House Bill 3923e1
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HB 3923, First Engrossed
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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HB 3923, First Engrossed
1 language 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 language with respect to reports and
5 standards; providing reference to audits by the
6 Auditor General; amending s. 744.709, F.S.;
7 providing that surety bonds can be purchased
8 from funds appropriated to the Statewide Public
9 Guardianship Office; amending s. 744.1085,
10 F.S.; revising language with respect to
11 professional guardians to include reference to
12 the Statewide Public Guardianship Office;
13 amending s. 744.3135, F.S.; providing a
14 procedure for obtaining fingerprint cards and
15 for maintaining the results of certain
16 investigations; amending s. 28.241, F.S.;
17 providing for funds for public guardians;
18 providing for an appropriation; providing for a
19 transfer of resources between agencies;
20 providing an effective date.
21
22 WHEREAS, the Legislature has recognized that private
23 guardianship is inadequate when there is no willing and
24 responsible family member or friend, other person, bank, or
25 corporation available to serve as guardian for an
26 incapacitated person, and such person does not have adequate
27 income or wealth for the compensation of a private guardian,
28 and
29 WHEREAS, a few judicial circuits have been able to
30 establish public guardianship programs to provide guardianship
31 services to some of the state's vulnerable citizens, and
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HB 3923, First Engrossed
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 which 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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HB 3923, First Engrossed
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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HB 3923, First Engrossed
1 744.7021 Statewide Public Guardianship Office.--There
2 is hereby created the Statewide Public Guardianship Office
3 within the Department of Elderly Affairs. The Department of
4 Elderly Affairs shall provide administrative support and
5 service to the office to the extent requested by the executive
6 director 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 the
12 Governor. The executive director must be a licensed attorney
13 with a background in guardianship law and knowledge of social
14 services available to meet the needs of incapacitated persons,
15 shall serve on a full-time basis, and shall personally, or
16 through representatives of the office, carry out the purposes
17 and functions of the Statewide Public Guardianship Office in
18 accordance with state and federal law. The executive director
19 shall serve at the pleasure of and report to the Governor.
20 (2) The Statewide Public Guardianship Office shall
21 within available resources have oversight responsibilities for
22 all public guardians.
23 (a) The office shall review the current public
24 guardian programs in Florida and other states.
25 (b) The office, in consultation with local
26 guardianship offices, shall develop statewide performance
27 measures and standards.
28 (c) The office shall review the various methods of
29 funding guardianship programs, the kinds of services being
30 provided by such programs, and the demographics of the wards.
31 In addition, the office shall review and make recommendations
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HB 3923, First Engrossed
1 regarding the feasibility of recovering a portion or all of
2 the costs of providing public guardianship services from the
3 assets or income of the wards.
4 (d) No later than October 1, 1999, the office shall
5 submit to the Governor, the President of the Senate, the
6 Speaker of the House of Representatives, and the Chief Justice
7 of the Supreme Court an interim report describing the progress
8 of the office in meeting the goals as described in this
9 section. No later than October 1, 2000, the office shall
10 submit to the Governor, the President of the Senate, the
11 Speaker of the House of Representatives, and the Chief Justice
12 of the Supreme Court a proposed public guardianship plan
13 including alternatives for meeting the state's guardianship
14 needs. This plan may include recommendations for less than the
15 entire state, may include a phase-in system, and shall include
16 estimates of the cost of each of the alternatives. Each year
17 thereafter, the office shall provide a status report and
18 provide further recommendations to address the need for public
19 guardianship services and related issues.
20 (e) The office may provide assistance to local
21 governments or entities in pursuing grant opportunities. The
22 office shall review and make recommendations in the annual
23 report on the availability and efficacy of seeking Medicaid
24 matching funds. The office shall diligently seek ways to use
25 existing programs and services to meet the needs of public
26 wards.
27 (f) The office shall develop a guardianship training
28 program. The training program may be offered to all guardians
29 whether public or private. A fee may be charged to private
30 guardians in order to defray the cost of providing the
31 training.
