Senate Bill 1178c1

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    Florida Senate - 1998                           CS for SB 1178

    By the Committee on Judiciary and Senator Forman





    308-2150-98

  1                      A bill to be entitled

  2         An act relating to guardianship; amending s.

  3         744.369, F.S.; extending the time to review

  4         certain reports; authorizing random field

  5         audits; amending s. 744.702, F.S.; providing

  6         legislative intent to establish the Statewide

  7         Public Guardianship Office; directing the

  8         Department of Elderly Affairs to provide

  9         certain services and support; creating s.

10         744.7021, F.S.; providing for the Statewide

11         Public Guardianship Office within the

12         Department of Elderly Affairs; providing for an

13         executive director and oversight

14         responsibilities; requiring submission of a

15         guardianship plan and yearly status reports to

16         the Governor, the President of the Senate, the

17         Speaker of the House of Representatives, and

18         the Chief Justice of the Supreme Court;

19         requiring the office to develop a training

20         program; authorizing demonstration projects;

21         providing for rules; amending s. 744.703, F.S.;

22         providing for the executive director to

23         establish offices of public guardian and to

24         appoint public guardians; providing for

25         transfer of oversight responsibility from the

26         chief judge of the circuit to the office;

27         providing for the suspension of public

28         guardians, as specified; amending s. 744.706,

29         F.S.; providing for the preparation of the

30         budget of the Statewide Public Guardianship

31         Office; amending s. 744.707, F.S.; revising

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  1         provisions with respect to procedures and rules

  2         to include reference to the Statewide Public

  3         Guardianship Office; amending s. 744.708, F.S.;

  4         revising provisions with respect to reports and

  5         standards; providing for the offices of public

  6         guardian to be subject to audits by the Auditor

  7         General; amending s. 744.709, F.S.; providing

  8         that surety bonds can be purchased from funds

  9         appropriated to the Statewide Public

10         Guardianship Office; amending s. 744.1085,

11         F.S.; revising provisions with respect to

12         professional guardians to include reference to

13         the Statewide Public Guardianship Office;

14         amending s. 744.3135, F.S.; providing a

15         procedure for obtaining fingerprint cards and

16         for maintaining the results of certain

17         investigations; amending s. 28.241, F.S.;

18         providing for funds for public guardians;

19         providing an effective date.

20

21         WHEREAS, the Legislature has recognized that private

22  guardianship is inadequate when there is no willing and

23  responsible family member or friend, other person, bank, or

24  corporation available to serve as guardian for an

25  incapacitated person and such person does not have adequate

26  income or wealth for the compensation of a private guardian,

27  and

28         WHEREAS, a few judicial circuits have been able to

29  establish public guardianship programs to provide guardianship

30  services to some of the state's vulnerable citizens, and

31

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  1  additional circuits would like to have public guardians

  2  available, and

  3         WHEREAS, many of the state's vulnerable citizens are

  4  going without this service that is necessary for the exercise

  5  of an incapacitated person's constitutional rights, and

  6         WHEREAS, the Legislature recognizes the need for a

  7  statewide office to assist in finding ways to meet the

  8  guardianship needs of incapacitated citizens, and

  9         WHEREAS, there is a growing problem in Florida

10  involving functionally incapacitated persons who are unable to

11  access needed services, and

12         WHEREAS, the magnitude of this compelling problem

13  demands legislative action to protect our state's most

14  vulnerable citizens, NOW, THEREFORE,

15

16  Be It Enacted by the Legislature of the State of Florida:

17

18         Section 1.  Subsections (1) and (2) of section 744.369,

19  Florida Statutes, are amended to read:

20         744.369  Judicial review of guardianship reports.--

21         (1)  The court shall review the initial guardianship

22  report within 60 days after the filing of the clerk's report

23  of findings to the court.  The court shall review the annual

24  guardianship report within 30 15 days after the filing of the

25  clerk's report of findings to the court.

26         (2)  The court may appoint general or special masters

27  to assist the court in its review function. The court may

28  require the general or special master to conduct random field

29  audits.

30         Section 2.  Section 744.702, Florida Statutes, is

31  amended to read:

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  1         744.702  Legislative intent.--The Legislature finds

  2  that private guardianship is inadequate where there is no

  3  willing and responsible family member or friend, other person,

  4  bank, or corporation available to serve as guardian for an

  5  incapacitated person, and such person does not have adequate

  6  income or wealth for the compensation of a private guardian.

