Senate Bill 1048c3
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Florida Senate - 2000 CS for CS for CS for SB 1048
(Corrected Copy)
By the Committees on Fiscal Policy; Judiciary; Health, Aging
and Long-Term Care; and Senators Forman and Brown-Waite
309-2067-00
1 A bill to be entitled
2 An act relating to guardianship; amending s.
3 744.3145, F.S.; transferring responsibility for
4 the education and training curriculum of
5 guardians from the court to the Statewide
6 Public Guardian; amending s. 744.3215, F.S.;
7 limiting specific authority for a guardian to
8 consent to the withdrawal or withholding of
9 life-prolonging procedures; amending s.
10 744.702, F.S.; providing legislative findings
11 and intent; amending s. 744.7021, F.S.;
12 providing that the head of the Statewide Public
13 Guardianship Office is the Statewide Public
14 Guardian; providing for compensation; deleting
15 an interim report requirement; revising the
16 date for the report on a proposed statewide
17 public guardianship plan to be submitted to the
18 Governor and Legislature; prescribing the
19 location of the Statewide Public Guardianship
20 Office; authorizing the Statewide Public
21 Guardian to convene a workgroup for the
22 development and recommendation of a plan for
23 professional guardian regulation; providing for
24 the appointment by the Statewide Public
25 Guardian of an advisory council for development
26 of curriculum and training programs for public
27 guardians; authorizing a court to appoint the
28 Statewide Public Guardian to investigate the
29 conduct of any guardian appointed by the court;
30 providing for the award of fees; requiring the
31 Statewide Public Guardianship Office to monitor
1
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guardianship law and process for indigent and
1
nonindigent residents; requiring periodic
2
reports and recommendations; amending s.
3
744.703, F.S.; allowing a public guardian to
4
serve more than one judicial circuit; requiring
5
a public guardianship office in each circuit;
6
prohibiting more than one public guardian from
7
serving one judicial circuit simultaneously;
8
requiring a nonattorney public guardian to be
9
represented by counsel; amending s. 744.704,
10
F.S.; authorizing a public guardian to serve as
11
a guardian advocate for a person adjudicated
12
under ch. 393 or ch. 394, F.S., under certain
13
circumstances; amending s. 744.705, F.S.;
14
authorizing public guardians to recover from
15
the ward's assets the guardian and attorney's
16
fees in accordance with s. 744.108, F.S.;
17
amending s. 744.708, F.S.; conforming
18
provisions; amending s. 744.709, F.S.;
19
providing for a waiver of the bond requirement
20
of a public guardian; clarifying that the act
21
is implemented to the extent funds are
22
appropriated in the General Appropriations Act
23
or that funds are available from federal or
24
local sources for a specific provision;
25
providing an effective date.
26
27
Be It Enacted by the Legislature of the State of Florida:
28
29
Section 1. Subsection (3) of section 744.3145, Florida
30
Statutes, is amended to read:
31
2
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744.3145 Guardian education requirements.--
1
(3) Each person appointed by the court to be a
2
guardian must complete the 8 hours of instruction and
3
education within 1 year after his or her appointment as
4
guardian. The instruction and education must be completed
5
through a course approved by the Statewide Public Guardian
6
chief judge of the circuit court and taught by an a
7
court-approved organization approved by the Statewide Public
8
Guardian. Court-approved organizations may include, but are
9
not limited to, community or junior colleges, guardianship
10
organizations, and the local bar association or The Florida
11
Bar.
12
Section 2. Subsection (4) of section 744.3215, Florida
13
Statutes, is amended to read:
14
744.3215 Rights of persons determined incapacitated.--
15
(4) Without first obtaining specific authority from
16
the court, as described in s. 744.3725, a guardian may not:
17
(a) Commit the ward to a facility, institution, or
18
licensed service provider without formal placement proceeding,
19
pursuant to chapter 393, chapter 394, or chapter 397.
20
(b) Consent on behalf of the ward to the performance
21
on the ward of any experimental biomedical or behavioral
22
procedure or to the participation by the ward in any
23
biomedical or behavioral experiment. The court may permit
24
such performance or participation only if:
25
1. It is of direct benefit to, and is intended to
26
preserve the life of or prevent serious impairment to the
27
mental or physical health of the ward; or
28
2. It is intended to assist the ward to develop or
29
regain his or her abilities.
30
31
3
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(c) Initiate a petition for dissolution of marriage
1
for the ward.
2
(d) Consent on behalf of the ward to termination of
3
the ward's parental rights.
