CODING: Words stricken are deletions; words underlined are additions.





                                                  SENATE AMENDMENT

    Bill No. CS for SB 702

    Amendment No.    

                            CHAMBER ACTION
              Senate                               House
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10                                                                

11  Senator Forman moved the following amendment:

12

13         Senate Amendment (with title amendment) 

14         Delete everything after the enacting clause

15

16  and insert:

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

18  Florida Statutes, are amended to read:

19         744.369  Judicial review of guardianship reports.--

20         (1)  The court shall review the initial guardianship

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

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

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

24  clerk's report of findings to the court.

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

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

27  require the general or special master to conduct random field

28  audits.

29         Section 2.  Effective upon becoming a law, subsection

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

31         744.474  Reasons for removal of guardian.--A guardian

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 702

    Amendment No.    





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

 2  removal shall be in addition to any other penalties prescribed

 3  by law:

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

 5  notice of the petition for adjudication of incapacity, when

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

 7  within the relationships specified for nonresident relatives

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

 9  been rejected by the court as a guardian that:

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

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

12  interest of the ward,

13

14  the court may remove the current guardian and appoint the

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

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

17  the property, or both.

18         Section 3.  Section 744.702, Florida Statutes, is

19  amended to read:

20         744.702  Legislative intent.--The Legislature finds

21  that private guardianship is inadequate where there is no

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

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

24  incapacitated person, and such person does not have adequate

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

26  The Legislature intends through this act to establish the

27  Statewide Public Guardianship Office, and permit the

28  establishment of offices office of public guardian for the

29  purpose of providing guardianship services for incapacitated

30  persons when no private guardian is available. The Legislature

31  further finds that alternatives to guardianship and less

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 702

    Amendment No.    





 1  intrusive means of assistance should always be explored,

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

 3  individual's rights are removed through an adjudication of

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

 5  public guardian only to those persons whose needs cannot be

 6  met through less drastic means of intervention.

 7         Section 4.  Section 744.7021, Florida Statutes, is

 8  created to read:

 9         744.7021  Statewide Public Guardianship Office.--There

10  is hereby created the Statewide Public Guardianship Office

11  within the Department of Elderly Affairs. The Department of

12  Elderly Affairs shall provide administrative support and

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

14  director within the available resources of the department. The

15  Statewide Public Guardianship Office may request the

16  assistance of the Inspector General of the Department of

17  Elderly Affairs in providing auditing services, and the Office

18  of General Counsel of the department may provide assistance in

19  rulemaking and other matters as needed to assist the Statewide

20  Public Guardianship Office. The Statewide Public Guardianship

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

22  direction by the Department of Elderly Affairs in the

23  performance of its duties.

24         (1)  The head of the Statewide Public Guardianship

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

26  the Governor. The executive director must be a licensed

27  attorney with a background in guardianship law and knowledge

28  of social services available to meet the needs of

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

30  shall personally, or through representatives of the office,

31  carry out the purposes and functions of the Statewide Public

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 702

    Amendment No.    





 1  Guardianship Office in accordance with state and federal law.

 2  The executive director shall serve at the pleasure of and

 3  report to the Governor.

 4         (2)  The Statewide Public Guardianship Office shall

 5  within available resources have oversight responsibilities for

 6  all public guardians.

 7         (a)  The office shall review the current public

 8  guardian programs in Florida and other states.

 9         (b)  The office, in consultation with local

10  guardianship offices, shall develop statewide performance

11  measures and standards.

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

13  funding guardianship programs, the kinds of services being

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

15  In addition, the office shall review and make recommendations

16  regarding the feasibility of recovering a portion or all of

17  the costs of providing public guardianship services from the

18  assets or income of the wards.

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

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

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

22  of the Supreme Court an interim report describing the progress

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

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

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

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

27  of the Supreme Court a proposed public guardianship plan

28  including alternatives for meeting the state's guardianship

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

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

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

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 702

    Amendment No.    





 1  thereafter, the office shall provide a status report and

 2  provide further recommendations to address the need for public

 3  guardianship services and related issues.