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HB 3923, First Engrossed
1 (3) The office may conduct or contract for
2 demonstration projects, within funds appropriated or through
3 gifts, grants, or contributions for such purposes, to
4 determine the feasibility or desirability of new concepts of
5 organization, administration, financing, or service delivery
6 designed to preserve the civil and constitutional rights of
7 indigent persons of marginal or diminished capacity due to the
8 infirmities of aging as manifested by Alzheimer's disease or
9 related memory disorders, organic brain damage, or other
10 physical, mental, or emotional dysfunctioning. The
11 demonstration projects should endeavor to address emergency
12 needs of affected persons prior to judicial intervention, to
13 utilize alternatives to guardianship, when possible, and to
14 develop innovative linkages between existing programs and
15 services including those funded through the Department of
16 Elderly Affairs Alzheimer's Disease Initiative and related
17 services, the adult protective services program, and local law
18 enforcement.
19 (4) The office may promulgate rules pursuant to the
20 requirements of chapter 120 to carry out the provisions of
21 this section.
22 Section 4. Section 744.703, Florida Statutes, is
23 amended to read:
24 744.703 Office of public guardian; appointment,
25 notification.--
26 (1) The executive director of the Statewide Public
27 Guardianship Office The chief judge of the judicial circuit,
28 after consultation with the chief judge and other circuit
29 judges within the judicial circuit and with appropriate
30 advocacy groups and individuals and organizations who are
31 knowledgeable about the needs of incapacitated persons, may
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HB 3923, First Engrossed
1 establish, within a county in the judicial circuit or within
2 the judicial circuit, an office of public guardian and create
3 a list of persons best qualified to serve as the public
4 guardian. The public guardian must have knowledge of the legal
5 process and knowledge of social services available to meet the
6 needs of incapacitated persons. A nonprofit corporation under
7 s. 744.309(5) may be appointed public guardian only if:
8 (a) It has been granted tax-exempt status from the
9 United States Internal Revenue Service; and
10 (b) It maintains a staff of professionally qualified
11 individuals to carry out the guardianship functions, including
12 a staff attorney who has experience in probate areas and
13 another person who has a master's degree in social work, or a
14 gerontologist, psychologist, registered nurse, or nurse
15 practitioner.
16 (2) The executive director chief judge shall appoint
17 the public guardian from the list of candidates described in
18 subsection (1). A public guardian must meet the qualifications
19 for a guardian as prescribed in s. 744.309(1)(a). Upon
20 appointment of the public guardian, the executive director
21 chief judge shall notify the chief judge of the judicial
22 circuit and the Chief Justice of the Supreme Court of Florida,
23 in writing, of the appointment.
24 (3) If the needs of the county or circuit do not
25 require a full-time public guardian, a part-time public
26 guardian may be appointed at reduced compensation.
27 (4) A public guardian, whether full-time or part-time,
28 may not hold any position that would create a conflict of
29 interest.
30 (5) The public guardian is to be appointed for a term
31 of 4 years, after which her or his appointment must be
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HB 3923, First Engrossed
1 reviewed by the executive director chief judge of the circuit,
2 and may be reappointed for a term of up to 4 years. A public
3 guardian may be suspended upon the request of the chief judge.
4 If a public guardian is suspended, the executive director
5 shall appoint an acting public guardian as soon as possible to
6 serve until such time as the public guardian is reinstated or
7 a permanent replacement is selected. Removal of the public
8 guardian from office during the term of office must be by the
9 executive director after consultation with or upon the
10 recommendation of the chief judge. This section does not
11 limit the application of ss. 744.474 and 744.477.
12 (6) Public guardians appointed by a chief judge
13 pursuant to this section may continue in their positions until
14 the expiration of the term pursuant to their agreement with
15 the chief judge. However, oversight of all public guardians
16 shall transfer to the Statewide Public Guardianship Office
17 upon the effective date of this act. The executive director of
18 the Statewide Public Guardianship Office shall be responsible
19 for all future appointments of public guardians pursuant to
20 this act.
21 Section 5. Section 744.706, Florida Statutes, is
22 amended to read:
23 744.706 Preparation of budget.--Each public guardian
24 shall prepare a budget for the operation of the office of
25 public guardian to be submitted to the Statewide Public
26 Guardianship Office chief judge of the judicial circuit for
27 inclusion in the Department of Elderly Affairs' circuit
28 courts' legislative budget request. The office of public
29 guardian shall be operated within the limitations of the
30 General Appropriations Act and any other funds appropriated by
31 the Legislature to that particular judicial circuit, subject
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HB 3923, First Engrossed
1 to the provisions of chapter 216. The Department of Elderly
2 Affairs shall make a separate and distinct request for an
3 appropriation for the Statewide Public Guardianship Office.