4
(e) Consent on behalf of the ward to the performance
5
of a sterilization or abortion procedure on the ward.
6
(f) Consent to or otherwise direct on behalf of the
7
ward to withdraw or withhold life-prolonging procedures. Any
8
authority exercised under this paragraph must comply with
9
chapter 765.
10
Section 3. Section 744.702, Florida Statutes, is
11
amended to read:
12
744.702 Legislative findings and intent.--
13
(1) The Legislature finds that private guardianship is
14
inadequate where there is no willing and responsible family
15
member or friend, other person, bank, or corporation available
16
to serve as guardian for an incapacitated person, and such
17
person does not have adequate income or wealth for the
18
compensation of a private guardian. The Legislature finds that
19
it is against state policy to allow a person to be adjudicated
20
incapacitated and fail to provide that person with a guardian
21
to exercise those rights that the court finds should be
22
delegated to a guardian. The Legislature finds that it is
23
against state policy to allow a person who is functionally
24
incapable of exercising the rights enumerated in s.
25
744.3215(1)(a)-(o) and s. 744.3215(3)(a)-(g) to be without the
26
protection of guardianship regardless of the origin of the
27
person's incapacity or the incapacitated person's economic
28
circumstances. The Legislature intends through this act to
29
establish the Statewide Public Guardianship Office, and
30
require permit the establishment of offices of public guardian
31
4
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for the purpose of providing guardianship services for
1
incapacitated persons when no private guardian is available.
2
(2) The Legislature finds that the number of persons
3
in the state in need of guardianship and financially unable to
4
afford the cost of a private guardian constitutes a crisis
5
that must be addressed by the Executive and Legislative
6
branches at the earliest possible date. It is, therefore, the
7
intent of the Legislature that by October 1, 2001, there be an
8
office of public guardian established in each judicial
9
circuit, staffed to appropriately manage the demand for public
10
guardianship services in each judicial circuit. The
11
Legislature further finds that alternatives to guardianship
12
and less intrusive means of assistance should always be
13
explored, including, but not limited to, guardian advocates,
14
before an individual's rights are removed through an
15
adjudication of incapacity. The purpose of this legislation is
16
to provide a public guardian only to those persons whose needs
17
cannot be met through less drastic means of intervention and
18
to ensure that each person who needs a guardian and who meets
19
the income and asset limitation, as set forth in s. 744.704,
20
will have access to the court to have his or her need for a
21
guardian addressed. The Legislature finds that those persons
22
requiring public guardianship are the responsibility of the
23
state and that the state should properly fund public
24
guardianship services.
25
(3) The Legislature finds that in many instances the
26
appointment of professional guardians to provide pro-bono
27
public guardianship services is the only access indigent
28
incapacitated persons have to guardianship services. While the
29
Legislature does not want to discourage the provision of
30
pro-bono guardianship services to incapacitated indigent
31
5
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persons by professional guardians, in some instances the
1
pro-bono case load of professional guardians is as much as 50
2
percent, overburdening such professional guardians to the
3
extent that their economic competitiveness is degraded,
4
resulting in the undersupply of guardianship services.
5
(4) The Legislature finds guardianship regulation is
6
currently the responsibility of the courts and that there has
7
been such rapid growth in the need for guardianship services
8
that the court ought to have the administrative burden of
9
guardianship regulation relieved. Accordingly, the Statewide
10
Public Guardian is authorized to convene a workgroup
11
consisting of representatives of the court system, attorneys,
12
guardians, and other interested persons for the purpose of
13
developing and recommending a plan for professional
14
guardianship regulation to the Legislature.
15
Section 4. Section 744.7021, Florida Statutes, is
16
amended to read:
17
744.7021 Statewide Public Guardianship Office.--There
18
is hereby created the Statewide Public Guardianship Office
19
within the Department of Elderly Affairs. The Department of
20
Elderly Affairs shall provide administrative support and
21
service to the office to the extent requested by the Statewide
22
Public Guardian executive director within the available
23
resources of the department. The Statewide Public Guardianship
24
Office may request the assistance of the Inspector General of
25
the Department of Elderly Affairs in providing auditing
26
services, and the Office of General Counsel of the department
27
may provide assistance in rulemaking and other matters as
28
needed to assist the Statewide Public Guardianship Office. The
29
Statewide Public Guardianship Office shall not be subject to
30
31
6
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control, supervision, or direction by the Department of
1
Elderly Affairs in the performance of its duties.
