House Bill 3923e2

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                                         HB 3923, Second 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, Second 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. 744.1085, F.S.;

  7         revising language with respect to professional

  8         guardians to include reference to the Statewide

  9         Public Guardianship Office; amending s.

10         744.3135, F.S.; providing a procedure for

11         obtaining fingerprint cards and for maintaining

12         the results of certain investigations; amending

13         s. 28.241, F.S.; providing for funds for public

14         guardians; providing for an appropriation;

15         providing for a transfer of resources between

16         agencies; providing an effective date.

17

18         WHEREAS, the Legislature has recognized that private

19  guardianship is inadequate when there is no willing and

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

21  corporation available to serve as guardian for an

22  incapacitated person, and such person does not have adequate

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

24  and

25         WHEREAS, a few judicial circuits have been able to

26  establish public guardianship programs to provide guardianship

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

28  additional circuits would like to have public guardians

29  available, and

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                                         HB 3923, Second Engrossed



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

  2  going without this service which is necessary for the exercise

  3  of an incapacitated person's constitutional rights, and

  4         WHEREAS, the Legislature recognizes the need for a

  5  statewide office to assist in finding ways to meet the

  6  guardianship needs of incapacitated citizens, and

  7         WHEREAS, there is a growing problem in Florida

  8  involving functionally incapacitated persons who are unable to

  9  access needed services, and

10         WHEREAS, the magnitude of this compelling problem

11  demands legislative action to protect our state's most

12  vulnerable citizens, NOW, THEREFORE,

13

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

15

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

17  Florida Statutes, are amended to read:

18         744.369  Judicial review of guardianship reports.--

19         (1)  The court shall review the initial guardianship

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

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

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

23  clerk's report of findings to the court.

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

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

26  require the general or special master to conduct random field

27  audits.

28         Section 2.  Section 744.702, Florida Statutes, is

29  amended to read:

30         744.702  Legislative intent.--The Legislature finds

31  that private guardianship is inadequate where there is no


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                                         HB 3923, Second Engrossed



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

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

  3  incapacitated person, and such person does not have adequate

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

  5  The Legislature intends through this act to establish the

  6  Statewide Public Guardianship Office, and permit the

  7  establishment of offices office of public guardian for the

  8  purpose of providing guardianship services for incapacitated

  9  persons when no private guardian is available. The Legislature

10  further finds that alternatives to guardianship and less

11  intrusive means of assistance should always be explored,

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

13  individual's rights are removed through an adjudication of

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

15  public guardian only to those persons whose needs cannot be

16  met through less drastic means of intervention. The Statewide

17  Public Guardianship Office may have the assistance of the

18  Inspector General of the Department of Elderly Affairs in

19  providing auditing services, and the Office of General Counsel

20  of the department shall provide assistance in rulemaking and

21  other matters as needed to assist the Statewide Public

22  Guardianship Office. The executive director of the Statewide

23  Public Guardianship Office shall establish a curriculum

24  committee to develop the training program specified in this

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

26  limited to, probate judges.

27         Section 3.  Section 744.7021, Florida Statutes, is

28  created to read:

29         744.7021  Statewide Public Guardianship Office.--There

30  is hereby created the Statewide Public Guardianship Office

31  within the Department of Elderly Affairs. The Department of


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                                         HB 3923, Second Engrossed



  1  Elderly Affairs shall provide administrative support and

  2  service to the office to the extent requested by the executive

  3  director within the available resources of the department. The

  4  Statewide Public Guardianship Office shall not be subject to

  5  control, supervision, or direction by the Department of

  6  Elderly Affairs in the performance of its duties.

  7         (1)  The head of the Statewide Public Guardianship

  8  Office is the executive director who shall be appointed by the

  9  Governor. The executive director must be a licensed attorney

10  with a background in guardianship law and knowledge of social

11  services available to meet the needs of incapacitated persons,

12  shall serve on a full-time basis, and shall personally, or

13  through representatives of the office, carry out the purposes

14  and functions of the Statewide Public Guardianship Office in

15  accordance with state and federal law. The executive director

16  shall serve at the pleasure of and report to the Governor.

17         (2)  The Statewide Public Guardianship Office shall

18  within available resources have oversight responsibilities for

19  all public guardians.

20         (a)  The office shall review the current public

21  guardian programs in Florida and other states.

22         (b)  The office, in consultation with local

23  guardianship offices, shall develop statewide performance

24  measures and standards.

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

26  funding guardianship programs, the kinds of services being

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

28  In addition, the office shall review and make recommendations

29  regarding the feasibility of recovering a portion or all of

30  the costs of providing public guardianship services from the

31  assets or income of the wards.


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                                         HB 3923, Second Engrossed



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

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

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

  4  of the Supreme Court an interim report describing the progress

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

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

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

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

  9  of the Supreme Court a proposed public guardianship plan

10  including alternatives for meeting the state's guardianship

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

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

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

14  thereafter, the office shall provide a status report and

15  provide further recommendations to address the need for public

16  guardianship services and related issues.

17         (e)  The office may provide assistance to local

18  governments or entities in pursuing grant opportunities. The

19  office shall review and make recommendations in the annual

20  report on the availability and efficacy of seeking Medicaid

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

22  existing programs and services to meet the needs of public

23  wards.

