Senate Bill 0702c1

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    Florida Senate - 1999                            CS for SB 702

    By the Committee on Health, Aging and Long-Term Care; and
    Senators Forman and Grant




    317-1709A-99

  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 or contract with public guardians;

26         providing for transfer of oversight

27         responsibility from the chief judge of the

28         circuit to the office; providing for the

29         suspension or removal of public guardians, as

30         specified; amending s. 744.706, F.S.; providing

31         for the preparation of the budget of the

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  1         Statewide Public Guardianship Office; amending

  2         s. 744.707, F.S.; revising language with

  3         respect to procedures and rules to include

  4         reference to the Statewide Public Guardianship

  5         Office; amending s. 744.708, F.S.; revising

  6         language with respect to reports and standards;

  7         providing reference to audits by the Auditor

  8         General; amending s. 744.709, F.S.; relating to

  9         surety bond requirements for public guardians;

10         clarifying the funding source for such bonds;

11         amending s. 744.1085, F.S.; revising language

12         with respect to professional guardians to

13         include reference to the Statewide Public

14         Guardianship Office; amending s. 744.3135,

15         F.S., relating to credit and criminal

16         investigations of guardians; authorizing credit

17         and criminal investigations of nonprofessional

18         or public guardians; deleting exemption of the

19         spouse or child of a ward from credit and

20         criminal investigations when appointed a

21         guardian of the ward; providing a procedure for

22         obtaining fingerprint cards and for maintaining

23         the results of certain investigations; amending

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

25         guardians; providing for increase of court

26         service charges and fees for support of public

27         guardians; providing an appropriation;

28         providing for the transfer of resources from

29         the judicial branch to the executive branch of

30         state government; providing an effective date.

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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.--

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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.  Section 744.702, Florida Statutes, is

11  amended to read:

12         744.702  Legislative intent.--The Legislature finds

13  that private guardianship is inadequate where there is no

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

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

16  incapacitated person, and such person does not have adequate

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

18  The Legislature intends through this act to establish the

19  Statewide Public Guardianship Office, and permit the

20  establishment of offices office of public guardian for the

21  purpose of providing guardianship services for incapacitated

22  persons when no private guardian is available. The Legislature

23  further finds that alternatives to guardianship and less

24  intrusive means of assistance should always be explored,

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

26  individual's rights are removed through an adjudication of

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

28  public guardian only to those persons whose needs cannot be

29  met through less drastic means of intervention.

30         Section 3.  Section 744.7021, Florida Statutes, is

31  created to read:

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  1         744.7021  Statewide Public Guardianship Office.--There

  2  is hereby created the Statewide Public Guardianship Office

  3  within the Department of Elderly Affairs. The Department of

  4  Elderly Affairs shall provide administrative support and

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

  6  director within the available resources of the department. The

  7  Statewide Public Guardianship Office may request the

  8  assistance of the Inspector General of the Department of

  9  Elderly Affairs in providing auditing services, and the Office

10  of General Counsel of the department may provide assistance in

11  rulemaking and other matters as needed to assist the Statewide

12  Public Guardianship Office. The Statewide Public Guardianship

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

14  direction by the Department of Elderly Affairs in the

15  performance of its duties.

16         (1)  The head of the Statewide Public Guardianship

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

18  the Governor. The executive director must be a licensed

19  attorney with a background in guardianship law and knowledge

20  of social services available to meet the needs of

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

22  shall personally, or through representatives of the office,

23  carry out the purposes and functions of the Statewide Public

24  Guardianship Office in accordance with state and federal law.

25  The executive director shall serve at the pleasure of and

26  report to the Governor.

27         (2)  The Statewide Public Guardianship Office shall

28  within available resources have oversight responsibilities for

29  all public guardians.

30         (a)  The office shall review the current public

31  guardian programs in Florida and other states.

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  1         (b)  The office, in consultation with local

  2  guardianship offices, shall develop statewide performance

  3  measures and standards.

