Senate Bill 1048c1

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    Florida Senate - 2000                           CS for SB 1048

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




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  1                      A bill to be entitled

  2         An act relating to guardianship; amending s.

  3         744.702, F.S.; providing legislative findings

  4         and intent; amending s. 744.7021, F.S.;

  5         providing that the head of the Statewide Public

  6         Guardianship Office is the Statewide Public

  7         Guardian; providing for compensation; deleting

  8         an interim report requirement; revising the

  9         date for the report on a proposed statewide

10         public guardianship plan to be submitted to the

11         Governor and Legislature; prescribing the

12         location of the Statewide Public Guardianship

13         Office; providing for the appointment by the

14         Statewide Public Guardian of advisory councils

15         for development of curriculum and training

16         programs for public guardians; authorizing a

17         court to appoint the Statewide Public Guardian

18         to investigate the conduct of any guardian

19         appointed by the court; designating the

20         Statewide Public Guardianship Office as

21         guardian ombudsman when acting under such

22         appointment; providing for fees to be paid by

23         the guardian for such services when ordered by

24         the court; providing that the Statewide Public

25         Guardianship Office exercise oversight of

26         access to the civil justice system by the

27         elderly; requiring periodic reports and

28         recommendations; requiring the Statewide Public

29         Guardianship Office to monitor guardianship law

30         and process for indigent and nonindigent

31         residents; requiring periodic reports and

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  1         recommendations; amending s. 744.703, F.S.;

  2         allowing a public guardian to serve more than

  3         one judicial circuit; requiring a public

  4         guardianship office in each circuit;

  5         prohibiting more than one public guardian from

  6         serving one judicial circuit simultaneously;

  7         requiring a nonattorney public guardian to

  8         employ or contract with an attorney; amending

  9         s. 744.704, F.S.; authorizing a public guardian

10         to serve as a guardian advocate for a person

11         adjudicated under ch. 393 or ch. 394, F.S.,

12         under certain circumstances; amending s.

13         744.705, F.S.; authorizing public guardians to

14         recover from the ward's assets the costs of

15         administering the guardianship; providing a

16         limitation; providing for deposit of such funds

17         in the Department of Elderly Affairs

18         Administrative Trust Fund credited to the

19         account of the Statewide Public Guardianship

20         Office; amending s. 744.708, F.S.; conforming

21         provisions; amending s. 744.709, F.S.;

22         providing for a waiver of the bond requirement

23         of a public guardian; providing an effective

24         date.

25

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

27

28         Section 1.  Section 744.702, Florida Statutes, is

29  amended to read:

30         744.702  Legislative findings and intent.--

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  1         (1)  The Legislature finds that private guardianship is

  2  inadequate where there is no willing and responsible family

  3  member or friend, other person, bank, or corporation available

  4  to serve as guardian for an incapacitated person, and such

  5  person does not have adequate income or wealth for the

  6  compensation of a private guardian. The Legislature finds that

  7  it is against state policy to allow a person to be adjudicated

  8  incapacitated and fail to provide that person with a guardian

  9  to exercise those rights that the court finds should be

10  delegated to a guardian. The Legislature finds that it is

11  against state policy to allow a person who is functionally

12  incapable of exercising the rights enumerated in s.

13  744.3215(1)(a)-(o) and s. 744.3215(3)(a)-(g) to be without the

14  protection of guardianship because such person does not have

15  adequate income or wealth for the compensation of a private

16  guardian. The Legislature intends through this act to

17  establish the Statewide Public Guardianship Office, and

18  require permit the establishment of offices of public guardian

19  for the purpose of providing guardianship services for

20  incapacitated persons when no private guardian is available.

21         (2)  The Legislature finds that the number of persons

22  in the state in need of guardianship and financially unable to

23  afford the cost of a private guardian constitutes a crisis

24  that must be addressed by the Executive and Legislative

25  branches at the earliest possible date. It is, therefore, the

26  intent of the Legislature that by not later than July 1, 2001,

27  there be an office of public guardian established in each

28  judicial circuit, staffed to appropriately manage the demand

29  for public guardianship services in each judicial circuit. The

30  Legislature further finds that alternatives to guardianship

31  and less intrusive means of assistance should always be

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  1  explored, including, but not limited to, guardian advocates,

  2  before an individual's rights are removed through an

  3  adjudication of incapacity. The purpose of this legislation is

  4  to provide a public guardian only to those persons whose needs

  5  cannot be met through less drastic means of intervention and

  6  to ensure that each person who needs a guardian and who meets

  7  the income and asset limitation, as set forth in s. 744.704,

  8  will have access to the court to have his or her need for a

  9  guardian addressed. The Legislature finds that those persons

10  requiring public guardianship are the responsibility of the

11  state and that the state should properly fund public

12  guardianship services.