  7  The Legislature intends through this act to establish the

  8  Statewide Public Guardianship Office, and permit the

  9  establishment of offices office of public guardian for the

10  purpose of providing guardianship services for incapacitated

11  persons when no private guardian is available. The Legislature

12  further finds that alternatives to guardianship and less

13  intrusive means of assistance should always be explored,

14  including, but not limited to, guardian advocates, before an

15  individual's rights are removed through an adjudication of

16  incapacity.  The purpose of this legislation is to provide a

17  public guardian only to those persons whose needs cannot be

18  met through less drastic means of intervention. The Statewide

19  Public Guardianship Office may have the assistance of the

20  Inspector General of the Department of Elderly Affairs in

21  providing auditing services, and the Office of General Counsel

22  of the department shall provide assistance in rulemaking and

23  other matters as needed to assist the Statewide Public

24  Guardianship Office. The executive director of the Statewide

25  Public Guardianship Office shall establish a curriculum

26  committee to develop the training program specified in this

27  part. The curriculum committee shall include, but not be

28  limited to, probate judges.

29         Section 3.  Section 744.7021, Florida Statutes, is

30  created to read:

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  1         744.7021  Statewide Public Guardianship Office.--There

  2  is created the Statewide Public Guardianship Office within the

  3  Department of Elderly Affairs. The Department of Elderly

  4  Affairs shall provide administrative support and service to

  5  the office to the extent requested by the executive director

  6  within the available resources of the department. The

  7  Statewide Public Guardianship Office shall not be subject to

  8  control, supervision, or direction by the Department of

  9  Elderly Affairs in the performance of its duties.

10         (1)  The head of the Statewide Public Guardianship

11  Office is the executive director, who shall be appointed by

12  the Governor. The executive director must be a licensed

13  attorney with a background in guardianship law and knowledge

14  of social services available to meet the needs of

15  incapacitated persons, shall serve on a full-time basis, and

16  shall personally, or through representatives of the office,

17  carry out the purposes and functions of the Statewide Public

18  Guardianship Office in accordance with state and federal law.

19  The executive director shall serve at the pleasure of and

20  report to the Governor.

21         (2)  The Statewide Public Guardianship Office shall

22  within available resources have oversight responsibilities for

23  all public guardians.

24         (a)  The office shall review the current public

25  guardian programs in Florida and other states.

26         (b)  The office, in consultation with local

27  guardianship offices, shall develop statewide performance

28  measures and standards.

29         (c)  The office shall review the various methods of

30  funding guardianship programs, the kinds of services being

31  provided by such programs, and the demographics of the wards.

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  1  In addition, the office shall review and make recommendations

  2  regarding the feasibility of recovering a portion or all of

  3  the costs of providing public guardianship services from the

  4  assets or income of the wards.

  5         (d)  No later than October 1, 1999, the office shall

  6  submit to the Governor, the President of the Senate, the

  7  Speaker of the House of Representatives, and the Chief Justice

  8  of the Supreme Court an interim report describing the progress

  9  of the office in meeting the goals as described in this

10  section. No later than October 1, 2000, the office shall

11  submit to the Governor, the President of the Senate, the

12  Speaker of the House of Representatives, and the Chief Justice

13  of the Supreme Court a proposed public guardianship plan

14  including alternatives for meeting the state's guardianship

15  needs. This plan may include recommendations for less than the

16  entire state, may include a phase-in system, and shall include

17  estimates of the cost of each of the alternatives. Each year

18  thereafter, the office shall provide a status report and

19  provide further recommendations to address the need for public

20  guardianship services and related issues.

21         (e)  The office may provide assistance to local

22  governments or entities in pursuing grant opportunities. The

23  office shall review and make recommendations in the annual

24  report on the availability and efficacy of seeking Medicaid

25  matching funds. The office shall diligently seek ways to use

26  existing programs and services to meet the needs of public

27  wards.

28         (f)  The office shall develop a guardianship training

29  program. The training program may be offered to all guardians

30  whether public or private. A fee may be charged to private

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  1  guardians in order to defray the cost of providing the

  2  training.

  3         (3)  The office may conduct or contract for

  4  demonstration projects, within funds appropriated or through

  5  gifts, grants, or contributions for such purposes, to

  6  determine the feasibility or desirability of new concepts of

  7  organization, administration, financing, or service delivery

  8  designed to preserve the civil and constitutional rights of

  9  indigent persons of marginal or diminished capacity due to the

10  infirmities of aging as manifested by Alzheimer's disease or

11  related memory disorders, organic brain damage, or other

12  physical, mental, or emotional dysfunctioning. The

13  demonstration projects should endeavor to address emergency

14  needs of affected persons prior to judicial intervention, to

15  utilize alternatives to guardianship, when possible, and to

16  develop innovative linkages between existing programs and

17  services including those funded through the Department of

18  Elderly Affairs Alzheimer's Disease Initiative and related

19  services, the adult protective services program, and local law

20  enforcement.

