Florida Senate - 2015 CS for SB 318
By the Committee on Judiciary; and Senators Diaz de la Portilla
and Detert
590-02152-15 2015318c1
1 A bill to be entitled
2 An act relating to guardianship proceedings; amending
3 s. 709.2109, F.S.; revising the conditions under which
4 an agent’s power of attorney is terminated or
5 suspended or continues; amending s. 709.2119, F.S.;
6 revising the contents of an affidavit by an agent to a
7 third person; creating s. 744.1065, F.S.; authorizing
8 a court to refer guardianship matters to mediation or
9 alternative dispute resolution under certain
10 circumstances; amending ss. 744.107 and 744.1075,
11 F.S.; authorizing a court to appoint the office of
12 criminal conflict and civil regional counsel as a
13 court monitor in guardianship proceedings under
14 certain circumstances; amending s. 744.108, F.S.;
15 providing that fees and costs incurred by specified
16 attorneys in compensation proceedings are payable from
17 the assets of the guardianship estate; providing that
18 expert testimony is not required in proceedings to
19 determine compensation for an attorney or guardian;
20 providing that expert witness fees are payable from
21 the assets of the guardianship estate under certain
22 circumstances; amending s. 744.3025, F.S.; clarifying
23 the circumstances under which a court may appoint a
24 guardian ad litem to represent a minor; clarifying the
25 circumstances under which a court must appoint a
26 guardian ad litem; providing that a settlement of a
27 minor’s claim is subject to certain confidentiality
28 provisions; amending s. 744.3031, F.S.; requiring that
29 a duly noticed hearing be held before the appointment
30 of an emergency temporary guardian; requiring a notice
31 of filing of a petition for appointment of an
32 emergency temporary guardian and a notice for any
33 hearing on the petition to be served on certain
34 persons before a hearing on the petition commences;
35 revising the period for which an emergency temporary
36 guardian may be appointed; prohibiting the final
37 payment of the emergency temporary guardian fees and
38 his or her attorney fees until the final report is
39 filed; requiring a court to issue an order to show
40 cause to an emergency temporary guardian who fails to
41 timely file his or her final report; authorizing a
42 court to take certain actions to protect the ward
43 before a hearing on an order to show cause; requiring
44 a copy of such order to be transmitted to certain
45 parties; authorizing the court to impose sanctions on
46 the emergency temporary guardian or take certain other
47 actions after a show cause hearing; amending s.
48 744.309, F.S.; providing that certain corporations not
49 for profit may act as guardians of a ward; amending s.
50 744.3115, F.S.; requiring the court to specify
51 authority for health care decisions with respect to a
52 ward’s advance directive; requiring a court order
53 revoking or modifying the authority of a health care
54 surrogate to be supported by written findings of fact;
55 amending s. 744.312, F.S.; requiring a court, in
56 determining whom to appoint as a guardian, to consider
57 the wishes of the close relatives of the incapacitated
58 person under certain circumstances; limiting the
59 authority of a court to appoint guardians under
60 certain circumstances; authorizing the court to waive
61 the limitations under certain circumstances;
62 prohibiting the court from appointing a professional
63 guardian as a permanent guardian under certain
64 circumstances; creating s. 744.3203, F.S.; providing
65 for the suspension of a power of attorney during
66 guardianship proceedings under certain circumstances;
67 requiring an expedited hearing on the motion to
68 suspend a power of attorney under certain
69 circumstances; authorizing a court to award reasonable
70 attorney fees and costs to an agent who challenges the
71 suspension of the power of attorney under certain
72 circumstances; amending s. 744.345, F.S.; revising the
73 circumstances under which letters of guardianship must
74 describe the extent to which a guardian is authorized
75 to act on behalf of the ward with regard to an advance
76 directive; creating s. 744.359, F.S.; prohibiting
77 abuse, neglect, or exploitation of a ward by a
78 guardian; requiring the report of abuse, neglect, or
79 exploitation to the Department of Children and
80 Families central abuse hotline; amending s. 744.361,
81 F.S.; revising the powers and duties of a guardian;
82 amending s. 744.367, F.S.; revising the period during
83 which a guardian must file an annual guardianship plan
84 with the court; amending s. 744.369, F.S.; providing
85 for the continuance of a guardian’s authority to act
86 under a last approved annual report under certain
87 circumstances; amending s. 744.3715, F.S.; providing
88 an additional circumstance under which an interested
89 person may petition the court regarding a guardian’s
90 failure to comply with the duties of a guardian;
91 amending s. 744.464, F.S.; establishing the burden of
92 proof for determining restoration of capacity of a
93 ward in pending guardianship cases; requiring the
94 court to make findings of fact in its determination to
95 restore or deny capacity; providing that the ward has
96 the burden of proving by a preponderance of the
97 evidence; requiring a court to advance such cases on
98 the calendar; providing applicability; providing an
99 effective date.
