Florida Senate - 2015 SENATOR AMENDMENT
Bill No. CS for CS for SB 318
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LEGISLATIVE ACTION
Senate . House
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Floor: WD .
04/27/2015 09:50 AM .
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Senator Lee moved the following:
1 Senate Amendment (with title amendment)
2
3 Delete lines 98 - 366
4 and insert:
5 (b) A financial institution that has trust powers, has a
6 place of business in this state, and authorization is authorized
7 to conduct trust business in this state.
8 (c) A not-for-profit corporation that complies with the
9 requirements of subparagraphs 1.-7.
10 1. The not-for-profit corporation must be qualified to do
11 business in the state; must be organized for charitable or
12 religious purposes in this state; must have served as a court
13 appointed guardian before January 1, 1996; must be tax-exempt
14 under s. 501(c)(3) of the Internal Revenue Code; may not charge
15 a fee or cost to a principal for services but may be reimbursed
16 for actual expenses; and must serve only principals who reside
17 in communities that provide housing for older persons as defined
18 in s. 760.29(4) and former residents of such communities.
19 2. The not-for-profit corporation must have each principal
20 who signs a power of attorney on or after July 1, 2015 sign a
21 separate written instrument containing the following language in
22 14-point uppercase type:
23
24 I UNDERSTAND THAT THE AGENT IS A NOT-FOR-PROFIT
25 CORPORATION THAT IS NOT CHARGING A FEE FOR SERVICES TO
26 ME (BUT MAY BE REIMBURSED FOR ACTUAL EXPENSES) AND
27 THAT THE INDIVIDUALS THAT WILL PROVIDE ME SERVICES ARE
28 VOLUNTEERS WHO MAY NOT HAVE A STATE LICENSE OR
29 CERTIFICATION.
30
31 I UNDERSTAND THAT THE ASSETS OF THE NOT-FOR-PROFIT
32 CORPORATION MAY NOT BE SUFFICIENT TO COVER LIABILITY
33 ARISING FROM AN ERROR, AN OMISSION, OR ANY INTENTIONAL
34 MISCONDUCT COMMITTED BY A DIRECTOR, OFFICER, EMPLOYEE,
35 VOLUNTEER OR AGENT OF THE CORPORATION.
36
37 3. The not-for-profit corporation must allow the clerk of
38 the circuit court for the circuit in which the corporation
39 maintains its primary place of business to, at any time, audit
40 the books and records of the corporation upon request.
41 4. No person shall act on behalf of the not-for-profit
42 corporation in its role as an agent who:
43 a. Has been convicted of a felony; who, from any incapacity
44 or illness, is incapable of discharging the duties of an agent;
45 or who is otherwise unsuitable to perform the duties of an
46 agent.
47 b. Has been arrested for and is awaiting final disposition
48 of, has been found guilty of, regardless of adjudication, or has
49 entered a plea of nolo contendere or guilty to, any offense
50 involving dishonesty or listed at s. 435.04(2), or similar law
51 of another jurisdiction.
52 c. Has been adjudicated bankrupt in the previous 10 years.
53 d. Provides substantial services to the principal in a
54 professional or business capacity, or is a creditor of the
55 principal, and retains that previous professional or business
56 relationship.
57 e. Is in the employ of any person, agency, government, or
58 corporation that provides service to the principal in a
59 professional or business capacity unless such person so employed
60 is the spouse, adult child, parent, or sibling of the principal
61 or a court determines that the potential conflict of interest is
62 insubstantial and the ability of such person to act on behalf of
63 the not-for-profit corporation in its role as agent would
64 clearly be in the principal’s best interest.
65 5. The not-for-profit corporation shall require all
66 directors, officers, and employees of the not-for-profit
67 corporation, and any person that acts on behalf of the not-for
68 profit corporation in its role as an agent, to submit, at their
69 own expense or at the expense of the corporation, but never at
70 the cost of any principal, to a credit history background check
71 prior to acting as an agent. A credit history background check
72 shall be completed again at least once every 2 years after the
73 initial check. The corporation shall maintain a file on each
74 director, officer, and employee, and any person that acts on
75 behalf of the not-for-profit corporation in its role as an
76 agent, and retain in the file documentation of the result of any
77 credit history background check conducted under this
78 subparagraph. The clerk of court may audit such credit history
79 background files.
80 6. The not-for-profit corporation shall require all
81 directors, officers, and employees of the not-for-profit
82 corporation, and any person that acts on behalf of the not-for
83 profit corporation in its role as an agent, to submit, at their
84 own expense or at the expense of the corporation, but never at
85 the cost of any principal, to a criminal history background
86 check prior to acting as an agent. The corporation shall
87 maintain a file on each director, officer, and employee, and any
88 person that acts on behalf of the not-for-profit corporation in
89 its role as an agent, and retain in the file documentation of
90 the result of any criminal history background check conducted
91 under this subparagraph. The corporation must allow a principal
92 to review the criminal history background check as to any person
93 acting on behalf of such principal. The clerk of court may audit
94 such criminal history background files.