13         (3)  The Legislature finds that the practice of courts

14  requiring or appointing professional guardians to provide

15  public guardianship services without remuneration discourages

16  the establishment of private services by those who cannot

17  afford to operate a professional guardianship business due to

18  the burden of non-fee-producing public guardianship services.

19  As such, this practice creates a crisis in the availability of

20  guardianship services for all economic levels of wards in the

21  state.

22         (4)  The Legislature finds that there is an increasing

23  need for guardianship services not only among the elderly, but

24  among people of all ages, including those who are

25  developmentally disabled. It is the intent of the Legislature

26  that the Statewide Public Guardianship Office be the provider

27  of support for all public guardianship services through

28  whatever agency or under whatever program these services are

29  needed and that the services of the Statewide Public

30  Guardianship Office are not to be construed as limited to

31  providing guardian services to only elderly persons.

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  1         (5)  The Legislature finds that the guardianship

  2  profession is largely unregulated and that in the interest of

  3  protecting the public, and in the interest of raising the

  4  standards and accountability of professional guardians, the

  5  law should provide for the regulation of professional

  6  guardians by the Statewide Public Guardianship Office.

  7         (6)  The Legislature finds that there is no agency

  8  available in the state for courts to turn to as a guardianship

  9  ombudsman. There are cases in which guardians are appointed,

10  often friends or family members, when the issue is raised,

11  either upon suggestion of the court or by petition of a third

12  party, as to the adequacy of the services provided by the

13  guardian, and in which there is reason to believe that a

14  disinterested agency should evaluate and report to the court

15  concerning the propriety and appropriateness of the guardian's

16  services. The Legislature finds that it is in the best

17  interest of wards that the Statewide Public Guardianship

18  Office, as guardian ombudsman, have the authority, when

19  appointed, to investigate the conduct of guardians and report

20  its findings to the court that has jurisdiction over the

21  investigated guardian.

22         Section 2.  Section 744.7021, Florida Statutes, is

23  amended to read:

24         744.7021  Statewide Public Guardianship Office.--There

25  is hereby created the Statewide Public Guardianship Office

26  within the Department of Elderly Affairs. The Department of

27  Elderly Affairs shall provide administrative support and

28  service to the office to the extent requested by the Statewide

29  Public Guardian executive director within the available

30  resources of the department. The Statewide Public Guardianship

31  Office may request the assistance of the Inspector General of

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  1  the Department of Elderly Affairs in providing auditing

  2  services, and the Office of General Counsel of the department

  3  may provide assistance in rulemaking and other matters as

  4  needed to assist the Statewide Public Guardianship Office. The

  5  Statewide Public Guardianship Office shall not be subject to

  6  control, supervision, or direction by the Department of

  7  Elderly Affairs in the performance of its duties.

  8         (1)  The head of the Statewide Public Guardianship

  9  Office is the Statewide Public Guardian executive director,

10  who shall be appointed by the Governor. The Statewide Public

11  Guardian executive director must be a licensed attorney who

12  has with a background in guardianship law and knowledge of

13  social services available to meet the needs of incapacitated

14  persons, shall serve on a full-time basis, and shall

15  personally, or through representatives of the office, carry

16  out the purposes and functions of the Statewide Public

17  Guardianship Office in accordance with state and federal law.

18  The Statewide Public Guardian executive director shall serve

19  at the pleasure of and report to the Governor and shall be

20  compensated at the same annual salary as public defenders as

21  set by law.

22         (2)  The Statewide Public Guardianship Office shall,

23  within available resources, have oversight responsibilities

24  for all public guardians.

25         (a)  The office shall review the current public

26  guardian programs in Florida and other states.

27         (b)  The office, in consultation with local

28  guardianship offices, shall develop statewide performance

29  measures and standards.

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

31  funding guardianship programs, the kinds of services being

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

  2  In addition, the office shall review and make recommendations

  3  regarding the feasibility of recovering a portion or all of

  4  the costs of providing public guardianship services from the

  5  assets or income of the wards.