2
(1) The head of the Statewide Public Guardianship
3
Office is the Statewide Public Guardian executive director,
4
who shall be appointed by the Governor. The Statewide Public
5
Guardian executive director must be a licensed attorney who
6
has with a background in guardianship law and knowledge of
7
social services available to meet the needs of incapacitated
8
persons, shall serve on a full-time basis, and shall
9
personally, or through representatives of the office, carry
10
out the purposes and functions of the Statewide Public
11
Guardianship Office in accordance with state and federal law.
12
The Statewide Public Guardian executive director shall serve
13
at the pleasure of and report to the Governor.
14
(2) The Statewide Public Guardianship Office shall,
15
within available resources, have oversight responsibilities
16
for all public guardians.
17
(a) The office shall review the current public
18
guardian programs in Florida and other states.
19
(b) The office, in consultation with local
20
guardianship offices, shall develop statewide performance
21
measures and standards.
22
(c) The office shall review the various methods of
23
funding guardianship programs, the kinds of services being
24
provided by such programs, and the demographics of the wards.
25
In addition, the office shall review and make recommendations
26
regarding the feasibility of recovering a portion or all of
27
the costs of providing public guardianship services from the
28
assets or income of the wards.
29
(d) No later than October 1, 2000, the office shall
30
submit to the Governor, the President of the Senate, the
31
7
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Speaker of the House of Representatives, and the Chief Justice
1
of the Supreme Court an interim report describing the progress
2
of the office in meeting the goals as described in this
3
section. No later than January 1, 2001 October 1, 2001, the
4
office shall submit to the Governor, the President of the
5
Senate, the Speaker of the House of Representatives, and the
6
Chief Justice of the Supreme Court a proposed public
7
guardianship plan including alternatives for meeting the
8
state's guardianship needs. This plan shall may include
9
recommendations for less than the entire state, may include a
10
phase-in system, and shall include estimates of the cost of
11
each of the alternatives. Each year thereafter, or as the need
12
exists, the office shall provide a status report and provide
13
further recommendations related to address the need for public
14
guardianship services, guardianship law, guardianship
15
procedure, and related issues.
16
(e) The office may provide assistance to local
17
governments or entities in pursuing grant opportunities. The
18
office shall review and make recommendations in the annual
19
report on the availability and efficacy of seeking Medicaid
20
matching funds. The office shall diligently seek ways to use
21
existing programs and services to meet the needs of public
22
wards.
23
(f) The office shall develop a guardianship training
24
program. The training program may be offered to all guardians
25
whether public or private. The office shall establish a
26
curriculum committee that shall use the recommended minimum
27
content for the professional guardianship course developed by
28
the Florida Guardianship Education Coalition to develop the
29
training program specified in this part. The curriculum
30
committee shall include, but not be limited to, probate
31
8
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judges. A fee may be charged to private guardians in order to
1
defray the cost of providing the training. In addition, a fee
2
may be charged to any training provider for up to the actual
3
cost of the review and approval of their curriculum. Any fees
4
collected pursuant to this paragraph shall be deposited in the
5
Department of Elderly Affairs Administrative Trust Fund to be
6
used for the guardianship training program. In order to
7
facilitate development of guardianship training programs and
8
the establishment of curriculum and in order to have the
9
assistance of academicians in the area of mental health, the
10
office shall be housed at the Louis de la Parte Florida Mental
11
Health Institute on the campus of the University of South
12
Florida. The institute shall provide adequate office space and
13
support services as necessary for the office. The Statewide
14
Public Guardian may establish satellite offices in other areas
15
of the state as necessary.
16
(3) The office may conduct or contract for
17
demonstration projects, within funds appropriated or through
18
gifts, grants, or contributions for such purposes, to
19
determine the feasibility or desirability of new concepts of
20
organization, administration, financing, or service delivery
21
designed to preserve the civil and constitutional rights of
22
persons of marginal or diminished capacity. Any gifts, grants,
23
or contributions for such purposes shall be deposited in the
24
Department of Elderly Affairs Administrative Trust Fund.
25
(4) The Statewide Public Guardian may establish an
26
advisory council for the purpose of facilitating the
27
collection of expertise and assisting in the development of
28
curriculum and training programs for guardians and the
29
proposed public guardianship plan. If an advisory council is
30
31
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created, the advisory council may not consist of more than 12
1
members and shall be established as follows:
2
(a) The council shall include at least one member each
3
representing circuit court judges in probate and guardianship
4
law, the Real Property, Probate and Trust Law Section of The
5
Florida Bar, the Elder Law Section of The Florida Bar, the
6
Florida Association of Public Guardians, licensed physicians
7
specializing in geriatric medicine, the office of the Attorney
8
General as liaison on elder affairs or elder law, the State
9
Office of Long-Term Care Ombudsman, academicians or
10
researchers in the field of geriatrics who are on the faculty
11
of a university, and elder or senior citizens or consumers
12
from the elder or senior citizen community.
