Senate Bill sb0374c1

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    Florida Senate - 2001                            CS for SB 374

    By the Committee on Children and Families; and Senators
    Carlton and Peaden




    300-1483-01

  1                      A bill to be entitled

  2         An act relating to elderly persons and disabled

  3         adults; amending s. 825.101, F.S.; defining the

  4         term "position of trust and confidence";

  5         amending s. 772.11, F.S.; prescribing civil

  6         remedies for theft and other offenses in which

  7         the victim is an elderly person or disabled

  8         adult; providing that a violation of patient

  9         rights is not a cause of action under the act;

10         providing for continuation of a cause of action

11         upon the death of the elderly person or

12         disabled adult; authorizing the court to

13         advance a trial on the docket which involves a

14         victim who is an elderly person or disabled

15         adult; providing an effective date.

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

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19         Section 1.  Subsection (11) of section 825.101, Florida

20  Statutes, is amended to read:

21         825.101  Definitions.--As used in this chapter:

22         (11)  "Position of trust and confidence" with respect

23  to an elderly person or a disabled adult means the position of

24  a person who:

25         (a)  Is a parent, spouse, adult child, or other

26  relative by blood or marriage of the elderly person or

27  disabled adult;

28         (b)  Is a joint tenant or tenant in common with the

29  elderly person or disabled adult;

30         (c)  Has a legal or fiduciary relationship with the

31  elderly person or disabled adult, including, but not limited

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    Florida Senate - 2001                            CS for SB 374
    300-1483-01




  1  to, a court-appointed or voluntary guardian, trustee,

  2  attorney, or conservator; or

  3         (d)  Is a caregiver of the elderly person or disabled

  4  adult; or

  5         (e)  Is any other person who has been entrusted with or

  6  has assumed responsibility for the use or management of the

  7  elderly person's or disabled adult's funds, assets, or

  8  property.

  9         Section 2.  Section 772.11, Florida Statutes, is

10  amended to read:

11         772.11  Civil remedy for theft.--

12         (1)  Any person who proves by clear and convincing

13  evidence that he or she has been injured in any fashion by

14  reason of any violation of the provisions of ss.

15  812.012-812.037 or s. 825.103(1) has a cause of action for

16  threefold the actual damages sustained and, in any such

17  action, is entitled to minimum damages in the amount of $200,

18  and reasonable attorney's fees and court costs in the trial

19  and appellate courts. Before filing an action for damages

20  under this section, the person claiming injury must make a

21  written demand for $200 or the treble damage amount of the

22  person liable for damages under this section. If the person to

23  whom a written demand is made complies with such demand within

24  30 days after receipt of the demand, that person shall be

25  given a written release from further civil liability for the

26  specific act of theft by the person making the written demand.

27  Any person who has a cause of action under this section may

28  recover the damages allowed under this section from the

29  parents or legal guardian of any unemancipated minor who lives

30  with his or her parents or legal guardian and who is liable

31  for damages under this section. In no event shall Punitive

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    Florida Senate - 2001                            CS for SB 374
    300-1483-01




  1  damages may not be awarded under this section.  The defendant

  2  is shall be entitled to recover reasonable attorney's fees and

  3  court costs in the trial and appellate courts upon a finding

  4  that the claimant raised a claim that which was without

  5  substantial fact or legal support. In awarding attorney's fees

  6  and costs under this section, the court may shall not consider

  7  the ability of the opposing party to pay such fees and costs.

  8  Nothing under This section does not limit shall be interpreted

  9  as limiting any right to recover attorney's fees or costs

10  provided under any other provisions of law.

11         (2)  For purposes of a cause of action arising under

12  this section, the term "property" does not include the rights

13  of a patient or a resident or a claim for a violation of such

14  rights.

15         (3)  This section does not impose civil liability

16  regarding the provision of health care, residential care,

17  long-term care, or custodial care at a licensed facility or

18  care provided by appropriately licensed personnel in any

19  setting in which such personnel are authorized to practice.

20         (4)  The death of an elderly person or disabled adult

21  does not cause the court to lose jurisdiction of any claim for

22  relief for theft when the victim of the theft is an elderly

23  person or disabled adult.

24         (5)  Upon petition, after the death of an elderly

25  person or disabled adult, the right of the decedent to

26  maintain an action under this section shall be transferred to

27  the personal representative of the decedent or, if there is no

28  personal representative, to the person entitled to succeed to

29  the decedent's estate.

30         (6)  In a civil action under this section in which an

31  elderly person or disabled adult is a party, the elderly

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    Florida Senate - 2001                            CS for SB 374
    300-1483-01




  1  person or disabled adult may move the court to advance the

  2  trial on the docket. The presiding judge, after consideration

  3  of the age and health of the party, may advance the trial on

  4  the docket. The motion may be filed and served with the civil

  5  complaint or at any time thereafter.

  6         Section 3.  This act shall take effect July 1, 2001.

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  8          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  9                         Senate Bill 374

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11  Removes the requirement that the Department of Children and
    Family Services maintain a list of professional guardians and
12  select a professional guardian on a rotating basis when
    petitioning the court for the appointment of a professional
13  guardian under ch. 744, F.S.

14  Removes the requirement that the professional guardian accept
    at least one indigent case for every three cases accepted.
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