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

  5  funding guardianship programs, the kinds of services being

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

  7  In addition, the office shall review and make recommendations

  8  regarding the feasibility of recovering a portion or all of

  9  the costs of providing public guardianship services from the

10  assets or income of the wards.

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

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

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

14  of the Supreme Court an interim report describing the progress

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

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

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

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

19  of the Supreme Court a proposed public guardianship plan

20  including alternatives for meeting the state's guardianship

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

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

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

24  thereafter, the office shall provide a status report and

25  provide further recommendations to address the need for public

26  guardianship services and related issues.

27         (e)  Any medical, financial, or mental health records

28  necessary to evaluate the public guardianship system, to

29  assess the need for additional public guardianship offices or

30  services, or to develop the annual report of the Statewide

31  Public Guardianship Office to the Legislature, the Governor,

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  1  and the Chief Justice of the Supreme Court which are held by

  2  an agency or the court and its agencies shall be provided to

  3  the Statewide Public Guardianship Office upon request.

  4         (f)  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         (g)  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,

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  1  or contributions for such purposes shall be deposited in the

  2  Department of Elderly Affairs Administrative Trust Fund.

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

  4  requirements of chapter 120 to carry out the provisions of

  5  this section.

  6         Section 4.  Section 744.703, Florida Statutes, is

  7  amended to read:

  8         744.703  Office of public guardian; appointment,

  9  notification.--

10         (1)  The executive director of the Statewide Public

11  Guardianship Office The chief judge of the judicial circuit,

12  after consultation with the chief judge and other circuit

13  judges within the judicial circuit and with appropriate

14  advocacy groups and individuals and organizations who are

15  knowledgeable about the needs of incapacitated persons, may

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

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

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

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

20  knowledge of the legal process and knowledge of social

21  services available to meet the needs of incapacitated persons.

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

23  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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  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 by the

25  executive director who must consult with the chief judge prior

26  to such 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.

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

  2  guardians who have been previously appointed by a chief judge

  3  pursuant to this section may continue in their positions until

  4  the expiration of their term pursuant to their agreement.

  5  However, oversight of all public guardians shall transfer to

  6  the Statewide Public Guardianship Office upon the effective

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

  8  Public Guardianship Office shall be responsible for all future

  9  appointments of public guardians pursuant to this act.

10         Section 5.  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

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  1  raised through local effort or through the efforts of the

  2  Statewide Public Guardianship Office.

  3         Section 6.  Section 744.707, Florida Statutes, is

  4  amended to read:

  5         744.707  Procedures and rules.--The public guardian,

  6  subject to the oversight of the Statewide Public Guardianship

  7  Office, is authorized to:

  8         (1)  Formulate and adopt necessary procedures to assure

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

10  administration of the office and staff.

11         (2)  Contract for services necessary to discharge the

12  duties of the office.

13         (3)  Accept the services of volunteer persons or

14  organizations and provide reimbursement for proper and

15  necessary expenses.

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

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

18         744.708  Reports and standards.--

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

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

21  by September 1 for the preceding fiscal year with the

22  Statewide Public Guardianship Office chief judge of the

23  judicial circuit who shall have responsibility for supervision

24  of the operations of the office of public guardian.

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

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

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

28  file and to the executive director of the Statewide Public

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

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

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

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

  2  capacity.

  3         (5)  An independent audit by a qualified certified

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

  5  The audit should include an investigation into the practices

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

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

  8  Statewide Public Guardianship Office. In addition, the office

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

10  General pursuant to s. 11.45.

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

12  1 professional to 40 wards.  The Statewide Public Guardianship

13  Office chief judge of the circuit upon application of the

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

15  or decrease enlarge or recede from the ratio after

16  consultation with the local public guardian and the chief

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

18  decision to increase or decrease the prescribed ratio shall be

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

20  of the Senate, the Speaker of the House of Representatives,

21  and the Chief Justice of the Supreme Court.

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

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

24  director of the Statewide Public Guardianship Office.  The

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

26  exercise direct supervision of individual wards under the

27  direction of the public guardian.