100
101 Be It Enacted by the Legislature of the State of Florida:
102
103 Section 1. Subsection (3) of section 709.2109, Florida
104 Statutes, is amended to read:
105 709.2109 Termination or suspension of power of attorney or
106 agent’s authority.—
107 (3)(a) If a power of attorney is suspended during any
108 person initiates judicial proceedings to determine the
109 principal’s incapacity or for the appointment of a guardian
110 advocate, the authority granted under the power of attorney is
111 suspended until the petition is dismissed or withdrawn or the
112 court enters an order authorizing the agent to exercise one or
113 more powers granted under the power of attorney.
114 (a) If an emergency arises after initiation of proceedings
115 to determine incapacity and before adjudication regarding the
116 principal’s capacity, the agent may petition the court in which
117 the proceeding is pending for authorization to exercise a power
118 granted under the power of attorney. The petition must set forth
119 the nature of the emergency, the property or matter involved,
120 and the power to be exercised by the agent.
121 (b) Notwithstanding the provisions of this section, unless
122 otherwise ordered by the court, a proceeding to determine
123 incapacity does not affect the authority of the agent to make
124 health care decisions for the principal, including, but not
125 limited to, those provided in chapter 765. If the principal has
126 executed a health care advance directive designating a health
127 care surrogate, the terms of the directive control if the
128 directive and the power of attorney are in conflict unless the
129 power of attorney is later executed and expressly states
130 otherwise.
131 Section 2. Paragraphs (a) and (c) of subsection (2) of
132 section 709.2119, Florida Statutes, are amended, and subsection
133 (3) of that section is republished, to read:
134 709.2119 Acceptance of and reliance upon power of
135 attorney.—
136 (2) A third person may require:
137 (a) An agent to execute an affidavit stating where the
138 principal is domiciled; that the principal is not deceased; that
139 there has been no revocation, or partial or complete termination
140 by adjudication of incapacity or by the occurrence of an event
141 referenced in the power of attorney; that the power of attorney
142 is not under a suspension as the result there has been no
143 suspension by initiation of proceedings to determine incapacity,
144 or to appoint a guardian, of the principal; that the agent’s
145 authority has not been terminated by the filing of an action for
146 dissolution or annulment of marriage or legal separation of the
147 agent and principal; and, if the affiant is a successor agent,
148 the reasons for the unavailability of the predecessor agents, if
149 any, at the time the authority is exercised.
150 (c) A written affidavit executed by the agent under this
151 subsection may, but need not, be in the following form:
152
153 STATE OF............
154 COUNTY OF............
155
156 Before me, the undersigned authority, personally appeared
157 ...(agent)... (“Affiant”), who swore or affirmed that:
158 1. Affiant is the agent named in the Power of Attorney
159 executed by ...(principal)... (“Principal”) on ...(date)....
160 2. This Power of Attorney is currently exercisable by
161 Affiant. The principal is domiciled in ...(insert name of state,
162 territory, or foreign country)....
163 3. To the best of Affiant’s knowledge after diligent search
164 and inquiry:
165 a. The Principal is not deceased;
166 b. Affiant’s authority for the specific transaction has not
167 been suspended during by initiation of proceedings to determine
168 incapacity or to appoint a guardian or a guardian advocate;
169 c. Affiant’s authority has not been terminated by the
170 filing of an action for dissolution or annulment of Affiant’s
171 marriage to the principal, or their legal separation; and
172 d. There has been no revocation, or partial or complete
173 termination, of the power of attorney or of Affiant’s authority.
174 4. Affiant is acting within the scope of authority granted
175 in the power of attorney.
176 5. Affiant is the successor to ...(insert name of
177 predecessor agent)..., who has resigned, died, become
178 incapacitated, is no longer qualified to serve, has declined to
179 serve as agent, or is otherwise unable to act, if applicable.