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

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

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

  9  of the Supreme Court an interim report describing the progress

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

11  section. No later than January 1, 2001 October 1, 2001, the

12  office shall submit to the Governor, the President of the

13  Senate, the Speaker of the House of Representatives, and the

14  Chief Justice of the Supreme Court a proposed public

15  guardianship plan including alternatives for meeting the

16  state's guardianship needs. This plan shall may include

17  recommendations for less than the entire state, may include a

18  phase-in system, and shall include estimates of the cost of

19  each of the alternatives. Each year thereafter, the office

20  shall provide a status report and provide further

21  recommendations to address the need for public guardianship

22  services and related issues.

23         (e)  The office may provide assistance to local

24  governments or entities in pursuing grant opportunities. The

25  office shall review and make recommendations in the annual

26  report on the availability and efficacy of seeking Medicaid

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

28  existing programs and services to meet the needs of public

29  wards.

30         (f)  The office shall develop a guardianship training

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

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  1  whether public or private. The office shall establish a

  2  curriculum committee to develop the training program specified

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

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

  5  guardians in order to defray the cost of providing the

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

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

  8  of their curriculum. Any fees collected pursuant to this

  9  paragraph shall be deposited in the Department of Elderly

10  Affairs Administrative Trust Fund to be used for the

11  guardianship training program. In order to facilitate

12  development of guardianship training programs and the

13  establishment of curriculum and in order to have the

14  assistance of academicians in the area of mental health, the

15  office shall be housed at the Louis de la Parte Florida Mental

16  Health Institute on the campus of the University of South

17  Florida. The institute shall provide adequate office space and

18  support services as necessary for the office. This does not

19  preclude the establishment of a second office in the

20  Department of Elderly Affairs in Tallahassee.

21         (3)  The office may conduct or contract for

22  demonstration projects, within funds appropriated or through

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

24  determine the feasibility or desirability of new concepts of

25  organization, administration, financing, or service delivery

26  designed to preserve the civil and constitutional rights of

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

28  or contributions for such purposes shall be deposited in the

29  Department of Elderly Affairs Administrative Trust Fund.

30         (4)  The Statewide Public Guardian may appoint advisory

31  councils to facilitate the collection of expertise for the

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  1  development of curriculum and training programs as well as the

  2  proposed public guardianship plan. Council members shall serve

  3  without compensation other than reimbursement for reasonably

  4  incurred expenses.

  5         (5)  The Statewide Public Guardian may be appointed by

  6  any court in the state to investigate and report to the court

  7  as to the propriety of the conduct of any guardian appointed

  8  by the court. When appointed by a court to conduct such an

  9  investigation, the Statewide Public Guardian, or his or her

10  designee, is acting as guardian ombudsman. Upon completion of

11  the investigation, as ordered by the court, the Statewide

12  Public Guardian may petition the guardian for fees if any

13  impropriety was uncovered through the investigation. Any fees

14  collected must be deposited with the Department of Elderly

15  Affairs Administrative Trust Fund and credited to the account

16  of the Statewide Public Guardianship Office and shall be made

17  available to the Statewide Public Guardian to supplement the

18  budgets of the public guardians and to offset the costs of the

19  office in conducting such investigations.

20         (6)  The office shall have oversight of access to the

21  civil justice system by the elderly including, but not limited

22  to, guardianship and shall periodically report to the

23  Governor, the Chief Justice of the Supreme Court, the

24  President of the Senate, and the Speaker of the House of

25  Representatives as to recommendations for changes in rules,

26  budget, and funding.

27         (7)  The office shall monitor guardianship law and the

28  guardianship process in the state and shall periodically

29  report and recommend to the Governor, the Chief Justice of the

30  Supreme Court, the President of the Senate, and the Speaker of

31  the House of Representatives needed legislation, rules, and

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  1  funding to provide for adequate access to, efficiency of, and

  2  availability of the courts and services for both indigent and

  3  nonindigent residents.

  4         (8)(4)  The office has authority to adopt rules

  5  pursuant to ss. 120.536(1) and 120.54 to carry out the

  6  provisions of this section.

  7         Section 3.  Section 744.703, Florida Statutes, is

  8  amended to read:

  9         744.703  Office of public guardian; appointment,

10  notification.--

11         (1)  The Statewide Public Guardian executive director

12  of the Statewide Public Guardianship Office, after

13  consultation with the chief judge and other circuit judges

14  within a the judicial circuit and with appropriate advocacy

15  groups and individuals and organizations who are knowledgeable

16  about the needs of incapacitated persons, shall may establish,

17  within a county in the judicial circuit or within the judicial

18  circuit, an office of public guardian and if so established,

19  shall create a list of persons best qualified to serve as the

20  public guardian, and such qualifications shall include review

21  pursuant to s. 744.3135. The public guardian must have

22  knowledge of the legal process and knowledge of social

23  services available to meet the needs of incapacitated persons.