 4         (e)  The office may provide assistance to local

 5  governments or entities in pursuing grant opportunities. The

 6  office shall review and make recommendations in the annual

 7  report on the availability and efficacy of seeking Medicaid

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

 9  existing programs and services to meet the needs of public

10  wards.

11         (f)  The office shall develop a guardianship training

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

13  whether public or private. The office shall establish a

14  curriculum committee to develop the training program specified

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

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

17  guardians in order to defray the cost of providing the

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

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

20  of their curriculum. Any fees collected pursuant to this

21  paragraph shall be deposited in the Department of Elderly

22  Affairs Administrative Trust Fund to be used for the

23  guardianship training program.

24         (3)  The office may conduct or contract for

25  demonstration projects, within funds appropriated or through

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

27  determine the feasibility or desirability of new concepts of

28  organization, administration, financing, or service delivery

29  designed to preserve the civil and constitutional rights of

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

31  or contributions for such purposes shall be deposited in the

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 702

    Amendment No.    





 1  Department of Elderly Affairs Administrative Trust Fund.

 2         (4)  The office has authority to adopt rules pursuant

 3  to ss. 120.54 and 120.536(1) to carry out the provisions of

 4  this section.

 5         Section 5.  Section 744.703, Florida Statutes, is

 6  amended to read:

 7         744.703  Office of public guardian; appointment,

 8  notification.--

 9         (1)  The executive director of the Statewide Public

10  Guardianship Office The chief judge of the judicial circuit,

11  after consultation with the chief judge and other circuit

12  judges within the judicial circuit and with appropriate

13  advocacy groups and individuals and organizations who are

14  knowledgeable about the needs of incapacitated persons, may

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

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

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

18  serve as the public guardian and such qualifications shall

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

20  must have knowledge of the legal process and knowledge of

21  social services available to meet the needs of incapacitated

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

23  appointed public guardian only if:

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

25  United States Internal Revenue Service; and

26         (b)  It maintains a staff of professionally qualified

27  individuals to carry out the guardianship functions, including

28  a staff attorney who has experience in probate areas and

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

30  gerontologist, psychologist, registered nurse, or nurse

31  practitioner.

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 702

    Amendment No.    





 1         (2)  The executive director chief judge shall appoint

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

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

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

 5  744.309(1)(a). Upon appointment of the public guardian, the

 6  executive director chief judge shall notify the chief judge of

 7  the judicial circuit and the Chief Justice of the Supreme

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

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

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

11  guardian may be appointed at reduced compensation.

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

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

14  interest.

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

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

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

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

19  executive director may suspend a public guardian with or

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

21  is suspended, the executive director shall appoint an acting

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

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

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

25  executive director who must consult with the chief judge prior

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

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

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

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

30  application of ss. 744.474 and 744.477.

31         (6)  Public guardians who have been previously

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 702

    Amendment No.    





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

 2  act pursuant to this section may continue in their positions

 3  until the expiration of their term pursuant to their

 4  agreement. However, oversight of all public guardians shall

 5  transfer to the Statewide Public Guardianship Office upon the

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

 7  Statewide Public Guardianship Office shall be responsible for

 8  all future appointments of public guardians pursuant to this

 9  act.

10         Section 6.  Section 744.706, Florida Statutes, is

11  amended to read:

12         744.706  Preparation of budget.--Each public guardian,

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

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

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

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

17  to the Statewide Public Guardianship Office chief judge of the

18  judicial circuit for inclusion in the circuit courts'

19  legislative budget request.  As appropriate, the Statewide

20  Public Guardianship Office will include such budgetary

21  information in the Department of Elderly Affairs' legislative

22  budget request.  The office of public guardian shall be

23  operated within the limitations of the General Appropriations

24  Act and any other funds appropriated by the Legislature to

25  that particular judicial circuit, subject to the provisions of

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

27  separate and distinct request for an appropriation for the

28  Statewide Public Guardianship Office. However, this section

29  shall not be construed to preclude the financing of any

30  operations of the office of the public guardian by moneys

31  raised through local effort or through the efforts of the

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 702

    Amendment No.    





 1  Statewide Public Guardianship Office.

 2         Section 7.  Section 744.707, Florida Statutes, is

 3  amended to read:

 4         744.707  Procedures and rules.--The public guardian,

 5  subject to the oversight of the Statewide Public Guardianship

 6  Office, is authorized to:

 7         (1)  Formulate and adopt necessary procedures to assure

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

 9  administration of the office and staff.