180 6. Affiant agrees not to exercise any powers granted by the
181 Power of Attorney if Affiant attains knowledge that the power of
182 attorney has been revoked, has been partially or completely
183 terminated or suspended, or is no longer valid because of the
184 death or adjudication of incapacity of the Principal.
185
186 ................
187 ...(Affiant)...
188
189 Sworn to (or affirmed) and subscribed before me this ....
190 day of ...(month)..., ...(year)..., by ...(name of person making
191 statement)...
192
193 ...(Signature of Notary Public-State of Florida)...
194
195 ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
196
197 Personally Known OR Produced Identification
198 ...(Type of Identification Produced)...
199 (3) A third person who is asked to accept a power of
200 attorney that appears to be executed in accordance with s.
201 709.2105 may in good faith request, and rely upon, without
202 further investigation:
203 (a) A certified English translation of the power of
204 attorney if the power of attorney contains, in whole or in part,
205 language other than English;
206 (b) An opinion of counsel as to any matter of law
207 concerning the power of attorney if the third person making the
208 request provides in a writing or other record the reason for the
209 request; or
210 (c) The affidavit described in subsection (2).
211 Section 3. Section 744.1065, Florida Statutes, is created
212 to read:
213 744.1065 Mediation; alternative dispute resolution.—At any
214 time, the court may, upon its own motion or the motion of an
215 interested person, refer a matter under the jurisdiction of this
216 chapter to mediation or alternative dispute resolution if the
217 court finds that mediation or alternative dispute resolution is
218 in the best interests of the alleged incapacitated person, ward,
219 or minor.
220 Section 4. Subsection (5) is added to section 744.107,
221 Florida Statutes, to read:
222 744.107 Court monitors.—
223 (5) The court may appoint the office of criminal conflict
224 and civil regional counsel as monitor if the ward is indigent.
225 Section 5. Subsection (6) is added to section 744.1075,
226 Florida Statutes, to read:
227 744.1075 Emergency court monitor.—
228 (6) The court may appoint the office of criminal conflict
229 and civil regional counsel as monitor if the ward is indigent.
230 Section 6. Subsections (5) and (8) of section 744.108,
231 Florida Statutes, are amended, and subsection (9) is added to
232 that section, to read:
233 744.108 Guardian Guardian’s and attorney attorney’s fees
234 and expenses.—
235 (5) All petitions for guardian guardian’s and attorney
236 attorney’s fees and expenses must be accompanied by an itemized
237 description of the services performed for the fees and expenses
238 sought to be recovered.
239 (8) When court proceedings are instituted to review or
240 determine guardian a guardian’s or attorney an attorney’s fees
241 under subsection (2), such proceedings are part of the
242 guardianship administration process and the costs, including
243 costs and attorney fees for the guardian’s attorney, an attorney
244 appointed under s. 744.331(2), or an attorney who has rendered
245 services to the ward, shall be determined by the court and paid
246 from the assets of the guardianship estate unless the court
247 finds the requested compensation under subsection (2) to be
248 substantially unreasonable.
249 (9) With respect to a request for compensation by the
250 guardian, the guardian’s attorney, a person employed by the
251 guardian, an attorney appointed under s. 744.331(2), or an
252 attorney who has rendered services to the ward, the court may
253 determine the compensation to be reasonable without receiving
254 expert testimony. A person or party may offer expert testimony
255 for or against a request for compensation after giving notice to
256 interested persons. If expert testimony is offered, the court
257 shall award reasonable expert witness fees to the prevailing
258 interested person, which must be paid from the assets of the
259 guardianship estate.
260 Section 7. Section 744.3025, Florida Statutes, is amended
261 to read:
262 744.3025 Claims of minors.—
263 (1)(a) The court may appoint a guardian ad litem to
264 represent the minor’s interest before approving a settlement of
265 the minor’s portion of the claim in a any case in which a minor
266 has a claim for personal injury, property damage, wrongful
267 death, or other cause of action in which the gross settlement of
268 the claim exceeds $15,000 if the court believes a guardian ad
269 litem is necessary to protect the minor’s interest.
270 (b) Except as provided in paragraph (e), the court shall
271 appoint a guardian ad litem to represent the minor’s interest
272 before approving a settlement of the minor’s claim in a any case
273 in which the gross settlement involving a minor equals or
274 exceeds $50,000.
275 (c) The appointment of the guardian ad litem must be
276 without the necessity of bond or notice.