21         (4)  The office may adopt rules pursuant to the

22  requirements of chapter 120 to carry out the provisions of

23  this section.

24         Section 4.  Section 744.703, Florida Statutes, is

25  amended to read:

26         744.703  Office of public guardian; appointment,

27  notification.--

28         (1)  The executive director of the Statewide Public

29  Guardianship Office The chief judge of the judicial circuit,

30  after consultation with the chief judge and other circuit

31  judges within the judicial circuit and with appropriate

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  1  advocacy groups and individuals and organizations who are

  2  knowledgeable about the needs of incapacitated persons, may

  3  establish, within a county in the judicial circuit or within

  4  the judicial circuit, an office of public guardian and create

  5  a list of persons best qualified to serve as the public

  6  guardian. The public guardian must have knowledge of the legal

  7  process and knowledge of social services available to meet the

  8  needs of incapacitated persons.  A nonprofit corporation under

  9  s. 744.309(5) may be appointed public guardian only if:

10         (a)  It has been granted tax-exempt status from the

11  United States Internal Revenue Service; and

12         (b)  It maintains a staff of professionally qualified

13  individuals to carry out the guardianship functions, including

14  a staff attorney who has experience in probate areas and

15  another person who has a master's degree in social work, or a

16  gerontologist, psychologist, registered nurse, or nurse

17  practitioner.

18         (2)  The executive director chief judge shall appoint

19  the public guardian from the list of candidates described in

20  subsection (1). A public guardian must meet the qualifications

21  for a guardian as prescribed in s. 744.309(1)(a). Upon

22  appointment of the public guardian, the executive director

23  chief judge shall notify the chief judge of the judicial

24  circuit and the Chief Justice of the Supreme Court of Florida,

25  in writing, of the appointment.

26         (3)  If the needs of the county or circuit do not

27  require a full-time public guardian, a part-time public

28  guardian may be appointed at reduced compensation.

29         (4)  A public guardian, whether full-time or part-time,

30  may not hold any position that would create a conflict of

31  interest.

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  1         (5)  The public guardian is to be appointed for a term

  2  of 4 years, after which her or his appointment must be

  3  reviewed by the executive director chief judge of the circuit,

  4  and may be reappointed for a term of up to 4 years. A public

  5  guardian may be suspended upon the request of the chief judge.

  6  If a public guardian is suspended, the executive director

  7  shall appoint an acting public guardian as soon as possible to

  8  serve until such time as the public guardian is reinstated or

  9  a permanent replacement is selected.  Removal of the public

10  guardian from office during the term of office must be by the

11  executive director after consultation with or upon the

12  recommendation of the chief judge.  This section does not

13  limit the application of ss. 744.474 and 744.477.

14         (6)  Public guardians appointed by a chief judge

15  pursuant to this section may continue in their positions until

16  the expiration of the term pursuant to their agreement with

17  the chief judge. However, oversight of all public guardians

18  shall transfer to the Statewide Public Guardianship Office

19  upon the effective date of this act. The executive director of

20  the Statewide Public Guardianship Office shall be responsible

21  for all future appointments of public guardians pursuant to

22  this act.

23         Section 5.  Section 744.706, Florida Statutes, is

24  amended to read:

25         744.706  Preparation of budget.--Each public guardian

26  shall prepare a budget for the operation of the office of

27  public guardian to be submitted to the Statewide Public

28  Guardianship Office chief judge of the judicial circuit for

29  inclusion in the Department of Elderly Affairs' circuit

30  courts' legislative budget request.  The office of public

31  guardian shall be operated within the limitations of the

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  1  General Appropriations Act and any other funds appropriated by

  2  the Legislature to that particular judicial circuit, subject

  3  to the provisions of chapter 216.  The Department of Elderly

  4  Affairs shall make a separate and distinct request for an

  5  appropriation for the Statewide Public Guardianship Office.