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

25  public guardian only if:

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

27  United States Internal Revenue Service; and

28         (b)  It maintains a staff of professionally qualified

29  individuals to carry out the guardianship functions, including

30  a staff attorney who has experience in probate areas and

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

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  1  gerontologist, psychologist, registered nurse, or nurse

  2  practitioner.

  3         (2)  A public guardian appointed under this section may

  4  serve more than one circuit; however, there must be an open

  5  and adequately staffed office providing public guardianship

  6  services within each judicial circuit. A judicial circuit may

  7  not be simultaneously served by more than one public guardian.

  8  A public guardian who is not an attorney must have a staff

  9  attorney or contract with an attorney to perform the legal

10  functions of the wards.

11         (3)(2)  The Statewide Public Guardian executive

12  director shall appoint or contract with a public guardian from

13  the list of candidates described in subsection (1). A public

14  guardian must meet the qualifications for a guardian as

15  prescribed in s. 744.309(1)(a). Upon appointment of a the

16  public guardian, the Statewide Public Guardian executive

17  director shall notify the chief judge of the judicial circuit

18  and the Chief Justice of the Supreme Court of Florida, in

19  writing, of the appointment.

20         (4)(3)  If the needs of the county or circuit do not

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

22  guardian may be appointed at reduced compensation.

23         (5)(4)  A public guardian, whether full-time or

24  part-time, may not hold any position that would create a

25  conflict of interest.

26         (6)(5)  The public guardian is to be appointed for a

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

28  reviewed by the Statewide Public Guardian executive director,

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

30  Statewide Public Guardian executive director may suspend a

31  public guardian with or without the request of the chief

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  1  judge. If a public guardian is suspended, the Statewide Public

  2  Guardian executive director shall appoint an acting public

  3  guardian as soon as possible to serve until such time as a

  4  permanent replacement is selected. A public guardian may be

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

  6  Statewide Public Guardian, executive director who must consult

  7  with the chief judge prior to said removal. A recommendation

  8  of removal made by the chief judge must be considered by the

  9  Statewide Public Guardian executive director.

10         (7)(6)  Public guardians who have been previously

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

12  act pursuant to this section may continue in their positions

13  until the expiration of their term pursuant to their

14  agreement. However, oversight of all public guardians shall

15  transfer to the Statewide Public Guardianship Office upon the

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

17  Statewide Public Guardian Guardianship Office shall be

18  responsible for all future appointments of public guardians

19  pursuant to this act.

20         Section 4.  Subsection (1) of section 744.704, Florida

21  Statutes, is amended and subsection (10) is added to that

22  section to read:

23         744.704  Powers and duties.--

24         (1)  A public guardian may serve as a guardian of a

25  person adjudicated incapacitated under this chapter, as a

26  guardian advocate for a person adjudicated under chapter 393,

27  or as a guardian advocate for a person adjudicated under

28  chapter 394:

29         (a)  If there is no family member or friend, other

30  person, bank, or corporation willing and qualified to serve as

31  guardian; and

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  1         (b)  If the assets of the ward do not exceed the asset

  2  level for Medicaid eligibility, plus $2,000, exclusive of

  3  homestead and exempt property as defined in s. 4, Art. X of

  4  the State Constitution, and the ward's income, from all

  5  sources, is less than $6,000 $4,000 per year. Income from

  6  public welfare programs, supplemental security income,

  7  optional state supplement, a disability pension, or a social

  8  security pension shall be excluded in such computation.

  9  However, a ward whose total income, counting excludable

10  income, exceeds $30,000 a year may not be served.

11         (10)  A public guardian may not be compelled to serve

12  as a guardian advocate for a person receiving services under

13  chapter 393 or under chapter 394 if the public guardian finds

14  that he or she does not have sufficient staff to do so.

15         Section 5.  Section 744.705, Florida Statutes, is

16  amended to read:

17         744.705  Costs of public guardian.--

18         (1)  All Costs of administration, including filing

19  fees, shall be paid from the budget of the office of public

20  guardian.  No costs of administration, including filing fees,

21  shall be recovered from the assets or the income of the ward

22  except as provided in this section.

23         (2)  In any proceeding for appointment of a public

24  guardian, or in any proceeding involving the estate of a ward

25  for whom a public guardian has been appointed guardian, the

26  court may waive any court costs or filing fees.