277 (d) The duty of the guardian ad litem is to protect the
278 minor’s interests as described in the Florida Probate Rules.
279 (e) A court need not appoint a guardian ad litem for the
280 minor if a guardian of the minor has previously been appointed
281 and that guardian has no potential adverse interest to the
282 minor. A court may appoint a guardian ad litem if the court
283 believes a guardian ad litem is necessary to protect the
284 interests of the minor.
285 (2) Unless waived, the court shall award reasonable fees
286 and costs to the guardian ad litem to be paid out of the gross
287 proceeds of the settlement.
288 (3) A settlement of a claim pursuant to this section is
289 subject to the confidentiality provisions of this chapter.
290 Section 8. Section 744.3031, Florida Statutes, is amended
291 to read:
292 744.3031 Emergency temporary guardianship.—
293 (1) A court, prior to appointment of a guardian but after a
294 petition for determination of incapacity has been filed pursuant
295 to this chapter, and after a duly noticed hearing has been held,
296 may appoint an emergency temporary guardian for the person or
297 property, or both, of an alleged incapacitated person. The court
298 must specifically find that there appears to be imminent danger
299 that the physical or mental health or safety of the person will
300 be seriously impaired or that the person’s property is in danger
301 of being wasted, misappropriated, or lost unless immediate
302 action is taken. The subject of the proceeding or any adult
303 interested in the welfare of that person may apply to the court
304 in which the proceeding is pending for the emergency appointment
305 of a temporary guardian. The powers and duties of the emergency
306 temporary guardian must be specifically enumerated by court
307 order. The court shall appoint counsel to represent the alleged
308 incapacitated person during any such summary proceedings, and
309 such appointed counsel may request that the proceeding be
310 recorded and transcribed.
311 (2) The court may appoint an emergency temporary guardian
312 on its own motion if no petition for appointment of guardian has
313 been filed at the time of entry of an order determining
314 incapacity.
315 (3) Notice of filing of a petition for appointment of an
316 emergency temporary guardian and notice of any hearing on the
317 petition must be served on the alleged incapacitated person and
318 on the alleged incapacitated person’s attorney at least 24 hours
319 before a hearing is held on the petition unless the petitioner
320 demonstrates that substantial harm to the alleged incapacitated
321 person will occur if the 24-hour notice is given.
322 (4)(3) The authority of an emergency temporary guardian
323 expires 60 90 days after the date of appointment or when a
324 guardian is appointed, whichever occurs first. The authority of
325 the emergency temporary guardian may be extended for an
326 additional 60 90 days after a hearing is held and upon a showing
327 that the emergency conditions still exist.
328 (5)(4) The court may issue an injunction, restraining
329 order, or other appropriate writ to protect the physical or
330 mental health or safety of the person who is the ward of the
331 emergency temporary guardianship.
332 (6)(5) The emergency temporary guardian shall take an oath
333 to faithfully perform the duties of a guardian before letters of
334 emergency temporary guardianship are issued.
335 (7)(6) The court may require that, before exercising
336 authority as guardian, the emergency temporary guardian of the
337 property may be required to file a bond in accordance with s.
338 744.351.
339 (8)(7) An emergency temporary guardian’s authority and
340 responsibility begins upon issuance of letters of emergency
341 temporary guardianship in accordance with s. 744.345.
342 (9)(8)(a) An emergency temporary guardian shall file a
343 final report no later than 30 days after the expiration of the
344 emergency temporary guardianship.
345 (b) A court may not authorize any final payment of the
346 emergency temporary guardian fees or the fees of his or her
347 attorney until the final report is filed.
348 (c)1. If the final report is not timely filed, the court
349 shall issue to the emergency temporary guardian an order to show
350 cause which requires the emergency temporary guardian to appear
351 before the court and explain why the court should not take
352 further action. The order must specify the time and place of the
353 hearing within a reasonable time after service of the order to
354 allow for the preparation of a defense.
355 2. At any time before the hearing on the order to show
356 cause, the court may suspend the emergency temporary guardian if
357 he or she has become a successor guardian, appoint a guardian ad
358 litem, or issue any other appropriate order to protect the
359 physical or mental health, safety, or property of the ward. A
360 copy of any such order shall be transmitted by the court or
361 under its direction to all parties at the time of entry of the
362 order or injunction.
