House Bill 0213c1

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    Florida House of Representatives - 1999              CS/HB 213

        By the Committee on Real Property & Probate and
    Representatives Crow, Byrd and Lynn





  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. 744.474, F.S.; providing

  6         certain relatives the ability to petition the

  7         court regarding removal of the guardian;

  8         amending s. 744.702, F.S.; providing

  9         legislative intent to establish the Statewide

10         Public Guardianship Office; creating s.

11         744.7021, F.S.; providing for the Statewide

12         Public Guardianship Office within the

13         Department of Elderly Affairs; providing for an

14         executive director and oversight

15         responsibilities; providing for the Department

16         of Elderly Affairs to provide certain services

17         and support; requiring submission of a

18         guardianship plan and yearly status reports to

19         the Governor, the President of the Senate, the

20         Speaker of the House of Representatives, and

21         the Chief Justice of the Supreme Court;

22         requiring the office to develop a training

23         program and curriculum committee; authorizing

24         fees; authorizing demonstration projects;

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

26         providing for the executive director to

27         establish offices of public guardian and to

28         appoint or contract with public guardians;

29         providing for transfer of oversight

30         responsibility from the chief judge of the

31         circuit to the office; providing for the

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  1         suspension of public guardians, as specified;

  2         amending s. 744.706, F.S.; providing for the

  3         preparation of the budget of the Statewide

  4         Public Guardianship Office; amending s.

  5         744.707, F.S.; revising language with respect

  6         to procedures and rules to include reference to

  7         the Statewide Public Guardianship Office;

  8         amending s. 744.708, F.S.; revising language

  9         with respect to reports and standards;

10         providing reference to audits by the Auditor

11         General; amending s. 744.709, F.S.; revising

12         language with respect to surety bonds; amending

13         s. 744.1085, F.S.; revising language with

14         respect to professional guardians to include

15         reference to the Statewide Public Guardianship

16         Office; amending s. 744.3135, F.S., relating to

17         credit and criminal investigations of

18         guardians; authorizing credit and criminal

19         investigations of nonprofessional or public

20         guardians; deleting exemption of the spouse or

21         child of a ward from credit and criminal

22         investigations when appointed a guardian of the

23         ward; providing a procedure for obtaining

24         fingerprint cards and for maintaining the

25         results of certain investigations; amending s.

26         28.241, F.S.; providing for funds for public

27         guardians; providing an appropriation;

28         providing for the transfer of resources between

29         agencies; providing effective dates.

30

31

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  1         WHEREAS, the Legislature has recognized that private

  2  guardianship is inadequate when there is no willing and

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

  4  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  and

  8         WHEREAS, a few judicial circuits have been able to

  9  establish public guardianship programs to provide guardianship

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

11  additional circuits would like to have public guardians

12  available, and

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

14  going without this service which is necessary for the exercise

15  of an incapacitated person's constitutional rights, and

16         WHEREAS, the Legislature recognizes the need for a

17  statewide office to assist in finding ways to meet the

18  guardianship needs of incapacitated citizens, and

19         WHEREAS, there is a growing problem in Florida

20  involving functionally incapacitated persons who are unable to

21  access needed services, and

22         WHEREAS, the magnitude of this compelling problem

23  demands legislative action to protect our state's most

24  vulnerable citizens, NOW, THEREFORE,

25

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

27

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

29  Florida Statutes, are amended to read:

30         744.369  Judicial review of guardianship reports.--

31

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  1         (1)  The court shall review the initial guardianship

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

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

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

  5  clerk's report of findings to the court.

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

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

  8  require the general or special master to conduct random field

  9  audits.

10         Section 2.  Effective upon becoming a law, subsection

11  (19) of section 744.474, Florida Statutes, is amended to read:

12         744.474  Reasons for removal of guardian.--A guardian

13  may be removed for any of the following reasons, and the

14  removal shall be in addition to any other penalties prescribed

15  by law:

16         (19)  Upon a showing by a person who did not receive

17  notice of the petition for adjudication of incapacity, when

18  such notice is required, or and who is related to the ward

19  within the relationships specified for nonresident relatives

20  in ss. 744.309(2) and 744.312(2) and who has not previously

21  been rejected by the court as a guardian that:

22         (a)  The current guardian is not a family member; and

23         (b)  Removal of the current guardian is in the best

24  interest of the ward,

25

26  the court may remove the current guardian and appoint the

27  petitioner, or such person as the court deems in the best

28  interest of the ward, either as guardian of the person or of

29  the property, or both.

30         Section 3.  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.

19         Section 4.  Section 744.7021, Florida Statutes, is

20  created to read:

21         744.7021  Statewide Public Guardianship Office.--There

22  is hereby created the Statewide Public Guardianship Office

23  within the Department of Elderly Affairs. The Department of

24  Elderly Affairs shall provide administrative support and

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

26  director within the available resources of the department. The

27  Statewide Public Guardianship Office may request the

28  assistance of the Inspector General of the Department of

29  Elderly Affairs in providing auditing services, and the Office

30  of General Counsel of the department may provide assistance in

31  rulemaking and other matters as needed to assist the Statewide

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  1  Public Guardianship Office. The Statewide Public Guardianship

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

  3  direction by the Department of Elderly Affairs in the

  4  performance of its duties.