4 However, this section shall not be construed to preclude the
5 financing of any operations of the office of the public
6 guardian by moneys raised through local effort or through the
7 efforts of the Statewide Public Guardianship Office. All
8 public guardians who are funded in whole or in part by moneys
9 raised through local efforts, grants, or any other source must
10 submit a copy of their budget to the Statewide Public
11 Guardianship Office annually.
12 Section 6. Section 744.707, Florida Statutes, is
13 amended to read:
14 744.707 Procedures and rules.--The public guardian,
15 subject to the oversight of the Statewide Public Guardianship
16 Office, is authorized to:
17 (1) Formulate and adopt necessary procedures to assure
18 the efficient conduct of the affairs of the ward and general
19 administration of the office and staff.
20 (2) Contract for services necessary to discharge the
21 duties of the office.
22 (3) Accept the services of volunteer persons or
23 organizations and provide reimbursement for proper and
24 necessary expenses.
25 Section 7. Subsections (3), (4), (5), (7), and (8) of
26 section 744.708, Florida Statutes, are amended to read:
27 744.708 Reports and standards.--
28 (3) A public guardian shall file an annual report on
29 the operations of the office of public guardian, in writing,
30 by September 1 for the preceding fiscal year with the
31 Statewide Public Guardianship Office chief judge of the
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HB 3923, First Engrossed
1 judicial circuit who shall have responsibility for supervision
2 of the operations of the office of public guardian.
3 (4) Within 6 months of his or her appointment as
4 guardian of a ward, the public guardian shall submit to the
5 clerk of the court for placement in the ward's guardianship
6 file and to the executive director of the Statewide Public
7 Guardianship Office the chief judge of the circuit a report on
8 his or her efforts to locate a family member or friend, other
9 person, bank, or corporation to act as guardian of the ward
10 and a report on the ward's potential to be restored to
11 capacity.
12 (5) An independent audit by a qualified certified
13 public accountant shall be performed at least every 2 years.
14 The audit should include an investigation into the practices
15 of the office for managing the person and property of the
16 wards. A copy of the report shall be submitted to the
17 Statewide Public Guardianship Office. In addition, the office
18 of public guardian shall be subject to audits by the Auditor
19 General pursuant to s. 11.45.
20 (7) The ratio for professional staff to wards shall be
21 1 professional to 40 wards. The Statewide Public Guardianship
22 Office chief judge of the circuit upon application of the
23 public guardian, or upon the court's own motion, may enlarge
24 or recede from the ratio after consultation with the local
25 public guardian and the chief judge of the circuit court for
26 good cause. The basis of the decision to enlarge or recede
27 from the prescribed ratio shall be reported in the annual
28 report to the Governor, the President of the Senate, the
29 Speaker of the House of Representatives, and the Chief Justice
30 of the Supreme Court.
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HB 3923, First Engrossed
1 (8) The term "professional," for purposes of this
2 part, shall not include the public guardian nor the executive
3 director of the Statewide Public Guardianship Office. The
4 term "professional" shall be limited to those persons who
5 exercise direct supervision of individual wards under the
6 direction of the public guardian.
7 Section 8. Subsection (3) of section 744.1085, Florida
8 Statutes, is amended to read:
9 744.1085 Regulation of professional guardians;
10 application; bond required; educational requirements;
11 audits.--
12 (3) Each professional guardian defined in s.
13 744.102(15), on October 1, 1997, must receive a minimum of 40
14 hours of instruction and training by October 1, 1998, or
15 within 1 year after becoming a professional guardian,
16 whichever occurs later. Each professional guardian must
17 receive a minimum of 16 hours of continuing education every 2
18 calendar years after the year in which the initial 40-hour
19 educational requirement is met. The instruction and education
20 must be completed through a course approved or offered by the
21 Statewide Public Guardianship Office chief judge of the
22 circuit court and taught by a court-approved organization. The
23 expenses incurred to satisfy the educational requirements
24 prescribed in this section may not be paid with the assets of
25 any ward. This subsection does not apply to any attorney who
26 is licensed to practice law in this state.
