. 2, ch. 2023-287.

F.S. 744.3215 on Google Scholar

F.S. 744.3215 on Casetext

Amendments to 744.3215

Arrestable Offenses / Crimes under Fla. Stat. 744.3215

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 744.3215.

Annotations, Discussions, Cases:

Cases from cite.case.law:

WALLACE, v. COMPREHENSIVE PERSONAL CARE SERVICES, INC., 275 So. 3d 782 (Fla. App. Ct. 2019)

. . . incapacitated person's attending or family physician, if known; (f) State which rights enumerated in s. 744.3215 . . .

JACOBSEN, v. BUSKO,, 262 So. 3d 238 (Fla. App. Ct. 2018)

. . . While section 744.3215(1)(l) of the Florida Statutes (2018) does give the ward a right to counsel, the . . . (citing section 744.3215(3)(a), which provides that "[r]ights that may be removed from a person by an . . .

S. COOK, v. COOK, 260 So. 3d 281 (Fla. App. Ct. 2018)

. . . must determine the alleged incapacitated person's ability to exercise those rights specified in s. 744.3215 . . .

M. HASSOUN, v. RELIASTAR LIFE INSURANCE COMPANY, a a v. T. M., 288 F. Supp. 3d 1334 (S.D. Fla. 2018)

. . . Smith , 224 So.3d 740, 747 (Fla. 2017) (In the context of section 744.3215(2)(a), "the right to marry . . .

SARFATY, v. In M. S., 232 So. 3d 1074 (Fla. Dist. Ct. App. 2017)

. . . . -744.3215.... . . .

SMITH, v. J. SMITH,, 224 So. 3d 740 (Fla. 2017)

. . . Under the plain and reasonable meaning of section 744.3215(2)(a), Florida Statutes, an incapacitated . . . Specifically, section 744.3215(2)(a) provides the following: (2) Rights that may be removed from a person . . . Consistent with section 744.3215(2)(a), the trial court issued the following order when removing Smith . . . See majority op. at 747 (“In the context of section 744.3215(2)(a), ‘the right to marry is subject to . . . To summarize, the plain meaning of section 744.3215(2)(a) requires an incapacitated person, who has had . . . The right to marry falls within the latter category, under section 744.3215(2)(a), which provides: (2 . . . Judge Warner disagreed with the majority’s interpretation of section 744.3215(2)(a). . . . The certified question asks whether the failure to obtain court approval pursuant to section 744.3215 . . . Plain Language of Section 744.3215(2)(a) The plain language of section 744.3215(2)(a) reflects that the . . . This provision tracks the language in section 744.3215(2)(a). . . . .

SMITH, v. J. SMITH,, 195 So. 3d 416 (Fla. Dist. Ct. App. 2016)

. . . Section 744.3215(2), Florida Statutes (2013), which requires court approval of a marriage of a ward, . . . following question: Where the fundamental right to marry has not been removed from a ward under section 744.3215 . . .

SMITH, v. J. SMITH,, 199 So. 3d 911 (Fla. Dist. Ct. App. 2016)

. . . Section 744.3215 of the Florida Statutes outlines the rights which a person determined incapacitated . . . retains and those which may be removed. § 744.3215, Fla. . . . The order appointing the plenary guardian mirrored section 744.3215(2)(a). . . . In construing section 744.3215(2)(a)’s limitations on a ward’s right to marry, we must give the statute . . . Based on the foregoing, the court’s interpretation of section 744.3215(2)(a) was correct: at the time . . . I write only to add that even if section 744.3215(2)(a), Florida Statutes (2013), was read to allow court . . . had been substituted as the petitioning party, moved for summary judgment on the ground that section 744.3215 . . . Section 744.3215(2)(a), Florida Statutes (2013), does provide that where the right to contract has been . . .

LUTHERAN SERVICES FLORIDA, INC. v. DEPARTMENT OF CHILDREN AND FAMILIES,, 199 So. 3d 286 (Fla. Dist. Ct. App. 2015)

. . . Pursuant to subsections 744.3215(2)(c) and (3)(c) and (f), Florida Statutes (2003), Mr. . . .

Q. SILVEIRA, v. QUIROGA,, 156 So. 3d 574 (Fla. Dist. Ct. App. 2015)

. . . Each member agreed that Ana Maria is incapacitated, see § 744.3215(2), (3), Fla. . . .

