By Steven C. Fraser, Esq. | FL Bar No. 625825 | DC Bar No. 460026

Most of the Florida Probate Rules deal with property after death. Rule 5.900 deals with a decision that cannot wait for a probate calendar: a patient who is alive, who lacks the capacity to make a medical treatment decision, and whose family, facility, or physicians need a court to decide. It is titled Expedited Judicial Intervention Concerning Medical Treatment Procedures, and it is easy to confuse with the forms that follow it in the rules. It is not a form. It is a short procedure with a built-in clock.

For completeness: Rule 5.900 was not among the rules amended by the Supreme Court's three 2026 orders. Its most recent rule-history entries are the 2020 renumberings, so the text below is the rule as it stands in the October 1, 2026 edition.

Who may start the proceeding

Any interested adult person may bring it. It begins with the filing of a verified petition.

What the petition must state

Under Rule 5.900(a), the petition must state:

  1. the name and address of the petitioner;
  2. the name and location of the person who is the subject of the petition, called "the patient";
  3. the petitioner's relationship to the patient;
  4. the names, relationships, and addresses, if known, of the patient's spouse and adult children; the patient's parents if the patient is a minor; if none of those, the next of kin; any guardian and any court-appointed health care decision-maker; any person designated by the patient in a living will or other document to exercise the patient's health care decision if the patient is incapacitated; the administrator of the hospital, nursing home, or other facility where the patient is located; the patient's principal treating physician and other physicians known to have given any relevant medical opinion or advice; and all other persons the petitioner believes may have information about the patient's expressed wishes; and
  5. facts sufficient to establish the need for the relief requested, including facts supporting the allegation that the patient lacks the capacity to make the requisite medical treatment decision.

The rule history explains that the 1992 revision clarified that the petition should include an allegation that the patient lacks capacity to make the requisite medical treatment decision, and that the patient should receive notice of the petition and hearing.

Supporting documentation

Affidavits and supporting documentation, including any living will or designation of health care decision-maker, must be attached to the petition.

Notice

Unless the court waives it, notice of the petition and the preliminary hearing must be served on each of these persons who has not joined in the petition or otherwise consented: the patient; the patient's spouse (and parents, if the patient is a minor); the patient's adult children; any guardian or court-appointed health care decision-maker; any person designated in a living will or similar document; the administrator of the facility where the patient is located; the principal treating physician and other physicians believed to have given relevant opinions; all other persons the petitioner believes may have information about the patient's wishes; and any others the court directs.

The clock

Subdivision (d) sets two deadlines:

What the committee notes say

The rule was submitted in response to a request in a footnote of In re Guardianship of Browning, 568 So. 2d 4 (Fla. 1990). The notes also refer to Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990). I confirmed both citations on Midpage, CourtListener, and Descrybe. I am citing them only for what the committee notes themselves say about the origin of the rule, not for any holding.

Three cautions in the notes are worth repeating. First, adopting the rule is not intended to imply that judicial intervention is required to terminate life-prolonging procedures. Second, practitioners should note that the criteria and standards of proof in Browning differ from those presently existing in chapter 765, Florida Statutes. Third, the 2019 revision updated the notes to reflect legislative amendments to chapter 709, Florida Statutes, the Florida Power of Attorney Act, which the rule's statutory references list along with chapter 765 and the guardianship definitions and advance-directive provisions.

Practical points

  1. Prepare before filing. The petition has to name people most families do not have written down: the facility administrator, the principal treating physician, and others who may know the patient's wishes. Gather them first, because the hearing is 72 hours away once you file.
  2. Attach the documents. A living will or designation of health care decision-maker belongs with the petition, not in a later exhibit.
  3. Plead incapacity as a fact. The petition has to allege facts supporting the patient's lack of capacity to make the decision at issue.
  4. Read the standard of proof. The rule is a procedure. The substantive criteria and standards of proof come from the case law and statutes the committee notes identify, and the notes themselves flag that the Browning standards differ from chapter 765.
  5. Related guardianship rule. Rule 5.631, the petition by a professional guardian for an order not to resuscitate or to withhold life-prolonging procedures, was among the forty rules in the June 25, 2026 cleanup order. That is a separate rule with its own requirements.

Why this is worth an article

Rule 5.900 is rarely used, which is exactly the problem. When it is needed, it is needed in hours, by people who have not read it. A short, accurate description of what the rule requires, and how fast it moves, is more useful in advance than at the bedside.

Source: Florida Probate Rules (The Florida Bar), October 1, 2026 edition, Rule 5.900, committee notes, rule history, and statutory references; In re Guardianship of Browning, 568 So. 2d 4 (Fla. 1990); Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990).

Steven C. Fraser is admitted in the District of Columbia (1998) and Florida (2003) and practices in bankruptcy, tax controversy, consumer protection, probate, and related litigation. This article summarizes a published court rule. It is not legal or medical advice, and it is not an opinion on any particular patient or case.