House Bill 0213

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    Florida House of Representatives - 1999                 HB 213

        By Representative Crow






  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; creating s.

  8         744.7021, F.S.; providing for the Statewide

  9         Public Guardianship Office within the

10         Department of Elderly Affairs; providing for an

11         executive director and oversight

12         responsibilities; providing for the Department

13         of Elderly Affairs to provide certain services

14         and support; 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 and curriculum committee; authorizing

21         fees; authorizing demonstration projects;

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

23         providing for the executive director to

24         establish offices of public guardian and to

25         appoint public guardians; providing for

26         transfer of oversight responsibility from the

27         chief judge of the circuit to the office;

28         providing for the suspension of public

29         guardians, as specified; amending s. 744.706,

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

31         budget of the Statewide Public Guardianship

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

  2         language with respect to procedures and rules

  3         to include reference to the Statewide Public

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

  5         revising language with respect to reports and

  6         standards; providing reference to audits by the

  7         Auditor General; amending s. 744.1085, F.S.;

  8         revising language with respect to professional

  9         guardians to include reference to the Statewide

10         Public Guardianship Office; amending s.

11         744.3135, F.S.; providing a procedure for

12         obtaining fingerprint cards and for maintaining

13         the results of certain investigations; amending

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

15         guardians; providing an appropriation;

16         providing for the transfer of resources between

17         agencies; providing an effective date.

18

19         WHEREAS, the Legislature has recognized that private

20  guardianship is inadequate when there is no willing and

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

22  corporation available to serve as guardian for an

23  incapacitated person, and such person does not have adequate

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

25  and

26         WHEREAS, a few judicial circuits have been able to

27  establish public guardianship programs to provide guardianship

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

29  additional circuits would like to have public guardians

30  available, and

31

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  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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  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.

17         Section 3.  Section 744.7021, Florida Statutes, is

18  created to read:

19         744.7021  Statewide Public Guardianship Office.--There

20  is hereby created the Statewide Public Guardianship Office

21  within the Department of Elderly Affairs. The Department of

22  Elderly Affairs shall provide administrative support and

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

24  director within the available resources of the department. The

25  Statewide Public Guardianship Office may request the

26  assistance of the Inspector General of the Department of

27  Elderly Affairs in providing auditing services, and the Office

28  of General Counsel of the department may provide assistance in

29  rulemaking and other matters as needed to assist the Statewide

30  Public Guardianship Office. The Statewide Public Guardianship

31  Office shall not be subject to control, supervision, or

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  1  direction by the Department of Elderly Affairs in the

  2  performance of its duties.

  3         (1)  The head of the Statewide Public Guardianship

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

  5  the Governor. The executive director must be a licensed

  6  attorney with a background in guardianship law and knowledge

  7  of social services available to meet the needs of

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

  9  shall personally, or through representatives of the office,

10  carry out the purposes and functions of the Statewide Public

11  Guardianship Office in accordance with state and federal law.

12  The executive director shall serve at the pleasure of and

13  report to the Governor.

14         (2)  The Statewide Public Guardianship Office shall

15  within available resources have oversight responsibilities for

16  all public guardians.

17         (a)  The office shall review the current public

18  guardian programs in Florida and other states.

19         (b)  The office, in consultation with local

20  guardianship offices, shall develop statewide performance

21  measures and standards.

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

23  funding guardianship programs, the kinds of services being

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

25  In addition, the office shall review and make recommendations

26  regarding the feasibility of recovering a portion or all of

27  the costs of providing public guardianship services from the

28  assets or income of the wards.

29         (d)  No later than October 1, 2000, the office shall

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

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

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  1  of the Supreme Court an interim report describing the progress

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

  3  section. No later than October 1, 2001, the office shall

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

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

  6  of the Supreme Court a proposed public guardianship plan

  7  including alternatives for meeting the state's guardianship

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

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

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

11  thereafter, the office shall provide a status report and

12  provide further recommendations to address the need for public

13  guardianship services and related issues.

14         (e)  The office may provide assistance to local

15  governments or entities in pursuing grant opportunities. The

16  office shall review and make recommendations in the annual

17  report on the availability and efficacy of seeking Medicaid

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

19  existing programs and services to meet the needs of public

20  wards.

21         (f)  The office shall develop a guardianship training

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

23  whether public or private. The office shall establish a

24  curriculum committee to develop the training program specified

25  in this part. The curriculum committee shall include, but not

26  be limited to, probate judges. A fee may be charged to private

27  guardians in order to defray the cost of providing the

28  training. In addition, a fee may be charged to any training

29  provider for up to the actual cost of the review and approval

30  of their curriculum. Any fees collected pursuant to this

31  paragraph shall be deposited in the Department of Elderly

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  1  Affairs Administrative Trust Fund to be used for the

  2  guardianship training program.

  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  persons of marginal or diminished capacity. Any gifts, grants,

10  or contributions for such purposes shall be deposited in the

11  Department of Elderly Affairs Administrative Trust Fund.

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

13  requirements of chapter 120 to carry out the provisions of

14  this section.

15         Section 4.  Section 744.703, Florida Statutes, is

16  amended to read:

17         744.703  Office of public guardian; appointment,

18  notification.--

19         (1)  The executive director of the Statewide Public

20  Guardianship Office The chief judge of the judicial circuit,

21  after consultation with the chief judge and other circuit

22  judges within the judicial circuit and with appropriate

23  advocacy groups and individuals and organizations who are

24  knowledgeable about the needs of incapacitated persons, may

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

26  the judicial circuit, an office of public guardian and if so

27  established, shall create a list of persons best qualified to

28  serve as the public guardian. The public guardian must have

29  knowledge of the legal process and knowledge of social

30  services available to meet the needs of incapacitated persons.