  6  However, this section shall not be construed to preclude the

  7  financing of any operations of the office of the public

  8  guardian by moneys raised through local effort or through the

  9  efforts of the Statewide Public Guardianship Office. All

10  public guardians who are funded in whole or in part by moneys

11  raised through local efforts, grants, or any other source must

12  submit a copy of their budget to the Statewide Public

13  Guardianship Office annually.

14         Section 6.  Section 744.707, Florida Statutes, is

15  amended to read:

16         744.707  Procedures and rules.--The public guardian,

17  subject to the oversight of the Statewide Public Guardianship

18  Office, is authorized to:

19         (1)  Formulate and adopt necessary procedures to assure

20  the efficient conduct of the affairs of the ward and general

21  administration of the office and staff.

22         (2)  Contract for services necessary to discharge the

23  duties of the office.

24         (3)  Accept the services of volunteer persons or

25  organizations and provide reimbursement for proper and

26  necessary expenses.

27         Section 7.  Subsections (3), (4), (5), (7), and (8) of

28  section 744.708, Florida Statutes, are amended to read:

29         744.708  Reports and standards.--

30         (3)  A public guardian shall file an annual report on

31  the operations of the office of public guardian, in writing,

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  1  by September 1 for the preceding fiscal year with the

  2  Statewide Public Guardianship Office, which chief judge of the

  3  judicial circuit who shall have responsibility for supervision

  4  of the operations of the office of public guardian.

  5         (4)  Within 6 months of his or her appointment as

  6  guardian of a ward, the public guardian shall submit to the

  7  clerk of the court for placement in the ward's guardianship

  8  file and to the executive director of the Statewide Public

  9  Guardianship Office the chief judge of the circuit a report on

10  his or her efforts to locate a family member or friend, other

11  person, bank, or corporation to act as guardian of the ward

12  and a report on the ward's potential to be restored to

13  capacity.

14         (5)  An independent audit by a qualified certified

15  public accountant shall be performed at least every 2 years.

16  The audit should include an investigation into the practices

17  of the office for managing the person and property of the

18  wards. A copy of the report shall be submitted to the

19  Statewide Public Guardianship Office. In addition, the offices

20  of public guardian are subject to audits by the Auditor

21  General under s. 11.45.

22         (7)  The ratio for professional staff to wards shall be

23  1 professional to 40 wards.  The Statewide Public Guardianship

24  Office chief judge of the circuit upon application of the

25  public guardian, or upon the court's own motion, may enlarge

26  or recede from the ratio after consultation with the local

27  public guardian and the chief judge of the circuit court for

28  good cause. The basis of the decision to enlarge or recede

29  from the prescribed ratio shall be reported in the annual

30  report to the Governor, the President of the Senate, the

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  1  Speaker of the House of Representatives, and the Chief Justice

  2  of the Supreme Court.

  3         (8)  The term "professional," for purposes of this

  4  part, shall not include the public guardian nor the executive

  5  director of the Statewide Public Guardianship Office.  The

  6  term "professional" shall be limited to those persons who

  7  exercise direct supervision of individual wards under the

  8  direction of the public guardian.

  9         Section 8.  Subsection (3) of section 744.1085, Florida

10  Statutes, is amended to read:

11         744.1085  Regulation of professional guardians;

12  application; bond required; educational requirements;

13  audits.--

14         (3)  Each professional guardian defined in s.

15  744.102(15), on October 1, 1997, must receive a minimum of 40

16  hours of instruction and training by October 1, 1998, or

17  within 1 year after becoming a professional guardian,

18  whichever occurs later.  Each professional guardian must

19  receive a minimum of 16 hours of continuing education every 2

20  calendar years after the year in which the initial 40-hour

21  educational requirement is met.  The instruction and education

22  must be completed through a course approved or offered by the

23  Statewide Public Guardianship Office chief judge of the

24  circuit court and taught by a court-approved organization. The

25  expenses incurred to satisfy the educational requirements

26  prescribed in this section may not be paid with the assets of

27  any ward. This subsection does not apply to any attorney who

28  is licensed to practice law in this state.

29         Section 9.  Section 744.3135, Florida Statutes, is

30  amended to read:

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  1         744.3135  Credit and criminal investigation.--The court

  2  may require a prospective guardian and shall require a

  3  professional guardian, to submit, at his or her own expense,

  4  to an investigation of the prospective guardian's credit

  5  history and an investigatory check by the National Crime

  6  Information Center and the Florida Crime Information Center

  7  systems by means of fingerprint checks by the Department of

  8  Law Enforcement and the Federal Bureau of Investigation. The

  9  court shall waive the credit and criminal investigation for a

10  guardian who is the spouse or child of the ward. The clerk of

11  the court shall obtain fingerprint cards from the Federal

12  Bureau of Investigation and make them available to guardians.

13  Any guardian who is so required by this provision or by the

14  court must have his or her fingerprints taken and shall

15  forward the proper fingerprint card along with the necessary

16  fee to the Florida Department of Law Enforcement for

17  processing. The prospective professional guardian shall pay to

18  the clerk of the court a fee of $5 for handling and processing

19  professional guardian files. The results of the fingerprint

20  checks shall be forwarded to the clerk of court, who shall

21  maintain the results in a guardian file and shall make the

22  results available to the court. If credit or criminal

23  investigations are required, the court must consider the

24  results of the investigations in appointing a guardian.