13
(b) Council members shall be appointed by the
14
Statewide Public Guardian, except that the elder or senior
15
citizen or consumer from the elder or senior citizen community
16
shall be appointed by the Governor.
17
(c) Council members shall be appointed for 4-year
18
staggered terms, except for any initial lesser term required
19
to achieve staggering. Members may be reappointed for an
20
additional 4-year term.
21
(d) Council members shall serve without remuneration
22
but may be reimbursed for per diem and travel expenses as
23
provided in s. 112.061 to the extent that resources are
24
available.
25
(5) In instances in which the court determines that a
26
court monitor, as provided for in s. 744.107, needs to be a
27
disinterested agency from outside the circuit, the court may
28
appoint the Statewide Public Guardian or the designee of the
29
Statewide Public Guardian, except that in no instance may the
30
Statewide Public Guardian designate the local public guardian
31
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within the circuit. The Statewide Public Guardian may be
1
awarded a reasonable fee as determined by the court to be paid
2
from the property of the ward.
3
(6)(4) The office has authority to adopt rules
4
pursuant to ss. 120.536(1) and 120.54 to carry out the
5
provisions of this section.
6
Section 5. Section 744.703, Florida Statutes, is
7
amended to read:
8
744.703 Office of public guardian; appointment,
9
notification.--
10
(1) The Statewide Public Guardian executive director
11
of the Statewide Public Guardianship Office, after
12
consultation with the chief judge and other circuit judges
13
within a the judicial circuit and with appropriate advocacy
14
groups and individuals and organizations who are knowledgeable
15
about the needs of incapacitated persons, shall may establish,
16
within a county in the judicial circuit or within the judicial
17
circuit, an office of public guardian and if so established,
18
shall create a list of persons best qualified to serve as the
19
public guardian, and such qualifications shall include review
20
pursuant to s. 744.3135. The public guardian must have
21
knowledge of the legal process and knowledge of social
22
services available to meet the needs of incapacitated persons.
23
A nonprofit corporation under s. 744.309(5) may be appointed
24
public guardian only if:
25
(a) It has been granted tax-exempt status from the
26
United States Internal Revenue Service; and
27
(b) It maintains a staff of professionally qualified
28
individuals to carry out the guardianship functions, including
29
a staff attorney who has experience in probate areas and
30
another person who has a master's degree in social work, or a
31
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gerontologist, psychologist, registered nurse, or nurse
1
practitioner.
2
(2) A public guardian appointed under this section may
3
serve more than one circuit; however, there must be an open
4
and adequately staffed office providing public guardianship
5
services within each judicial circuit served. A judicial
6
circuit may not be simultaneously served by more than one
7
public guardian. A public guardian who is not an attorney must
8
be represented by council in all guardianship proceedings.
9
(3)(2) The Statewide Public Guardian executive
10
director shall appoint or contract with a public guardian from
11
the list of candidates described in subsection (1). A public
12
guardian must meet the qualifications for a guardian as
13
prescribed in s. 744.309(1)(a). Upon appointment of a the
14
public guardian, the Statewide Public Guardian executive
15
director shall notify the chief judge of the judicial circuit
16
and the Chief Justice of the Supreme Court of Florida, in
17
writing, of the appointment.
18
(4)(3) If the needs of the county or circuit do not
19
require a full-time public guardian, a part-time public
20
guardian may be appointed at reduced compensation.
21
(5)(4) A public guardian, whether full-time or
22
part-time, may not hold any position that would create a
23
conflict of interest.
24
(6)(5) The public guardian is to be appointed for a
25
term of 4 years, after which her or his appointment must be
26
reviewed by the Statewide Public Guardian executive director,
27
and may be reappointed for a term of up to 4 years. The
28
Statewide Public Guardian executive director may suspend a
29
public guardian with or without the request of the chief
30
judge. If a public guardian is suspended, the Statewide Public
31
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Guardian executive director shall appoint an acting public
1
guardian as soon as possible to serve until such time as a
2
permanent replacement is selected. A public guardian may be
3
removed from office during the term of office only by the
4
Statewide Public Guardian, executive director who must consult
5
with the chief judge prior to said removal in accordance with
6
ss. 744.474 and 744.477. A recommendation of removal made by
7
the chief judge must be considered by the Statewide Public
8
Guardian executive director.