363 3. After the hearing on the order to show cause, the court
364 may impose sanctions on the emergency temporary guardian or take
365 any other action authorized by law, including, but not limited
366 to, entering a judgment of contempt; ordering an accounting;
367 freezing assets; referring the case to local law enforcement
368 agencies or the state attorney; filing an abuse, neglect, or
369 exploitation complaint with the Department of Children and
370 Families; and initiating proceedings to remove the emergency
371 temporary guardian if he or she has become a successor guardian.
372 (d)(b) If an emergency temporary guardian is a guardian for
373 the property, the final report must consist of a verified
374 inventory of the property, as provided in s. 744.365, as of the
375 date the letters of emergency temporary guardianship were
376 issued, a final accounting that gives a full and correct account
377 of the receipts and disbursements of all the property of the
378 ward over which the guardian had control, and a statement of the
379 property of the ward on hand at the end of the emergency
380 temporary guardianship. If the emergency temporary guardian
381 becomes the successor guardian of the property, the final report
382 must satisfy the requirements of the initial guardianship report
383 for the guardian of the property as provided in s. 744.362.
384 (e)(c) If the emergency temporary guardian is a guardian of
385 the person, the final report must summarize the activities of
386 the temporary guardian with regard to residential placement,
387 medical condition, mental health and rehabilitative services,
388 and the social condition of the ward to the extent of the
389 authority granted to the temporary guardian in the letters of
390 guardianship. If the emergency temporary guardian becomes the
391 successor guardian of the person, the report must satisfy the
392 requirements of the initial report for a guardian of the person
393 as stated in s. 744.362.
394 (f)(d) A copy of the final report of the emergency
395 temporary guardianship shall be served on the successor guardian
396 and the ward.
397 Section 9. Subsection (1) of section 744.309, Florida
398 Statutes, is amended to read:
399 744.309 Who may be appointed guardian of a resident ward.—
400 (1) RESIDENT.—
401 (a) Any resident of this state who is sui juris and is 18
402 years of age or older is qualified to act as guardian of a ward.
403 (b) A corporation not for profit incorporated pursuant to
404 chapter 617 is qualified to act as guardian of a ward if the
405 corporation is a charitable organization that is exempt from
406 taxation under s. 501(c)(3) of the Internal Revenue Code and the
407 corporation is registered as a professional guardian pursuant to
408 s. 744.1083.
409 (c) A justice or No judge may not shall act as guardian
410 unless after this law becomes effective, except when he or she
411 is related to the ward by blood, marriage, or adoption, or has
412 maintained a close relationship with the ward or the ward’s
413 family, and serves without compensation.
414 Section 10. Section 744.3115, Florida Statutes, is amended
415 to read:
416 744.3115 Advance directives for health care.—In each
417 proceeding in which a guardian is appointed under this chapter,
418 the court shall determine whether the ward, prior to incapacity,
419 has executed any valid advance directive under chapter 765. If
420 any advance directive exists, the court shall specify in its
421 order and letters of guardianship what authority, if any, the
422 guardian shall exercise over the ward with regard to health care
423 decisions and what authority, if any, the surrogate shall
424 continue to exercise over the ward with regard to health care
425 decisions surrogate. Pursuant to the grounds listed in s.
426 765.105, the court, upon its own motion, may, with notice to the
427 surrogate and any other appropriate parties, modify or revoke
428 the authority of the surrogate to make health care decisions for
429 the ward. Any order revoking or modifying the authority of the
430 surrogate must be supported by specific written findings of
431 fact. If the court order provides that the guardian is
432 responsible for making health care decisions for the ward, the
433 guardian shall assume the responsibilities of the surrogate
434 which are provided in s. 765.205. For purposes of this section,
435 the term “health care decision” has the same meaning as in s.
436 765.101.
437 Section 11. Section 744.312, Florida Statutes, is reordered
438 and amended to read:
439 744.312 Considerations in appointment of guardian.—
440 (2)(1) If a guardian cannot be appointed pursuant to
441 subsection (1) Subject to the provisions of subsection (4), the
442 court may appoint any person who is fit and proper and qualified
443 to act as guardian, whether related to the ward or not.
444 (2) The court shall give preference to the appointment of a
445 person who:
446 (a) Is related by blood or marriage to the ward;
447 (b) Has educational, professional, or business experience
448 relevant to the nature of the services sought to be provided;
449 (c) Has the capacity to manage the financial resources
450 involved; or
451 (d) Has the ability to meet the requirements of the law and
452 the unique needs of the individual case.