  5         (1)  The head of the Statewide Public Guardianship

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

  7  the Governor. The executive director must be a licensed

  8  attorney with a background in guardianship law and knowledge

  9  of social services available to meet the needs of

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

11  shall personally, or through representatives of the office,

12  carry out the purposes and functions of the Statewide Public

13  Guardianship Office in accordance with state and federal law.

14  The executive director shall serve at the pleasure of and

15  report to the Governor.

16         (2)  The Statewide Public Guardianship Office shall

17  within available resources have oversight responsibilities for

18  all public guardians.

19         (a)  The office shall review the current public

20  guardian programs in Florida and other states.

21         (b)  The office, in consultation with local

22  guardianship offices, shall develop statewide performance

23  measures and standards.

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

25  funding guardianship programs, the kinds of services being

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

27  In addition, the office shall review and make recommendations

28  regarding the feasibility of recovering a portion or all of

29  the costs of providing public guardianship services from the

30  assets or income of the wards.

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  1         (d)  No later than October 1, 2000, 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, 2001, 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. The office shall establish a

27  curriculum committee to develop the training program specified

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

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

30  guardians in order to defray the cost of providing the

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

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

  2  of their curriculum. Any fees collected pursuant to this

  3  paragraph shall be deposited in the Department of Elderly

  4  Affairs Administrative Trust Fund to be used for the

  5  guardianship training program.

  6         (3)  The office may conduct or contract for

  7  demonstration projects, within funds appropriated or through

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

  9  determine the feasibility or desirability of new concepts of

10  organization, administration, financing, or service delivery

11  designed to preserve the civil and constitutional rights of

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

13  or contributions for such purposes shall be deposited in the

14  Department of Elderly Affairs Administrative Trust Fund.

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

16  requirements of chapter 120 to carry out the provisions of

17  this section.

18         Section 5.  Section 744.703, Florida Statutes, is

19  amended to read:

20         744.703  Office of public guardian; appointment,

21  notification.--

22         (1)  The executive director of the Statewide Public

23  Guardianship Office The chief judge of the judicial circuit,

24  after consultation with the chief judge and other circuit

25  judges within the judicial circuit and with appropriate

26  advocacy groups and individuals and organizations who are

27  knowledgeable about the needs of incapacitated persons, may

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

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

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

31  serve as the public guardian and such qualifications shall

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  1  include review pursuant to s. 744.3135. The public guardian

  2  must have knowledge of the legal process and knowledge of

  3  social services available to meet the needs of incapacitated

  4  persons.  A nonprofit corporation under s. 744.309(5) may be

  5  appointed public guardian only if:

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

  7  United States Internal Revenue Service; and

  8         (b)  It maintains a staff of professionally qualified

  9  individuals to carry out the guardianship functions, including

10  a staff attorney who has experience in probate areas and

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

12  gerontologist, psychologist, registered nurse, or nurse

13  practitioner.

14         (2)  The executive director chief judge shall appoint

15  or contract with a the public guardian from the list of

16  candidates described in subsection (1). A public guardian must

17  meet the qualifications for a guardian as prescribed in s.

18  744.309(1)(a). Upon appointment of the public guardian, the

19  executive director chief judge shall notify the chief judge of

20  the judicial circuit and the Chief Justice of the Supreme

21  Court of Florida, in writing, of the appointment.

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

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

24  guardian may be appointed at reduced compensation.

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

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

27  interest.

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

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

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

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

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  1  executive director may suspend a public guardian with or

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

  3  is suspended, the executive director shall appoint an acting

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

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

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

  7  executive director who must consult with the chief judge prior

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

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

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

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

12  application of ss. 744.474 and 744.477.

13         (6)  Public guardians who have been previously

14  appointed by a chief judge prior to the effective date of this

15  act pursuant to this section may continue in their positions

16  until the expiration of their term pursuant to their

17  agreement. However, oversight of all public guardians shall

18  transfer to the Statewide Public Guardianship Office upon the

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

20  Statewide Public Guardianship Office shall be responsible for

21  all future appointments of public guardians pursuant to this

22  act.

23         Section 6.  Section 744.706, Florida Statutes, is

24  amended to read:

25         744.706  Preparation of budget.--Each public guardian,

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

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

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

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

30  to the Statewide Public Guardianship Office chief judge of the

31  judicial circuit for inclusion in the circuit courts'

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  1  legislative budget request.  As appropriate, the Statewide

  2  Public Guardianship Office will include such budgetary

  3  information in the Department of Elderly Affairs' legislative

  4  budget request.  The office of public guardian shall be

  5  operated within the limitations of the General Appropriations

  6  Act and any other funds appropriated by the Legislature to

  7  that particular judicial circuit, subject to the provisions of

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

  9  separate and distinct request for an appropriation for the

10  Statewide Public Guardianship Office. However, this section

11  shall not be construed to preclude the financing of any

12  operations of the office of the public guardian by moneys

13  raised through local effort or through the efforts of the

14  Statewide Public Guardianship Office.

15         Section 7.  Section 744.707, Florida Statutes, is

16  amended to read:

17         744.707  Procedures and rules.--The public guardian,

18  subject to the oversight of the Statewide Public Guardianship

19  Office, is authorized to:

20         (1)  Formulate and adopt necessary procedures to assure

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

22  administration of the office and staff.