25         Section 10.  Section 744.709, Florida Statutes, is

26  amended to read:

27         744.709  Surety bond.--Upon taking office, a public

28  guardian shall file a bond with surety as prescribed in s.

29  45.011 to be approved by the clerk. The bond shall be payable

30  to the Governor and the Governor's successors in office, in

31  the penal sum of not less than $5,000 nor more than $25,000,

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  1  conditioned on the faithful performance of all duties by the

  2  guardian.  The amount of the bond shall be fixed by the

  3  majority of the judges within the judicial circuit.  In form

  4  the bond shall be joint and several. The bond shall be

  5  purchased with funding provided in the funds appropriated to

  6  the judicial circuit for the office of public guardian.

  7         Section 11.  Subsection (1) of section 28.241, Florida

  8  Statutes, is amended to read:

  9         28.241  Filing charges for trial and appellate

10  proceedings.--

11         (1)  The party instituting any civil action, suit, or

12  proceeding in the circuit court shall pay to the clerk of that

13  court a service charge of $40 in all cases in which there are

14  not more than five defendants and an additional service charge

15  of $2 for each defendant in excess of five.  An additional

16  service charge of $10 shall be paid by the party seeking each

17  severance that is granted. An additional service charge of $35

18  shall be paid to the clerk for all proceedings of garnishment,

19  attachment, replevin, and distress. An additional service

20  charge of $8 shall be paid to the clerk for each civil action

21  filed, $7 of such charge to be remitted by the clerk to the

22  State Treasurer for deposit into the General Revenue Fund

23  unallocated.  An additional charge of $2.50 shall be paid to

24  the clerk for each civil action brought in circuit or county

25  court, to be deposited into the Court Education Trust Fund;

26  the moneys collected shall be forwarded by the clerk to the

27  Supreme Court monthly for deposit in the fund.  Service

28  charges in excess of those herein fixed may be imposed by the

29  governing authority of the county by ordinance or by special

30  or local law; and such excess shall be expended as provided by

31  such ordinance or any special or local law, now or hereafter

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  1  in force, to provide and maintain facilities, including a law

  2  library, for the use of the courts of the county wherein the

  3  service charges are collected; to provide and maintain

  4  equipment; or for a legal aid program in such county.  In

  5  addition, the county is authorized to impose, by ordinance or

  6  by special or local law, a fee of up to $10 for each civil

  7  action filed, for the establishment, maintenance, or

  8  supplementation of a public guardian pursuant to ss.

  9  744.701-744.708, inclusive.  Postal charges incurred by the

10  clerk of the circuit court in making service by certified or

11  registered mail on defendants or other parties shall be paid

12  by the party at whose instance service is made. That part of

13  the within fixed or allowable service charges which is not by

14  local or special law applied to the special purposes shall

15  constitute the total service charges of the clerk of such

16  court for all services performed by him or her in civil

17  actions, suits, or proceedings.  The sum of all service

18  charges and fees permitted under this subsection may not

19  exceed $200; however, the $200 cap may be increased to $210 in

20  order to provide for the establishment, maintenance, or

21  supplementation of a public guardian as indicated in this

22  subsection.

23         Section 12.  This act shall take effect October 1,

24  1998.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 1178

  3

  4  The Committee Substitute for Senate Bill 1178:

  5  -    Clarifies that public guardians are subject to audit by
         the Auditor General.
  6
    -    Allows reinstatement of a suspended public guardian.
  7
    -    Clarifies that the executive director may remove a public
  8       guardian either after consultation with or upon the
         recommendation of the chief judge, as opposed to the
  9       bill's provision for removal after consultation and with
         the approval of the chief judge.
10
    -    Deletes a provision that a public guardian's surety bond
11       be purchased with funds appropriated for the office of
         public guardian.
12
    -    Requires that guardians who undergo credit and criminal
13       investigations pay to the clerk of court a $5 fee for
         handling and processing.
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