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
1
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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.--
31
2
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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;
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- 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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1 informed consent for medical treatment or are unable to
conduct their affairs.
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