31

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  1  A nonprofit corporation under s. 744.309(5) may be appointed

  2  public guardian only if:

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

  4  United States Internal Revenue Service; and

  5         (b)  It maintains a staff of professionally qualified

  6  individuals to carry out the guardianship functions, including

  7  a staff attorney who has experience in probate areas and

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

  9  gerontologist, psychologist, registered nurse, or nurse

10  practitioner.

11         (2)  The executive director chief judge shall appoint

12  the public guardian from the list of candidates described in

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

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

15  appointment of the public guardian, the executive director

16  chief judge shall notify the chief judge of the judicial

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

18  in writing, of the appointment.

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

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

21  guardian may be appointed at reduced compensation.

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

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

24  interest.

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

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

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

28  and may be reappointed for a term of up to 4 years. The

29  executive director may suspend a public guardian with or

30  without the request of the chief judge. If a public guardian

31  is suspended, the executive director shall appoint an acting

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  1  public guardian as soon as possible to serve until such time

  2  as a permanent replacement is selected. A public guardian may

  3  be removed from office during the term of office only by the

  4  executive director who must consult with the chief judge prior

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

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

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

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

  9  application of ss. 744.474 and 744.477.

10         (6)  Prior to the effective date of this act, public

11  guardians who have been previously appointed by a chief judge

12  pursuant to this section may continue in their positions until

13  the expiration of their term pursuant to their agreement.

14  However, oversight of all public guardians shall transfer to

15  the Statewide Public Guardianship Office upon the effective

16  date of this act. The executive director of the Statewide

17  Public Guardianship Office shall be responsible for all future

18  appointments of public guardians pursuant to this act.

19         Section 5.  Section 744.706, Florida Statutes, is

20  amended to read:

21         744.706  Preparation of budget.--Each public guardian,

22  whether funded in whole or in part by money raised through

23  local efforts, grants, or any other source or whether funded

24  in whole or in part by the state, shall prepare a budget for

25  the operation of the office of public guardian to be submitted

26  to the Statewide Public Guardianship Office chief judge of the

27  judicial circuit for inclusion in the circuit courts'

28  legislative budget request.  As appropriate, the Statewide

29  Public Guardianship Office will include such budgetary

30  information in the Department of Elderly Affairs' legislative

31  budget request.  The office of public guardian shall be

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  1  operated within the limitations of the General Appropriations

  2  Act and any other funds appropriated by the Legislature to

  3  that particular judicial circuit, subject to the provisions of

  4  chapter 216.  The Department of Elderly Affairs shall make a

  5  separate and distinct request for an appropriation for the

  6  Statewide Public Guardianship Office. However, this section

  7  shall not be construed to preclude the financing of any

  8  operations of the office of the public guardian by moneys

  9  raised through local effort or through the efforts of the

10  Statewide Public Guardianship Office.

11         Section 6.  Section 744.707, Florida Statutes, is

12  amended to read:

13         744.707  Procedures and rules.--The public guardian,

14  subject to the oversight of the Statewide Public Guardianship

15  Office, is authorized to:

16         (1)  Formulate and adopt necessary procedures to assure

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

18  administration of the office and staff.

19         (2)  Contract for services necessary to discharge the

20  duties of the office.

21         (3)  Accept the services of volunteer persons or

22  organizations and provide reimbursement for proper and

23  necessary expenses.

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

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

26         744.708  Reports and standards.--

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

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

29  by September 1 for the preceding fiscal year with the

30  Statewide Public Guardianship Office chief judge of the

31

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  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 increase

24  or decrease enlarge or recede from the ratio after

25  consultation with the local public guardian and the chief

26  judge of the circuit court for good cause. The basis of the

27  decision to increase or decrease the prescribed ratio shall be

28  reported in the annual report to the Governor, the President

29  of the Senate, the Speaker of the House of Representatives,

30  and the Chief Justice of the Supreme Court.

31

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  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 nonprofessional or public prospective guardian

31  and shall require a professional guardian, to submit, at his

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  1  or her own expense, to an investigation of the prospective

  2  guardian's credit history and an investigatory check by the

  3  National Crime Information Center and the Florida Crime

  4  Information Center systems by means of fingerprint checks by

  5  the Department of Law Enforcement and the Federal Bureau of

  6  Investigation. The court shall waive the credit and criminal

  7  investigation for a guardian who is the spouse or child of the

  8  ward. The clerk of the court shall obtain fingerprint cards

  9  from the Federal Bureau of Investigation and make them

10  available to guardians. Any guardian who is so required shall

11  have his or her fingerprints taken and forward the proper

12  fingerprint card along with the necessary fee to the Florida

13  Department of Law Enforcement for processing. The professional

14  guardian shall pay to the clerk of the court a fee of $5 for

15  handling and processing professional guardian files. The

16  results of the fingerprint checks shall be forwarded to the

17  clerk of court who shall maintain the results in a guardian

18  file and shall make the results available to the court. If

19  credit or criminal investigations are required, the court must

20  consider the results of the investigations in appointing a

21  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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  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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  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

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

10  purposes 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  pubic 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  Elderly Affairs.

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

20  1999.

21

22            *****************************************

23                          HOUSE SUMMARY

24
      Creates the Statewide Public Guardianship Office within
25    the Department of Elderly Affairs to have oversight
      responsibility for all public guardians. See bill for
26    details.

27

28

29

30

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