453 (3) The court shall also consider all of the following:
454 (a) Consider The wishes expressed by an incapacitated
455 person as to who shall be appointed guardian.;
456 (b) Consider The preference of a minor who is at least age
457 14 years of age or over as to who should be appointed guardian.;
458 (c) Consider Any person designated as guardian in any will
459 in which the ward is a beneficiary.
460 (d) The wishes of close relatives of the incapacitated
461 person if the person cannot express a preference.
462 (4) Unless a court appoints a standby or preneed guardian,
463 the court:
464 (a) Must use a rotation system for the appointment of the
465 guardian or support its order appointing a guardian with written
466 findings of fact for each factor in subsections (2) and (3).
467 (b) May not give preference to the appointment of a person
468 under subsection (2) solely based on the fact that the person
469 was appointed by the court to serve as an emergency temporary
470 guardian.
471 (c) May not appoint as the permanent guardian a
472 professional guardian who served as an emergency temporary
473 guardian for the incapacitated person.
474 (5) The limitations in paragraphs (4)(b) and (c) apply only
475 if an interested person objects to the appointment of the
476 guardian. However, the court may waive the limitations if the
477 special requirements of the guardianship demand that the court
478 appoint a guardian who has a special talent or specific prior
479 experience. The court must make specific findings of fact which
480 justify such special requirements, which require an appointment
481 without reference to the limitations in paragraphs (4)(b) and
482 (c).
483 (1)(4) If the person designated is qualified to serve
484 pursuant to s. 744.309, The court shall appoint as guardian any
485 standby guardian or preneed guardian who is qualified as
486 guardian under s. 744.309, unless the court determines that
487 appointing the such person is contrary to the best interests of
488 the ward.
489 Section 12. Section 744.3203, Florida Statutes, is created
490 to read:
491 744.3203 Suspension of power of attorney before incapacity
492 determination.—
493 (1) At any time during proceedings to determine incapacity
494 but before the entry of an order determining incapacity, an
495 alleged incapacitated person’s power of attorney is suspended
496 when the petitioner files a motion stating that a specific power
497 of attorney should be suspended or modified for any of the
498 following grounds:
499 (a) The agent’s decisions are not in accord with the
500 alleged incapacitated person’s known desires.
501 (b) The power of attorney is invalid.
502 (c) The agent has failed to discharge duties, or incapacity
503 or illness renders the agent incapable of discharging duties.
504 (d) The agent has abused powers.
505
506 Grounds for suspending a power of attorney do not include the
507 existence of a dispute between the agent and the petitioner
508 which is more appropriate for resolution in some other forum or
509 a legal proceeding other than a guardianship proceeding.
510 (2) The motion must:
511 (a) Identify one or more of the grounds in subsection (1);
512 (b) Include specific statements of fact showing that
513 grounds exist to justify the relief sought; and
514 (c) Include the following statement: “Under penalties of
515 perjury, I declare that I have read the foregoing motion and
516 that the facts stated in it are true,” followed by the signature
517 of the petitioner.
518 (3) Upon the filing of a response to the motion by the
519 agent under the power of attorney, the court shall schedule the
520 motion for an expedited hearing. Unless an emergency has arisen
521 and the agent’s response sets forth the nature of the emergency,
522 the property or matter involved, and the power to be exercised
523 by the agent, notice must be given to all interested persons,
524 the alleged incapacitated person, and the alleged incapacitated
525 person’s attorney. The court order following the hearing must
526 set forth what powers the agent is permitted to exercise, if
527 any, pending the outcome of the petition to determine
528 incapacity.
529 (4) In addition to any other remedy authorized by law, a
530 court may award reasonable attorney fees and costs to an agent
531 who successfully challenges the suspension of the power of
532 attorney if the petitioner’s motion contains false or incomplete
533 statements, was made in bad faith, or fails to contain
534 sufficient factual allegations.
535 Section 13. Section 744.345, Florida Statutes, is amended
536 to read:
537 744.345 Letters of guardianship.—Letters of guardianship
538 shall be issued to the guardian and shall specify whether the
539 guardianship pertains to the person, or the property, or both,
540 of the ward. The letters must state whether the guardianship is
541 plenary or limited, and, if limited, the letters must state the
542 powers and duties of the guardian. If the guardianship is
543 limited, The letters shall state whether or not and to what
544 extent the guardian is authorized to act on behalf of the ward
545 with regard to any advance directive previously executed by the
546 ward.