24         (f)  The office shall develop a guardianship training

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

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

27  guardians in order to defray the cost of providing the

28  training.

29         (3)  The office may conduct or contract for

30  demonstration projects, within funds appropriated or through

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


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                                         HB 3923, Second Engrossed



  1  determine the feasibility or desirability of new concepts of

  2  organization, administration, financing, or service delivery

  3  designed to preserve the civil and constitutional rights of

  4  indigent persons of marginal or diminished capacity due to the

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

  6  related memory disorders, organic brain damage, or other

  7  physical, mental, or emotional dysfunctioning. The

  8  demonstration projects should endeavor to address emergency

  9  needs of affected persons prior to judicial intervention, to

10  utilize alternatives to guardianship, when possible, and to

11  develop innovative linkages between existing programs and

12  services including those funded through the Department of

13  Elderly Affairs Alzheimer's Disease Initiative and related

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

15  enforcement.

16         (4)  The office may promulgate rules pursuant to the

17  requirements of chapter 120 to carry out the provisions of

18  this section.

19         Section 4.  Section 744.703, Florida Statutes, is

20  amended to read:

21         744.703  Office of public guardian; appointment,

22  notification.--

23         (1)  The executive director of the Statewide Public

24  Guardianship Office The chief judge of the judicial circuit,

25  after consultation with the chief judge and other circuit

26  judges within the judicial circuit and with appropriate

27  advocacy groups and individuals and organizations who are

28  knowledgeable about the needs of incapacitated persons, may

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

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

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


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                                         HB 3923, Second Engrossed



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

  2  process and knowledge of social services available to meet the

  3  needs of incapacitated persons.  A nonprofit corporation under

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

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

  6  United States Internal Revenue Service; and

  7         (b)  It maintains a staff of professionally qualified

  8  individuals to carry out the guardianship functions, including

  9  a staff attorney who has experience in probate areas and

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

11  gerontologist, psychologist, registered nurse, or nurse

12  practitioner.

13         (2)  The executive director chief judge shall appoint

14  the public guardian from the list of candidates described in

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

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

17  appointment of the public guardian, the executive director

18  chief judge shall notify the chief judge of the judicial

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

20  in writing, of the appointment.

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

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

23  guardian may be appointed at reduced compensation.

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

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

26  interest.

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

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

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

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

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


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                                         HB 3923, Second Engrossed



  1  If a public guardian is suspended, the executive director

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

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

  4  a permanent replacement is selected. A public guardian may be

  5  removed from office during the term of office only by the

  6  executive director who must consult with the chief judge prior

  7  to said removal. A recommendation of removal made by the chief

  8  judge must be considered by the executive director. Removal of

  9  the public guardian from office during the term of office must

10  be by the chief judge. This section does not limit the

11  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, Second 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, Second 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, Second 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, Second 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  prospective professional guardian shall pay to the clerk of

15  the court a fee of $5 for handling and processing professional

16  guardian files. The results of the fingerprint checks shall be

17  forwarded to the clerk of court who shall maintain the results

18  in a guardian file and shall make the results available to the

19  court. If credit or criminal investigations are required, the

20  court must consider the results of the investigations in

21  appointing a guardian.

22         Section 10.  Subsection (1) of section 28.241, Florida

23  Statutes, is amended to read:

24         28.241  Filing charges for trial and appellate

25  proceedings.--

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

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

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

29  not more than five defendants and an additional service charge

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

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


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                                         HB 3923, Second Engrossed



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

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

  3  attachment, replevin, and distress. An additional service

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

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

  6  State Treasurer for deposit into the General Revenue Fund

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

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

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

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

11  Supreme Court monthly for deposit in the fund.  Service

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

13  governing authority of the county by ordinance or by special

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

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

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

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

18  service charges are collected; to provide and maintain

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

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

21  by special or local law, a fee of up to $15 $10 for each civil

22  action filed, for the establishment, maintenance, or

23  supplementation of a public guardian pursuant to ss.

24  744.701-744.708, inclusive.  Postal charges incurred by the

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

26  registered mail on defendants or other parties shall be paid

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

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

29  local or special law applied to the special purposes shall

30  constitute the total service charges of the clerk of such

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


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                                         HB 3923, Second Engrossed



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

  2  charges and fees permitted under this subsection may not

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

  4  order to provide for the establishment, maintenance, or

  5  supplementation of a public guardian as indicated in this

  6  subsection.

  7         Section 11.  There is hereby appropriated from the

  8  General Revenue fund in a lump sum to the Department of Elder

  9  Affairs the sum of $300,000 in order to carry out the purposes

10  of this act.

11         Section 12.  All powers, duties and functions, records,

12  personnel, property, and unexpended balances of

13  appropriations, allocations, or other funds relating to the

14  public guardianship program under Chapter 744, Florida

15  Statutes, are transferred by a type two transfer, as defined

16  in s. 20.06(2), Florida Statutes, from the Circuit Court

17  budget entity within the Judicial Branch to the Department of

18  Elder Affairs.

19         Section 13.  This act shall take effect October 1,

20  1998.

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