95 7. The not-for-profit corporation must keep on file in the
96 community in which the corporation is acting an updated listing
97 of each person who is authorized to act on behalf of the
98 corporation as an agent, along with a copy of the background
99 check requirements. Any principal may request a copy of the list
100 of authorized persons.
101 8. Any person that acts on behalf of a not-for-profit
102 corporation pursuant to this paragraph in its role as an agent
103 under a power of attorney has a fiduciary responsibility to the
104 principal and must comply with all provisions of this chapter.
105 9. In addition to any other penalty provided by law, any
106 person acting on behalf of a not-for-profit corporation in its
107 role as an agent pursuant to this paragraph is subject to the
108 provisions of s. 825.103.
109 (2) A power of attorney must be signed by the principal and
110 by two subscribing witnesses and be acknowledged by the
111 principal before a notary public or as otherwise provided in s.
112 695.03.
113 (3) If the principal is physically unable to sign the power
114 of attorney, the notary public before whom the principal’s oath
115 or acknowledgment is made may sign the principal’s name on the
116 power of attorney pursuant to s. 117.05(14).
117 Section 2. Subsection (3) of section 709.2109, Florida
118 Statutes, is amended to read:
119 709.2109 Termination or suspension of power of attorney or
120 agent’s authority.—
121 (3) If any person initiates judicial proceedings to
122 determine the principal’s incapacity or for the appointment of a
123 guardian advocate, the authority granted under the power of
124 attorney is suspended until the petition is dismissed or
125 withdrawn or the court enters an order authorizing the agent to
126 exercise one or more powers granted under the power of attorney.
127 However, if the agent named in the power of attorney is the
128 principal’s parent, spouse, child, or grandchild, the authority
129 under the power of attorney is not suspended unless a verified
130 motion in accordance with s. 744.3203 is also filed.
131 (a) If an emergency arises after initiation of proceedings
132 to determine incapacity and before adjudication regarding the
133 principal’s capacity, the agent may petition the court in which
134 the proceeding is pending for authorization to exercise a power
135 granted under the power of attorney. The petition must set forth
136 the nature of the emergency, the property or matter involved,
137 and the power to be exercised by the agent.
138 (b) Notwithstanding the provisions of this section, unless
139 otherwise ordered by the court, a proceeding to determine
140 incapacity does not affect the authority of the agent to make
141 health care decisions for the principal, including, but not
142 limited to, those provided in chapter 765. If the principal has
143 executed a health care advance directive designating a health
144 care surrogate, the terms of the directive control if the
145 directive and the power of attorney are in conflict unless the
146 power of attorney is later executed and expressly states
147 otherwise.
148 Section 3. Subsection (5) is added to section 744.107,
149 Florida Statutes, to read:
150 744.107 Court monitors.—
151 (5) The court may appoint the office of criminal conflict
152 and civil regional counsel as monitor if the ward is indigent.
153 Section 4. Subsection (6) is added to section 744.1075,
154 Florida Statutes, to read:
155 744.1075 Emergency court monitor.—
156 (6) The court may appoint the office of criminal conflict
157 and civil regional counsel as monitor if the ward is indigent.
158 Section 5. Subsections (5) and (8) of section 744.108,
159 Florida Statutes, are amended, and subsection (9) is added to
160 that section, to read:
161 744.108 Guardian Guardian’s and attorney attorney’s fees
162 and expenses.—
163 (5) All petitions for guardian guardian’s and attorney
164 attorney’s fees and expenses must be accompanied by an itemized
165 description of the services performed for the fees and expenses
166 sought to be recovered.
167 (8) When court proceedings are instituted to review or
168 determine a guardian guardian’s or an attorney attorney’s fees
169 under subsection (2), such proceedings are part of the
170 guardianship administration process and the costs, including
171 costs and attorney fees for the guardian’s attorney, an attorney
172 appointed under s. 744.331(2), or an attorney who has rendered
173 services to the ward, shall be determined by the court and paid
174 from the assets of the guardianship estate unless the court
175 finds the requested compensation under subsection (2) to be
176 substantially unreasonable.
177 (9) The court may determine that a request for compensation
178 by the guardian, the guardian’s attorney, a person employed by
179 the guardian, an attorney appointed under s. 744.331(2), or an
180 attorney who has rendered services to the ward is reasonable
181 without receiving expert testimony. A person or party may offer
182 expert testimony for or against a request for compensation after
183 giving notice to interested persons. Reasonable expert witness
184 fees shall be awarded by the court and paid from the assets of
185 the guardianship estate using the standards in subsection (8).
186 Section 6. Section 744.3025, Florida Statutes, is amended
187 to read:
188 744.3025 Claims of minors.—
189 (1)(a) The court may appoint a guardian ad litem to
190 represent the minor’s interest before approving a settlement of
191 the minor’s portion of the claim in a any case in which a minor
192 has a claim for personal injury, property damage, wrongful
193 death, or other cause of action in which the gross settlement of
194 the claim exceeds $15,000 if the court believes a guardian ad
195 litem is necessary to protect the minor’s interest.