BIVINS, v. ROGERS,, 147 So. 3d 549 (Fla. Dist. Ct. App. 2014)

. . . See § 744.3215(3)(e), Fla. Stat. (2012). . . .

In GUARDIANSHIP OF RAWL, M. v. R., 133 So. 3d 1179 (Fla. Dist. Ct. App. 2014)

. . . . § 744.3215(2), (3). . . . .

SHEN, s h a v. PARKES,, 100 So. 3d 1189 (Fla. Dist. Ct. App. 2012)

. . . must determine the alleged incapacitated person’s ability to exercise those rights specified in s. 744.3215 . . .

AUXIER, v. JEROME GOLDEN CENTER FOR BEHAVIORAL HEALTH, 85 So. 3d 1164 (Fla. Dist. Ct. App. 2012)

. . . . § 744.3215(1)(£), Fla. Stat. (2011); see also In re Beverly, 342 So.2d 481, 489 (Fla. 1977). . . . . § 744.3215(4)(a), Fla. Stat. (2011). . . .

In AMENDMENTS TO FLORIDA PROBATE RULES, 986 So. 2d 576 (Fla. 2008)

. . . . § 744.3215, Fla. Stat. Rights of persons determined incapacitated. § 744.441, Fla. Stat. . . . Capacity; appointment of guardian advocate. § 744.3215(4), Fla. Stat. . . .

In AMENDMENTS TO THE FLORIDA PROBATE RULES, 964 So. 2d 140 (Fla. 2007)

. . . . § 744.3215, Fla. Stat. Rights of persons determined incapacitated. § 744.441, Fla. Stat. . . .

J. SCANNAVINO, v. FLORIDA DEPARTMENT OF CORRECTIONS,, 242 F.R.D. 662 (M.D. Fla. 2007)

. . . Section 744.3215(3)(b), Florida Statutes, provides that the right “to sue and defend lawsuits ... may . . . Stat. § 744.3215(3)(b) (2006). . . .

In AMENDMENTS TO THE FLORIDA PROBATE RULES, 948 So. 2d 735 (Fla. 2007)

. . . . § 744.3215, Fla. Stat. Rights of persons determined incapacitated. § 744.441, Fla. Stat. . . .

K. A. S. T. J. M. G. M. v. R. E. T. S. L. T. Co- T. J. M., 914 So. 2d 1056 (Fla. Dist. Ct. App. 2005)

. . . Counsel for [the Grandmother] also asserts that the [W]ard, pursuant to § 744.3215(l)(m), Fla. . . . Although there is no case law construing the statute, section 744.3215(l)(m) suggests that the discretion . . .

In GUARDIANSHIP OF H. SAPP. O v., 868 So. 2d 687 (Fla. Dist. Ct. App. 2004)

. . . those rights may include: (1) At least in some instances, to apply for government benefits, section 744.3215 . . . (3)(c); (2) To determine the ward’s residence, section 744.3215(3)(e); (3) To consent to medical and . . . mental health treatment on behalf of the ward, section 744.3215(3)(f); and (4) To make decisions about . . . the ward’s social environment or other social aspects of his or her life, section 744.3215(3)(g). . . .

In GUARDIANSHIP OF J. D. S. v., 864 So. 2d 534 (Fla. Dist. Ct. App. 2004)

. . . Section 744.3215(4), Florida Statutes, states in pertinent part: Without first obtaining specific authority . . . part: Before the court may grant authority to a guardian to exercise any of the rights specified in s. 744.3215 . . . . § 744.3215(4)(e), Fla. Stat. (2003). . § 744.3725, Fla. Stat. (2003). . § 744.107, Fla. . . .

AMENDMENTS TO THE FLORIDA PROBATE RULES, 848 So. 2d 1069 (Fla. 2003)

. . . Statutory References § 744.3215, Fla,' Stat. . . .

SMITH v. J. LYNCH F., 821 So. 2d 1197 (Fla. Dist. Ct. App. 2002)

. . . .” § 744.3215(3)(a)-(g), Fla. Stat. (2001). . . .

C. VICK, v. G. BAILEY B., 777 So. 2d 1005 (Fla. Dist. Ct. App. 2000)

. . . See § 744.3215(l)(b), (c), Fla. Stat. (2000). . . .

MOGUL, v. MOGUL,, 730 So. 2d 1287 (Fla. Dist. Ct. App. 1999)

. . . See §§ 744.3215(4)(c) & 744.3725, Fla. Stat. (1997). See also Vaughan v. . . .