547 Section 14. Section 744.359, Florida Statutes, is created
548 to read:
549 744.359 Abuse, neglect, or exploitation by a guardian.—
550 (1) A guardian may not abuse, neglect, or exploit a ward.
551 (2) A guardian commits exploitation when the guardian:
552 (a) Commits fraud in obtaining appointment as a guardian.
553 (b) Abuses his or her powers.
554 (c) Wastes, embezzles, or intentionally mismanages the
555 assets of the ward.
556 (3) A person who believes that a guardian is abusing,
557 neglecting, or exploiting a ward, including criminal
558 exploitation of a ward as prohibited in s. 825.103, shall report
559 the conduct to the central abuse hotline of the Department of
560 Children and Families.
561 Section 15. Section 744.361, Florida Statutes, is amended
562 to read:
563 744.361 Powers and duties of guardian.—
564 (1) The guardian of an incapacitated person is a fiduciary
565 and may exercise only those rights that have been removed from
566 the ward and delegated to the guardian. The guardian of a minor
567 shall exercise the powers of a plenary guardian.
568 (2) The guardian shall act within the scope of the
569 authority granted by the court and as provided by law.
570 (3) The guardian shall act in good faith.
571 (4) The guardian may not act in a manner that is contrary
572 to the ward’s best interests under the circumstances.
573 (5) A guardian who has special skills or expertise, or is
574 appointed in reliance upon the guardian’s representation that
575 the guardian has special skills or expertise, shall use those
576 special skills or expertise when acting on behalf of the ward.
577 (6)(2) The guardian shall file an initial guardianship
578 report in accordance with s. 744.362.
579 (7)(3) The guardian shall file a guardianship report
580 annually in accordance with s. 744.367.
581 (8)(4) The guardian of the person shall implement the
582 guardianship plan.
583 (9)(5) When two or more guardians have been appointed, the
584 guardians shall consult with each other.
585 (10)(6) A guardian who is given authority over any property
586 of the ward shall:
587 (a) Protect and preserve the property and invest it
588 prudently as provided in chapter 518, apply it as provided in s.
589 744.397, and keep clear, distinct, and accurate records of the
590 administration of the ward’s property account for it faithfully.
591 (b) Perform all other duties required of him or her by law.
592 (c) At the termination of the guardianship, deliver the
593 property of the ward to the person lawfully entitled to it.
594 (11)(7) The guardian shall observe the standards in dealing
595 with the guardianship property that would be observed by a
596 prudent person dealing with the property of another, and, if the
597 guardian has special skills or is named guardian on the basis of
598 representations of special skills or expertise, he or she is
599 under a duty to use those skills.
600 (12)(8) The guardian, if authorized by the court, shall
601 take possession of all of the ward’s property and of the rents,
602 income, issues, and profits from it, whether accruing before or
603 after the guardian’s appointment, and of the proceeds arising
604 from the sale, lease, or mortgage of the property or of any
605 part. All of the property and the rents, income, issues, and
606 profits from it are assets in the hands of the guardian for the
607 payment of debts, taxes, claims, charges, and expenses of the
608 guardianship and for the care, support, maintenance, and
609 education of the ward or the ward’s dependents, as provided for
610 under the terms of the guardianship plan or by law.
611 (13) Recognizing that every individual has unique needs and
612 abilities, a guardian who is given authority over a ward’s
613 person shall, as appropriate under the circumstances:
614 (a) Consider the expressed desires of the ward as known by
615 the guardian when making decisions that affect the ward.
616 (b) Allow the ward to maintain contact with family and
617 friends unless the guardian believes that such contact may cause
618 harm to the ward.
619 (c) Not restrict the physical liberty of the ward more than
620 reasonably necessary to protect the ward or another person from
621 serious physical injury, illness, or disease.
622 (d) Assist the ward in developing or regaining his or her
623 own capacity, if medically possible.
624 (e) Notify the court if the guardian believes that the ward
625 has regained capacity and that one or more of the rights that
626 have been removed should be restored to the ward.
627 (f) To the extent applicable, make provision for the
628 medical, mental, rehabilitative, or personal care services for
629 the welfare of the ward.
630 (g) To the extent applicable, acquire a clear understanding
631 of the risks and benefits of a recommended course of health care
632 treatment before making a health care decision.
633 (h) Evaluate the ward’s medical and health care options,
634 financial resources, and desires when making residential
635 decisions that are best suited for the current needs of the
636 ward.