10         (2)  Contract for services necessary to discharge the

11  duties of the office.

12         (3)  Accept the services of volunteer persons or

13  organizations and provide reimbursement for proper and

14  necessary expenses.

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

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

17         744.708  Reports and standards.--

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

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

20  by September 1 for the preceding fiscal year with the

21  Statewide Public Guardianship Office chief judge of the

22  judicial circuit who shall have responsibility for supervision

23  of the operations of the office of public guardian.

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

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

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

27  file and to the executive director of the Statewide Public

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

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

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

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

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 702

    Amendment No.    





 1  capacity.

 2         (5)  An independent audit by a qualified certified

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

 4  The audit should include an investigation into the practices

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

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

 7  Statewide Public Guardianship Office. In addition, the office

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

 9  General pursuant to s. 11.45.

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

11  1 professional to 40 wards.  The Statewide Public Guardianship

12  Office chief judge of the circuit upon application of the

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

14  or decrease enlarge or recede from the ratio after

15  consultation with the local public guardian and the chief

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

17  decision to increase or decrease the prescribed ratio shall be

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

19  of the Senate, the Speaker of the House of Representatives,

20  and the Chief Justice of the Supreme Court.

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

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

23  director of the Statewide Public Guardianship Office.  The

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

25  exercise direct supervision of individual wards under the

26  direction of the public guardian.

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

28  Statutes, is amended to read:

29         744.1085  Regulation of professional guardians;

30  application; bond required; educational requirements;

31  audits.--

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 702

    Amendment No.    





 1         (3)  Each professional guardian defined in s.

 2  744.102(15), on October 1, 1997, must receive a minimum of 40

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

 4  within 1 year after becoming a professional guardian,

 5  whichever occurs later.  Each professional guardian must

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

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

 8  educational requirement is met.  The instruction and education

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

10  Statewide Public Guardianship Office chief judge of the

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

12  expenses incurred to satisfy the educational requirements

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

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

15  is licensed to practice law in this state.

16         Section 10.  Section 744.3135, Florida Statutes, is

17  amended to read:

18         744.3135  Credit and criminal investigation.--The court

19  may require a nonprofessional prospective guardian and shall

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

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

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

23  National Crime Information Center and the Florida Crime

24  Information Center systems by means of fingerprint checks by

25  the Department of Law Enforcement and the Federal Bureau of

26  Investigation. The clerk of the court shall obtain fingerprint

27  cards from the Federal Bureau of Investigation and make them

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

29  have his or her fingerprints taken and forward the proper

30  fingerprint card along with the necessary fee to the Florida

31  Department of Law Enforcement for processing. The professional

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 702

    Amendment No.    





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

 2  handling and processing professional guardian files. The

 3  results of the fingerprint checks shall be forwarded to the

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

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

 6  credit or criminal investigations are required, the court must

 7  consider the results of the investigations in appointing a

 8  guardian. The court shall waive the credit and criminal

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

10  ward.

11         Section 11.  Subsection 744.709, Florida Statutes, is

12  amended to read:

13         744.709  Surety bond.--Upon taking office, a public

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

15  45.011 to be approved by the clerk. The bond shall be payable

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

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

18  conditioned on the faithful performance of all duties by the

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

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

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

22  purchased from with funding provided in the funds of

23  appropriated to the local judicial circuit for the office of

24  public guardian.

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

26  Statutes, is amended to read:

27         28.241  Filing charges for trial and appellate

28  proceedings.--

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

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

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

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 702

    Amendment No.    





 1  not more than five defendants and an additional service charge

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

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

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

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

 6  attachment, replevin, and distress. An additional service

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

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

 9  State Treasurer for deposit into the General Revenue Fund

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

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

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

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

14  Supreme Court monthly for deposit in the fund.  Service

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

16  governing authority of the county by ordinance or by special

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

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

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

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

21  service charges are collected; to provide and maintain

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

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

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

25  action filed, for the establishment, maintenance, or

26  supplementation of a public guardian pursuant to ss.