27         (3)  At the time of filing and simultaneously with the

28  filing of a ward's annual accounting, report, and plan, or at

29  such time as the ward's assets exceed the Medicaid asset

30  limitation, a public guardian may file a petition to recover

31  all or some of the costs attributable to the administration of

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  1  the guardianship. The petition must be itemized and show the

  2  method of charges for direct case management and charges for

  3  purely administrative functions. The petition must be verified

  4  and must affirmatively show that all competing needs of the

  5  ward have been met and can reasonably be expected to be met in

  6  the coming reporting year. At no time may an award of recovery

  7  of costs for the year exceed the average annual cost per award

  8  of providing guardianship services to all persons served by

  9  the public guardian. Any award collected for cost recovery

10  must be deposited in the Department of Elderly Affairs

11  Administrative Trust Fund and credited to the account of the

12  Statewide Public Guardianship Office and must be made

13  available to the Statewide Public Guardian to supplement the

14  budgets of the public guardians serving the judicial circuits

15  of the state.

16         Section 6.  Subsections (4) and (8) of section 744.708,

17  Florida Statutes, are amended to read:

18         744.708  Reports and standards.--

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

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

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

22  file and to the executive director of the Statewide Public

23  Guardian Guardianship Office a report on his or her efforts to

24  locate a family member or friend, other person, bank, or

25  corporation to act as guardian of the ward and a report on the

26  ward's potential to be restored to capacity.

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

28  part, does shall not include the public guardian nor the

29  executive director of the Statewide Public Guardian

30  Guardianship Office.  The term "professional" is shall be

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  1  limited to those persons who exercise direct supervision of

  2  individual wards under the direction of the public guardian.

  3         Section 7.  Section 744.709, Florida Statutes, is

  4  amended to read:

  5         744.709  Surety bond.--Upon taking office, a public

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

  7  45.011 to be approved by the clerk, unless bond is waived by

  8  the chief judge of the judicial circuit. The bond shall be

  9  payable to the Governor and the Governor's successors in

10  office, in the penal sum of not less than $5,000 nor more than

11  $25,000, conditioned on the faithful performance of all duties

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

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

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

15  purchased from the funds of the local office of public

16  guardian.

17         Section 8.  This act shall take effect July 1, 2000.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                             SB 1048

  3

  4  The revised bill:

  5  -     modifies the language that provides for the regulation
          of professional guardians by the Statewide Public
  6        Guardianship Office;

  7  -     clarifies a legislative finding that it is in the best
          interest of wards that the Statewide Public Guardianship
  8        Office, as guardian ombudsman, have authority to
          investigate and report its findings with respect to the
  9        conduct of a guardian to a court that has jurisdiction
          over the investigated guardian;
10
    -     revises language providing for the Statewide Public
11        Guardian to be compensated at the same level as public
          defenders;
12
    -     designates the Statewide Public Guardian, or his or her
13        designee, as guardian ombudsman when appointed by a
          court to investigate the conduct of a guardian under the
14        court's jurisdiction;

15  -     clarifies that the Statewide Public Guardian may
          petition the investigated guardian, if any impropriety
16        was uncovered through the investigation, for
          reimbursement of costs resulting from investigation of
17        the guardian and providing for crediting of any
          recovered fees to the Statewide Public Guardianship
18        Office to supplement the public guardian budget and
          offset investigation costs;
19
    -     provides for the Statewide Public Guardianship Office to
20        exercise oversight of access to the civil justice system
          by the elderly, monitor the state guardianship law and
21        guardianship process, and requires that office to
          periodically report and make recommendations about
22        certain specified administrative matters and needed
          legislation;
23
    -     clarifies that a judicial circuit may not be served by
24        more than one public guardian simultaneously;

25  -     excuses a public guardian from serving as a guardian
          advocate for a person receiving state-funded services
26        for developmental disabilities when the public guardian
          is insufficiently staffed;
27
    -     deletes authority for a public guardian to petition a
28        court to recover costs associated with guardianship
          services provided to a ward whose assets can be expected
29        to exceed the Medicaid asset limitation; and

30  -     deletes language the protected nursing homes, group
          homes, adult living facilities, or hospitals from
31        certain legal procedures for giving opinions about
          whether patients or residents are unable to give
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CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2000                           CS for SB 1048
    317-1161-00




  1        informed consent for medical treatment or are unable to
          conduct their affairs.
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