Fl. Prob. R. 5.681

As amended through November 4, 2024

Rule 5.681 - RESTORATION OF RIGHTS OF PERSON WITH DEVELOPMENTAL DISABILITY

(a) Suggestion of Restoration of Rights. A suggestion of restoration of rights of a person with a developmental disability may be executed by any interested person, including the person with a developmental disability. The suggestion must contain:

(1) a statement that the person with a developmental disability is capable of exercising some or all of the rights that were granted to the guardian advocate;

(2) if other assistance, including supported decisionmaking agreements, is an alternative to the continued appointment of a guardian advocate;

(3) evidentiary support for the filing as provided by law; and

(4) the name and address of the attorney representing the person with a developmental disability, if any, known to the petitioner.

(b) Counsel. Within 3 days after the suggestion has been filed, the court must appoint an attorney to represent a person with a developmental disability who is not then represented by counsel as stated in the suggestion.

(c) Notice. On filing of the suggestion, if the name and address of the attorney representing the person with a developmental disability is listed in the suggestion, or on the appointment of counsel, if no name and address of an attorney are listed in the suggestion, the clerk must immediately send notice of the filing of the suggestion, together with the suggestion, to the person with a developmental disability, the person's guardian advocate, the person's attorney, the attorney for the guardian advocate, if any, and any other interested person as directed by the court. The notice must contain a statement that all objections to the suggestion must be filed within 20 days after service of the notice. Formal notice must be served on the guardian advocate. Informal notice may be served on the other persons. Notice need not be served on the petitioner. The clerk must file proof of service.

(d) Objections. Any objection must be in writing and must state with particularity each item to which the objection is directed and the grounds on which the objection is based. The objector must serve notice of hearing on the objection and the objection on the person with the developmental disability, the person's attorney, the person's guardian advocate, the attorney for the guardian advocate, if any, the next of kin of the person with a developmental disability, and any other interested persons as directed by the court.

(e) Order. The court must enter an order denying the suggestion or restoring all or some of the rights that were granted to the guardian advocate. If only some rights are restored to the person with a developmental disability, the order must state which rights are restored and amend the letters of guardian advocacy accordingly. The court need not hold a hearing before entering an order restoring rights if no objections are filed and the court is satisfied with the evidentiary support for restoration supplied by the petitioner.

(f) Additional Requirements. If personal rights are restored, the guardian advocate must file an amended plan within 60 days after the order restoring rights. If all property rights are restored, a guardian advocate previously granted management or control over property must file a final accounting within 60 days after the order restoring rights. Any amended plan and accounting must be promptly served on the person with a developmental disability and the person's attorney.

Fl. Prob. R. 5.681

Amended by SC2024-1057, effective 9/5/2024; amended by 287 So.3d 492, effective 1/1/2020; amended by 123 So.3d 31, effective 1/1/2014; added by 986 So.2d 576, effective 7/10/2008.

Committee Notes

Rule History

2008 Revision: New rule.

2013 Revision: Substantial revisions to reflect the designation of the pleading as a Suggestion of Restoration of Rights; the requirement for a statement of evidentiary support, the identification and address of the attorney for the person with a developmental disability; procedures for service of objections; clarification of requirements following a restoration of rights; and editorial changes. Editorial changes to conform to the court's guidelines for rule submissions as set forth in AOSC06-14.

2019 Revision: Committee notes updated to reflect the legislative amendments to chapter 709, Florida Statutes.

2024 Revision: Subdivision (a)(2) amended, and subdivision (a)(4) added to reflect the legislative change to section 744.464, Florida Statutes, for the restoration of rights. 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.

§ 709.2209, Fla. Stat. Supported decisionmaking agreements.

§ 744.464, Fla. Stat. Restoration to capacity.

§ 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. 5.541 Recording of hearings.

Fla. Prob. R. 5.680 Termination of guardianship.