VAUGHAN, v. GUARDIANSHIP OF VAUGHAN,, 648 So. 2d 193 (Fla. Dist. Ct. App. 1994)

. . . The appellant Norma Vaughan contends that section 61.052 and section 744.3215, when read together, are . . . guardian’s right to initiate dissolution proceedings on behalf of his ward is supported by section 744.3215 . . . (4)(c) of the guardianship statutes: 744.3215 Rights of persons determined incapacitated.— (4) Without . . . from section 61.052 that the guardian’s authority to initiate the dissolution is derived, not section 744.3215 . . .

VAUGHAN, v. VAUGHAN,, 630 So. 2d 1150 (Fla. Dist. Ct. App. 1993)

. . . See §§ 744.3215(4), 744.3725 and 61.052(l)(b). . . .

In GUARDIANSHIP OF D. MURPHEY, D. MURPHEY, v. CATHOLIC CHARITIES OF DIOCESE OF PALM BEACH, INC., 630 So. 2d 591 (Fla. Dist. Ct. App. 1993)

. . . Section 744.3215, Florida Statutes (1991), provides in subsection (3): (3) Rights that may be removed . . .

In AMENDMENTS TO FLORIDA PROBATE RULES, 607 So. 2d 1306 (Fla. 1992)

. . . Statutory References § 744.3215(4), Fla.Stat. . . .

LeWINTER, v. GUARDIANSHIP LeWINTER,, 606 So. 2d 387 (Fla. Dist. Ct. App. 1992)

. . . incapable of fully exercising his rights to manage his property and to consent to medical treatment, §§ 744.3215 . . . not disputed that he was fully capable of exercising each of the other rights referred to in sections 744.3215 . . . See § 744.3215(2), (3), Fla.Stat. (1991). Attached to the report were two addendums from Dr. . . .

In GUARDIANSHIP OF B. BOCKMULLER SALMON A. v. HARRIS, BARRETT, MANN DEW, P. A., 602 So. 2d 608 (Fla. Dist. Ct. App. 1992)

. . . Section 744.3215(1)(Z) does give Mary the right to counsel. . . . See §§ 744.3215(3)(a), 744.464(2)(e), Fla. Stat. (1989). . . .

GLATTHAR, v. E. HOEQUIST,, 600 So. 2d 1205 (Fla. Dist. Ct. App. 1992)

. . . Glatthar concedes that under section 744.3215(l)(o), Florida Statutes (1991) an incapacitated person . . .

GODWIN, v. STATE, 593 So. 2d 211 (Fla. 1992)

. . . . § 744.3215(2)(b), Fla.Stat. (Supp. 1990). . . . to marry, to personally apply for government benefits, to travel, or to seek or retain employment. § 744.3215 . . . to consent to medical treatment, and the right to make decisions about social matters in general. § 744.3215 . . .

In AMENDMENTS TO THE FLORIDA PROBATE RULES, 584 So. 2d 964 (Fla. 1991)

. . . person’s attending or family physician, if known; (4)(5) state which of-the rights enumerated in F.S, 744.3215 . . . Statutory References § 744.3215, Fla.Stat. . . .

IN RE GUARDIANSHIP OF MARGARET M. ANDERSON, 47 Fla. Supp. 2d 176 (Fla. Cir. Ct. 1991)

. . . finally Shutts & Bowen take the position they have a statutory legal right pursuant to Florida Statute 744.3215 . . . The issue confronting this court is interpreting the statutory provision contained in F.S. 744.3215(1 . . .

LEFEBVRE, v. NORTH BROWARD HOSPITAL DISTRICT, d b a, 566 So. 2d 568 (Fla. Dist. Ct. App. 1990)

. . . Furthermore, section 744.3215(4)(e), Florida Statutes (1989), provides that without first obtaining specific . . . before the court may grant authority to a guardian to exercise any of the rights specified in section 744.3215 . . . Since there are Florida statutes (sections 390.001(4), 744.331, 744.3215(4)(e), and 744.3725) which apply . . . See section 744.3215(4), Fla.Stat. (1989). . . .

In AMENDMENT TO FLORIDA PROBATE RULE- PART III GUARDIANSHIP, 551 So. 2d 452 (Fla. 1989)

. . . knowledge of such facts through personal observation; (4) state which of the rights enumerated in F.S. 744.3215 . . .