9
(7)(6) Public guardians who have been previously
10
appointed by a chief judge prior to the effective date of this
11
act pursuant to this section may continue in their positions
12
until the expiration of their term pursuant to their
13
agreement. However, oversight of all public guardians shall
14
transfer to the Statewide Public Guardianship Office upon the
15
effective date of this act. The executive director of the
16
Statewide Public Guardian Guardianship Office shall be
17
responsible for all future appointments of public guardians
18
pursuant to this act.
19
Section 6. Subsection (1) of section 744.704, Florida
20
Statutes, is amended and subsection (10) is added to that
21
section to read:
22
744.704 Powers and duties.--
23
(1) A public guardian may serve as a guardian of a
24
person adjudicated incapacitated under this chapter, as a
25
guardian advocate for a person adjudicated under chapter 393,
26
or as a guardian advocate for a person adjudicated under
27
chapter 394:
28
(a) If there is no family member or friend, other
29
person, bank, or corporation willing and qualified to serve as
30
guardian; and
31
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(b) If the assets of the ward do not exceed the asset
1
level for Medicaid eligibility, plus $2,000, exclusive of
2
homestead and exempt property as defined in s. 4, Art. X of
3
the State Constitution, and the ward's income, from all
4
sources, is less than $6,000 $4,000 per year. Income from
5
public welfare programs, supplemental security income,
6
optional state supplement, a disability pension, or a social
7
security pension shall be excluded in such computation.
8
However, a ward whose total income, counting excludable
9
income, exceeds $30,000 a year may not be served.
10
(10) A public guardian may not be compelled to serve
11
as a guardian advocate for a person receiving services under
12
chapter 393 or under chapter 394 if the public guardian finds
13
that he or she does not have sufficient staff to do so.
14
Section 7. Subsection (1) of section 744.705, Florida
15
Statutes, is amended to read:
16
744.705 Costs of public guardian.--
17
(1) All Costs of administration, including filing
18
fees, shall be paid from the budget of the office of public
19
guardian. No costs of administration, including filing fees,
20
shall be recovered from the assets or the income of the ward,
21
except that the court may award fees in accordance with s.
22
744.108.
23
Section 8. Subsections (4) and (8) of section 744.708,
24
Florida Statutes, are amended to read:
25
744.708 Reports and standards.--
26
(4) Within 6 months of his or her appointment as
27
guardian of a ward, the public guardian shall submit to the
28
clerk of the court for placement in the ward's guardianship
29
file and to the executive director of the Statewide Public
30
Guardian Guardianship Office a report on his or her efforts to
31
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locate a family member or friend, other person, bank, or
1
corporation to act as guardian of the ward and a report on the
2
ward's potential to be restored to capacity.
3
(8) The term "professional," for purposes of this
4
part, does shall not include the public guardian nor the
5
executive director of the Statewide Public Guardian
6
Guardianship Office. The term "professional" is shall be
7
limited to those persons who exercise direct supervision of
8
individual wards under the direction of the public guardian.
9
Section 9. Section 744.709, Florida Statutes, is
10
amended to read:
11
744.709 Surety bond.--Upon taking office, a public
12
guardian shall file a bond with surety as prescribed in s.
13
45.011 to be approved by the clerk, unless bond is waived by
14
the chief judge of the judicial circuit. The bond shall be
15
payable to the Governor and the Governor's successors in
16
office, in the penal sum of not less than $5,000 nor more than
17
$25,000, conditioned on the faithful performance of all duties
18
by the guardian. The amount of the bond shall be fixed by the
19
majority of the judges within the judicial circuit. In form
20
the bond shall be joint and several. The bond shall be
21
purchased from the funds of the local office of public
22
guardian.
23
Section 10. Each provision of this act will be
24
implemented to the extent that funds are specifically
25
appropriated in the General Appropriations Act for Fiscal Year
26
2000-2001 or that funds are available from federal or local
27
sources for a specific provision.
28
Section 11. This act shall take effect July 1, 2000.
29
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STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
1 COMMITTEE SUBSTITUTE FOR
CS/CS/SB 1048
2
3
Changes the date by which the circuit guardianship offices
4 must be operational from July 1, 2001 to October 1, 2001.
5 Removes requirement that the Statewide Public Guardian be paid
the same annual salary as public defenders.
6
Adds a requirement that one of the members of an advisory
7 council must represent the Real Property, Probate and Trust
Law Section of the Florida Bar.
8
States that the provisions of the bill will be implemented to
9 the extent funds are specifically appropriated for FY
2000-2001 or to the extent that grants funds are obtained.
10
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