23         (2)  Contract for services necessary to discharge the

24  duties of the office.

25         (3)  Accept the services of volunteer persons or

26  organizations and provide reimbursement for proper and

27  necessary expenses.

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

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

30         744.708  Reports and standards.--

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

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

  3  by September 1 for the preceding fiscal year with the

  4  Statewide Public Guardianship Office chief judge of the

  5  judicial circuit who shall have responsibility for supervision

  6  of the operations of the office of public guardian.

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

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

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

10  file and to the executive director of the Statewide Public

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

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

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

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

15  capacity.

16         (5)  An independent audit by a qualified certified

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

18  The audit should include an investigation into the practices

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

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

21  Statewide Public Guardianship Office. In addition, the office

22  of public guardian shall be subject to audits by the Auditor

23  General pursuant to s. 11.45.

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

25  1 professional to 40 wards.  The Statewide Public Guardianship

26  Office chief judge of the circuit upon application of the

27  public guardian, or upon the court's own motion, may increase

28  or decrease enlarge or recede from the ratio after

29  consultation with the local public guardian and the chief

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

31  decision to increase or decrease the prescribed ratio shall be

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

  2  of the Senate, the Speaker of the House of Representatives,

  3  and the Chief Justice of the Supreme Court.

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

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

  6  director of the Statewide Public Guardianship Office.  The

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

  8  exercise direct supervision of individual wards under the

  9  direction of the public guardian.

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

11  Statutes, is amended to read:

12         744.1085  Regulation of professional guardians;

13  application; bond required; educational requirements;

14  audits.--

15         (3)  Each professional guardian defined in s.

16  744.102(15), on October 1, 1997, must receive a minimum of 40

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

18  within 1 year after becoming a professional guardian,

19  whichever occurs later.  Each professional guardian must

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

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

22  educational requirement is met.  The instruction and education

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

24  Statewide Public Guardianship Office chief judge of the

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

26  expenses incurred to satisfy the educational requirements

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

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

29  is licensed to practice law in this state.

30         Section 10.  Section 744.3135, Florida Statutes, is

31  amended to read:

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  1         744.3135  Credit and criminal investigation.--The court

  2  may require a nonprofessional prospective guardian and shall

  3  require a professional or public guardian, to submit, at his

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

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

  6  National Crime Information Center and the Florida Crime

  7  Information Center systems by means of fingerprint checks by

  8  the Department of Law Enforcement and the Federal Bureau of

  9  Investigation. The clerk of the court shall obtain fingerprint

10  cards from the Federal Bureau of Investigation and make them

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

12  have his or her fingerprints taken and forward the proper

13  fingerprint card along with the necessary fee to the Florida

14  Department of Law Enforcement for processing. The professional

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

16  handling and processing professional guardian files. The

17  results of the fingerprint checks shall be forwarded to the

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

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

20  credit or criminal investigations are required, the court must

21  consider the results of the investigations in appointing a

22  guardian. The court shall waive the credit and criminal

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

24  ward.

25         Section 11.  Subsection 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 from with funding provided in the funds of

  6  appropriated to the local judicial circuit for the office of

  7  public guardian.

  8         Section 12.  Subsection (1) of section 28.241, Florida

  9  Statutes, is amended to read:

10         28.241  Filing charges for trial and appellate

11  proceedings.--

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

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

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

15  not more than five defendants and an additional service charge

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

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

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

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

20  attachment, replevin, and distress. An additional service

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

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

23  State Treasurer for deposit into the General Revenue Fund

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

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

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

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

28  Supreme Court monthly for deposit in the fund.  Service

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

30  governing authority of the county by ordinance or by special

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

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

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

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

  4  service charges are collected; to provide and maintain

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

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

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

  8  action filed, for the establishment, maintenance, or

  9  supplementation of a public guardian pursuant to ss.

10  744.701-744.708, inclusive.  Postal charges incurred by the

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

12  registered mail on defendants or other parties shall be paid

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

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

15  local or special law applied to the special purposes shall

16  constitute the total service charges of the clerk of such

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

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

19  charges and fees permitted under this subsection may not

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

21  order to provide for the establishment, maintenance, or

22  supplementation of a public guardian as indicated in this

23  subsection.

24         Section 13.  There is hereby appropriated from the

25  General Revenue Fund in a lump sum to the Department of

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

27  purposes of this act.

28         Section 14.  All powers, duties and functions, records,

29  personnel, property, and unexpended balances of

30  appropriations, allocations, or other funds relating to the

31  pubic guardianship program under chapter 744, Florida

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

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

  3  budget entity within the Judicial Branch to the Department of

  4  Elderly Affairs.

  5         Section 15.  Except as otherwise provided herein, this

  6  act shall take effect October 1, 1999.

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