27  744.701-744.708, inclusive.  Postal charges incurred by the

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

29  registered mail on defendants or other parties shall be paid

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

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

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 702

    Amendment No.    





 1  local or special law applied to the special purposes shall

 2  constitute the total service charges of the clerk of such

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

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

 5  charges and fees permitted under this subsection may not

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

 7  order to provide for the establishment, maintenance, or

 8  supplementation of a public guardian as indicated in this

 9  subsection.

10         Section 13.  All powers, duties and functions, records,

11  personnel, property, and unexpended balances of

12  appropriations, allocations, or other funds relating to the

13  pubic guardianship program under chapter 744, Florida

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

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

16  budget entity within the Judicial Branch to the Department of

17  Elderly Affairs.

18         Section 14.  Except as otherwise provided herein, this

19  act shall take effect October 1, 1999.

20

21

22  ================ T I T L E   A M E N D M E N T ===============

23  And the title is amended as follows:

24         Delete everything before the enacting clause

25

26  and insert:

27                      A bill to be entitled

28         An act relating to guardianship; amending s.

29         744.369, F.S.; extending the time to review

30         certain reports; authorizing random field

31         audits; amending s. 744.474, F.S.; providing

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 702

    Amendment No.    





 1         certain relatives the ability to petition the

 2         court regarding removal of the guardian;

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

 4         legislative intent to establish the Statewide

 5         Public Guardianship Office; creating s.

 6         744.7021, F.S.; providing for the Statewide

 7         Public Guardianship Office within the

 8         Department of Elderly Affairs; providing for an

 9         executive director and oversight

10         responsibilities; providing for the Department

11         of Elderly Affairs to provide certain services

12         and support; requiring submission of a

13         guardianship plan and yearly status reports to

14         the Governor, the President of the Senate, the

15         Speaker of the House of Representatives, and

16         the Chief Justice of the Supreme Court;

17         requiring the office to develop a training

18         program and curriculum committee; authorizing

19         fees; authorizing demonstration projects;

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

21         providing for the executive director to

22         establish offices of public guardian and to

23         appoint or contract with public guardians;

24         providing for transfer of oversight

25         responsibility from the chief judge of the

26         circuit to the office; providing for the

27         suspension of public guardians, as specified;

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

29         preparation of the budget of the Statewide

30         Public Guardianship Office; amending s.

31         744.707, F.S.; revising language with respect

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 702

    Amendment No.    





 1         to procedures and rules to include reference to

 2         the Statewide Public Guardianship Office;

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

 4         with respect to reports and standards;

 5         providing reference to audits by the Auditor

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

 7         language with respect to surety bonds; amending

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

 9         respect to professional guardians to include

10         reference to the Statewide Public Guardianship

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

12         credit and criminal investigations of

13         guardians; authorizing credit and criminal

14         investigations of nonprofessional or public

15         guardians; deleting exemption of the spouse or

16         child of a ward from credit and criminal

17         investigations when appointed a guardian of the

18         ward; providing a procedure for obtaining

19         fingerprint cards and for maintaining the

20         results of certain investigations; amending s.

21         28.241, F.S.; providing for funds for public

22         guardians; providing for the transfer of

23         resources between agencies; providing effective

24         dates.

25

26         WHEREAS, the Legislature has recognized that private

27  guardianship is inadequate when there is no willing and

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

29  corporation available to serve as guardian for an

30  incapacitated person, and such person does not have adequate

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

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 702

    Amendment No.    





 1  and

 2         WHEREAS, a few judicial circuits have been able to

 3  establish public guardianship programs to provide guardianship

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

 5  additional circuits would like to have public guardians

 6  available, and

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

 8  going without this service which is necessary for the exercise

 9  of an incapacitated person's constitutional rights, and

10         WHEREAS, the Legislature recognizes the need for a

11  statewide office to assist in finding ways to meet the

12  guardianship needs of incapacitated citizens, and

13         WHEREAS, there is a growing problem in Florida

14  involving functionally incapacitated persons who are unable to

15  access needed services, and

16         WHEREAS, the magnitude of this compelling problem

17  demands legislative action to protect our state's most

18  vulnerable citizens, NOW, THEREFORE,

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