196 (b) Except as provided in paragraph (e), the court shall
197 appoint a guardian ad litem to represent the minor’s interest
198 before approving a settlement of the minor’s claim in a any case
199 in which the gross settlement involving a minor equals or
200 exceeds $50,000.
201 (c) The appointment of the guardian ad litem must be
202 without the necessity of bond or notice.
203 (d) The duty of the guardian ad litem is to protect the
204 minor’s interests as described in the Florida Probate Rules.
205 (e) A court need not appoint a guardian ad litem for the
206 minor if a guardian of the minor has previously been appointed
207 and that guardian has no potential adverse interest to the
208 minor. A court may appoint a guardian ad litem if the court
209 believes a guardian ad litem is necessary to protect the
210 interests of the minor.
211 (2) Unless waived, the court shall award reasonable fees
212 and costs to the guardian ad litem to be paid out of the gross
213 proceeds of the settlement.
214 (3) A settlement of a claim pursuant to this section is
215 subject to the confidentiality provisions of this chapter.
216 Section 7. Subsections (2) through (8) of section 744.3031,
217 Florida Statutes, are renumbered as subsections (3) through (9),
218 respectively, a new subsection (2) is added to that section, and
219 present subsection (8) of that section is amended, to read:
220 744.3031 Emergency temporary guardianship.—
221 (2) Notice of filing of the petition for appointment of an
222 emergency temporary guardian and a hearing on the petition must
223 be served on the alleged incapacitated person and on the alleged
224 incapacitated person’s attorney at least 24 hours before the
225 hearing on the petition is commenced, unless the petitioner
226 demonstrates that substantial harm to the alleged incapacitated
227 person would occur if the 24-hour notice is given.
228 (9)(8)(a) An emergency temporary guardian shall file a
229 final report no later than 30 days after the expiration of the
230 emergency temporary guardianship.
231 (b) A court may not authorize any final payment of the
232 emergency temporary guardian fees or the fees of his or her
233 attorney until the final report is filed.
234 (c)(b) If an emergency temporary guardian is a guardian for
235 the property, the final report must consist of a verified
236 inventory of the property, as provided in s. 744.365, as of the
237 date the letters of emergency temporary guardianship were
238 issued, a final accounting that gives a full and correct account
239 of the receipts and disbursements of all the property of the
240 ward over which the guardian had control, and a statement of the
241 property of the ward on hand at the end of the emergency
242 temporary guardianship. If the emergency temporary guardian
243 becomes the successor guardian of the property, the final report
244 must satisfy the requirements of the initial guardianship report
245 for the guardian of the property as provided in s. 744.362.
246 (d)(c) If the emergency temporary guardian is a guardian of
247 the person, the final report must summarize the activities of
248 the temporary guardian with regard to residential placement,
249 medical condition, mental health and rehabilitative services,
250 and the social condition of the ward to the extent of the
251 authority granted to the temporary guardian in the letters of
252 guardianship. If the emergency temporary guardian becomes the
253 successor guardian of the person, the report must satisfy the
254 requirements of the initial report for a guardian of the person
255 as stated in s. 744.362.
256 (e)(d) A copy of the final report of the emergency
257 temporary guardianship shall be served on the successor guardian
258 and the ward.
259
260 ================= T I T L E A M E N D M E N T ================
261 And the title is amended as follows:
262 Delete lines 6 - 43
263 and insert:
264 criteria for such corporations; providing that a
265 person acting on behalf of the corporation in its role
266 as an agent under a power of attorney has a fiduciary
267 responsibility to the principal; amending s. 709.2109,
268 F.S.; requiring the filing of a motion before
269 suspension of a power of attorney in proceedings to
270 determine a principal’s incapacity or for appointment
271 of a guardian advocate under certain circumstances;
272 amending ss. 744.107 and 744.1075, F.S.; authorizing a
273 court to appoint the office of criminal conflict and
274 civil regional counsel as a court monitor in
275 guardianship proceedings; amending s. 744.108, F.S.;
276 providing that fees and costs incurred by an attorney
277 appointed by a court or an attorney who has rendered
278 services to a ward in compensation proceedings are
279 payable from guardianship assets; providing that
280 expert testimony is not required in proceedings to
281 determine compensation for an attorney, a guardian, or
282 a person employed by a guardian; requiring a person
283 offering expert testimony to provide notice to
284 interested persons; providing that reasonable expert
285 witness fees are recoverable; amending s. 744.3025,
286 F.S.; providing that a court may appoint a guardian ad
287 litem to represent a minor if necessary to protect the
288 minor’s interest in a settlement; providing that a
289 settlement of a minor’s claim is subject to certain
290 confidentiality provisions; amending s. 744.3031,
291 F.S.; requiring notice to an alleged incapacitated
292 person and such person’s attorney of a petition for
293 appointment of an emergency temporary guardian before
294 a hearing on the petition commences; providing an
295 exception; prohibiting the final payment of the
296 emergency temporary guardian fees and his or her
297 attorney fees until the final report is filed;
298 amending s.