637 (i) Advocate on behalf of the ward in institutional and
638 other residential settings and regarding access to home and
639 community-based services.
640 (j) Acquire an understanding of the available residential
641 options and give priority to home and other community-based
642 services and settings when not inconsistent with the person’s
643 goals, needs, and preferences.
644 (14)(9) A professional guardian must ensure that each of
645 the guardian’s wards is personally visited by the guardian or
646 one of the guardian’s professional staff at least once each
647 calendar quarter. During the personal visit, the guardian or the
648 guardian’s professional staff person shall assess:
649 (a) The ward’s physical appearance and condition.
650 (b) The appropriateness of the ward’s current living
651 situation.
652 (c) The need for any additional services and the necessity
653 for continuation of existing services, taking into consideration
654 all aspects of social, psychological, educational, direct
655 service, health, and personal care needs.
656 (d) The nature and extent of visitation and communication
657 with the ward’s family and friends.
658
659 This subsection does not apply to a professional guardian who
660 has been appointed only as guardian of the property.
661 Section 16. Subsection (1) of section 744.367, Florida
662 Statutes, is amended to read:
663 744.367 Duty to file annual guardianship report.—
664 (1) Unless the court requires filing on a calendar-year
665 basis, each guardian of the person shall file with the court an
666 annual guardianship plan at least 60 days, but no more than
667 within 90 days, before after the last day of the anniversary
668 month that the letters of guardianship were signed, and the plan
669 must cover the coming fiscal year, ending on the last day in
670 such anniversary month. If the court requires calendar-year
671 filing, the guardianship plan for the forthcoming calendar year
672 must be filed on or after September 1, but no later than
673 December 1, of the current year before April 1 of each year.
674 Section 17. Subsection (8) of section 744.369, Florida
675 Statutes, is amended to read:
676 744.369 Judicial review of guardianship reports.—
677 (8) The approved report constitutes the authority for the
678 guardian to act in the forthcoming year. The powers of the
679 guardian are limited by the terms of the report. The annual
680 report may not grant additional authority to the guardian
681 without a hearing, as provided for in s. 744.331, to determine
682 that the ward is incapacitated to act in that matter. Unless the
683 court orders otherwise, the guardian may continue to act under
684 authority of the last approved report until the forthcoming
685 year’s report is approved.
686 Section 18. Subsection (1) of section 744.3715, Florida
687 Statutes, is amended to read:
688 744.3715 Petition for interim judicial review.—
689 (1) At any time, any interested person, including the ward,
690 may petition the court for review alleging that the guardian is
691 not complying with the guardianship plan, or is exceeding his or
692 her authority under the guardianship plan, is acting in manner
693 contrary to s. 744.361, is denying visitation between the ward
694 and his or her relatives in violation of s. 744.361(13), or and
695 the guardian is not acting in the best interest of the ward. The
696 petition for review must state the nature of the objection to
697 the guardian’s action or proposed action. Upon the filing of any
698 such petition, the court shall review the petition and act upon
699 it expeditiously.
700 Section 19. Paragraphs (a) and (b) of subsection (3) of
701 section 744.464, Florida Statutes, are amended, and subsection
702 (4) is added to that section, to read:
703 744.464 Restoration to capacity.—
704 (3) ORDER OF RESTORATION.—
705 (a) If no objections are filed, and the court is satisfied
706 that with the medical examination establishes by a preponderance
707 of the evidence that restoration of all or some of the ward’s
708 rights is appropriate, the court shall enter an order of
709 restoration of capacity, restoring all or some of the rights
710 that which were removed from the ward in accordance with those
711 findings. The order must be issued within 30 days after the
712 medical report is filed.
713 (b) At the conclusion of a hearing, conducted pursuant to
714 s. 744.1095, the court shall make specific findings of fact and,
715 based on a preponderance of the evidence, enter an order either
716 denying the suggestion of capacity or restoring all or some of
717 the rights that which were removed from the ward. The ward has
718 the burden of proving by a preponderance of the evidence that
719 the restoration of capacity is warranted.
720 (4) TIMELINESS OF HEARING.—The court shall give priority to
721 any suggestion of capacity and shall advance the cause on the
722 calendar.
723 Section 20. The amendments made by this act apply to all
724 proceedings pending on the effective date of this act.
725 Section 21. This act shall take effect upon becoming a law.