28         Section 8.  Section 744.709, Florida Statutes, is

29  amended to read:

30         744.709  Surety bond.--Upon taking office, a public

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

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  1  45.011 to be approved by the clerk. The bond shall be payable

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

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

  4  conditioned on the faithful performance of all duties by the

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

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

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

  8  purchased from with funding provided in the funds of

  9  appropriated to the local judicial circuit for the office of

10  public guardian.

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

12  Statutes, is amended to read:

13         744.1085  Regulation of professional guardians;

14  application; bond required; educational requirements;

15  audits.--

16         (3)  Each professional guardian defined in s.

17  744.102(15), on October 1, 1997, must receive a minimum of 40

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

19  within 1 year after becoming a professional guardian,

20  whichever occurs later.  Each professional guardian must

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

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

23  educational requirement is met.  The instruction and education

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

25  Statewide Public Guardianship Office chief judge of the

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

27  expenses incurred to satisfy the educational requirements

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

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

30  is licensed to practice law in this state.

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  1         Section 10.  Section 744.3135, Florida Statutes, is

  2  amended to read:

  3         744.3135  Credit and criminal investigation.--The court

  4  may require a nonprofessional or public prospective guardian

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

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

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

  8  National Crime Information Center and the Florida Crime

  9  Information Center systems by means of fingerprint checks by

10  the Department of Law Enforcement and the Federal Bureau of

11  Investigation. The clerk of the court shall obtain fingerprint

12  cards from the Federal Bureau of Investigation and make them

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

14  have his or her fingerprints taken and forward the proper

15  fingerprint card along with the necessary fee to the Florida

16  Department of Law Enforcement for processing. The professional

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

18  handling and processing professional guardian files. The

19  results of the fingerprint checks shall be forwarded to the

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

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

22  credit or criminal investigations are required, the court must

23  consider the results of the investigations in appointing a

24  guardian. The court shall waive the credit and criminal

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

26  ward.

27         Section 11.  Subsection (1) of section 28.241, Florida

28  Statutes, is amended to read:

29         28.241  Filing charges for trial and appellate

30  proceedings.--

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

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

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

  4  not more than five defendants and an additional service charge

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

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

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

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

  9  attachment, replevin, and distress. An additional service

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

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

12  State Treasurer for deposit into the General Revenue Fund

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

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

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

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

17  Supreme Court monthly for deposit in the fund.  Service

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

19  governing authority of the county by ordinance or by special

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

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

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

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

24  service charges are collected; to provide and maintain

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

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

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

28  action filed, for the establishment, maintenance, or

29  supplementation of a public guardian pursuant to ss.

30  744.701-744.708, inclusive.  Postal charges incurred by the

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

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  1  registered mail on defendants or other parties shall be paid

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

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

  4  local or special law applied to the special purposes shall

  5  constitute the total service charges of the clerk of such

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

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

  8  charges and fees permitted under this subsection may not

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

10  order to provide for the establishment, maintenance, or

11  supplementation of a public guardian as authorized under this

12  subsection.

13         Section 12.  There is hereby appropriated from the

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

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

16  purposes of this act.

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

18  personnel, property, and unexpended balances of

19  appropriations, allocations, or other funds relating to the

20  pubic guardianship program under chapter 744, Florida

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

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

23  budget entity within the Judicial Branch to the Department of

24  Elderly Affairs.

25         Section 14.  This act shall take effect October 1,

26  1999.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 702

  3

  4  The Statewide Public Guardianship Office is granted, at its
    request, access to any medical, financial, or mental health
  5  record held by an agency or a court when the Office considers
    such a record necessary to the evaluation of: (1) the public
  6  guardianship system or services rendered, (2) availability of
    the services, or (3) for purposes of producing the annual
  7  report required of the Office. The provision of law relating
    to the surety bond required for public guardians is amended to
  8  avoid ambiguous interpretation of the funding source for such
    bonds by clarifying that the funds used to purchase the bonds
  9  will continue to come from local sources. The exemption from
    background screening of spouses and children who petition to
10  serve as guardian of a relative is repealed.

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