27 Section 9. Section 744.3135, Florida Statutes, is
28 amended to read:
29 744.3135 Credit and criminal investigation.--The court
30 may require a prospective guardian and shall require a
31 professional guardian, to submit, at his or her own expense,
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HB 3923, First Engrossed
1 to an investigation of the prospective guardian's credit
2 history and an investigatory check by the National Crime
3 Information Center and the Florida Crime Information Center
4 systems by means of fingerprint checks by the Department of
5 Law Enforcement and the Federal Bureau of Investigation. The
6 court shall waive the credit and criminal investigation for a
7 guardian who is the spouse or child of the ward. The clerk of
8 the court shall obtain fingerprint cards from the Federal
9 Bureau of Investigation and make them available to guardians.
10 Any guardian who is so required by this provision or by the
11 court shall have his or her fingerprints taken and forward the
12 proper fingerprint card along with the necessary fee to the
13 Florida Department of Law Enforcement for processing. The
14 results of the fingerprint checks shall be forwarded to the
15 clerk of court who shall maintain the results in a guardian
16 file and shall make the results available to the court. If
17 credit or criminal investigations are required, the court must
18 consider the results of the investigations in appointing a
19 guardian.
20 Section 10. Section 744.709, Florida Statutes, is
21 amended to read:
22 744.709 Surety bond.--Upon taking office, a public
23 guardian shall file a bond with surety as prescribed in s.
24 45.011 to be approved by the clerk. The bond shall be payable
25 to the Governor and the Governor's successors in office, in
26 the penal sum of not less than $5,000 nor more than $25,000,
27 conditioned on the faithful performance of all duties by the
28 guardian. The amount of the bond shall be fixed by the
29 majority of the judges within the judicial circuit. In form
30 the bond shall be joint and several.
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HB 3923, First Engrossed
1 Section 11. Subsection (1) of section 28.241, Florida
2 Statutes, is amended to read:
3 28.241 Filing charges for trial and appellate
4 proceedings.--
5 (1) The party instituting any civil action, suit, or
6 proceeding in the circuit court shall pay to the clerk of that
7 court a service charge of $40 in all cases in which there are
8 not more than five defendants and an additional service charge
9 of $2 for each defendant in excess of five. An additional
10 service charge of $10 shall be paid by the party seeking each
11 severance that is granted. An additional service charge of $35
12 shall be paid to the clerk for all proceedings of garnishment,
13 attachment, replevin, and distress. An additional service
14 charge of $8 shall be paid to the clerk for each civil action
15 filed, $7 of such charge to be remitted by the clerk to the
16 State Treasurer for deposit into the General Revenue Fund
17 unallocated. An additional charge of $2.50 shall be paid to
18 the clerk for each civil action brought in circuit or county
19 court, to be deposited into the Court Education Trust Fund;
20 the moneys collected shall be forwarded by the clerk to the
21 Supreme Court monthly for deposit in the fund. Service
22 charges in excess of those herein fixed may be imposed by the
23 governing authority of the county by ordinance or by special
24 or local law; and such excess shall be expended as provided by
25 such ordinance or any special or local law, now or hereafter
26 in force, to provide and maintain facilities, including a law
27 library, for the use of the courts of the county wherein the
28 service charges are collected; to provide and maintain
29 equipment; or for a legal aid program in such county. In
30 addition, the county is authorized to impose, by ordinance or
31 by special or local law, a fee of up to $15 for each civil
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HB 3923, First Engrossed
1 action filed, for the establishment, maintenance, or
2 supplementation of a public guardian pursuant to ss.
3 744.701-744.708, inclusive. Postal charges incurred by the
4 clerk of the circuit court in making service by certified or
5 registered mail on defendants or other parties shall be paid
6 by the party at whose instance service is made. That part of
7 the within fixed or allowable service charges which is not by
8 local or special law applied to the special purposes shall
9 constitute the total service charges of the clerk of such
10 court for all services performed by him or her in civil
11 actions, suits, or proceedings. The sum of all service
12 charges and fees permitted under this subsection may not
13 exceed $200; however, the $200 cap may be increased to $210 in
14 order to provide for the establishment, maintenance, or
15 supplementation of a public guardian as indicated in this
16 subsection.
17 Section 12. There is hereby appropriated from the
18 General Revenue fund in a lump sum to the Department of Elder
19 Affairs the sum of $300,000 in order to carry out the purposes
20 of this act.
21 Section 13. All powers, duties and functions, records,
22 personnel, property, and unexpended balances of
23 appropriations, allocations, or other funds relating to the
24 public guardianship program under Chapter 744, Florida
25 Statutes, are transferred by a type two transfer, as defined
26 in s. 20.06(2), Florida Statutes, from the Circuit Court
27 budget entity within the Judicial Branch to the Department of
28 Elder Affairs.
29 Section 14. This act shall take effect October 1,
30 1998.
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