Senate Bill sb0374c2

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    Florida Senate - 2001                     CS for CS for SB 374

    By the Committees on Judiciary; Children and Families; and
    Senators Carlton and Peaden




    308-1938-01

  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; creating s. 744.1083, F.S.; providing

16         guidelines for the registration of public

17         guardians; authorizing rulemaking; amending s.

18         744.534, F.S.; revising provisions relating to

19         disposition of unclaimed funds; amending s.

20         744.703, F.S.; authorizing the establishment of

21         public guardian offices; providing for the

22         staffing of offices; creating s. 744.7082,

23         F.S.; defining the term "direct-support

24         organization"; providing for the purposes of a

25         direct-support organization; providing an

26         effective date.

27

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

29

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

31  Statutes, is amended to read:

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    Florida Senate - 2001                     CS for CS for SB 374
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  1         825.101  Definitions.--As used in this chapter:

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

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

  4  a person who:

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

  6  relative by blood or marriage of the elderly person or

  7  disabled adult;

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

  9  elderly person or disabled adult;

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

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

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

13  attorney, or conservator; or

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

15  adult; or

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

17  has assumed responsibility for the use or management of the

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

19  property.

20         Section 2.  Section 772.11, Florida Statutes, is

21  amended to read:

22         772.11  Civil remedy for theft or exploitation.--

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

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

25  reason of any violation of the provisions of ss.

26  812.012-812.037 or s. 825.103(1) has a cause of action for

27  threefold the actual damages sustained and, in any such

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

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

30  and appellate courts. Before filing an action for damages

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

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    Florida Senate - 2001                     CS for CS for SB 374
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  1  written demand for $200 or the treble damage amount of the

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

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

  4  30 days after receipt of the demand, that person shall be

  5  given a written release from further civil liability for the

  6  specific act of theft or exploitation by the person making the

  7  written demand. Any person who has a cause of action under

  8  this section may recover the damages allowed under this

  9  section from the parents or legal guardian of any

10  unemancipated minor who lives with his or her parents or legal

11  guardian and who is liable for damages under this section. In

12  no event shall Punitive damages may not be awarded under this

13  section.  The defendant is shall be entitled to recover

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

15  appellate courts upon a finding that the claimant raised a

16  claim that which was without substantial fact or legal

17  support. In awarding attorney's fees and costs under this

18  section, the court may shall not consider the ability of the

19  opposing party to pay such fees and costs. Nothing under This

20  section does not limit shall be interpreted as limiting any

21  right to recover attorney's fees or costs provided under any

22  other provisions of law.

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

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

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

26  rights.

27         (3)  This section does not impose civil liability

28  regarding the provision of health care, residential care,

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

30  care provided by appropriately licensed personnel in any

31  setting in which such personnel are authorized to practice.

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

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

  3  relief for theft or exploitation when the victim of the theft

  4  or exploitation is an elderly person or disabled adult.

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

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

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

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

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

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

11  complaint or at any time thereafter.

12         Section 3.  Section 744.1083, Florida Statutes, is

13  created to read:

14         744.1083  Professional guardian registration.--

15         (1)  Effective January 1, 2002, a professional guardian

16  must register with the Statewide Public Guardianship Office

17  established in part IX of this chapter. The Statewide Public

18  Guardianship Office may contract with the Florida State

19  Guardianship Association to perform the administrative

20  functions associated with registering professional guardians.

21         (2)  Annual registration shall be made on forms

22  furnished by the Statewide Public Guardianship Office and

23  accompanied by the applicable registration fee as determined

24  by rule. Such fee shall not exceed $25.

25         (3)  Registration must include the following:

26         (a)  If the professional guardian is a natural person,

27  the name, address, date of birth, and employer identification

28  number of the professional guardian.

29         (b)  If the professional guardian is a partnership or

30  association, the name, address, and date of birth of every

31

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    Florida Senate - 2001                     CS for CS for SB 374
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  1  member, and the employer identification number of the

  2  partnership or association.

  3         (c)  If the professional guardian is a corporation, the

  4  name, address and employer identification number of the

  5  corporation; the name, address, and date of birth of each of

  6  its directors and officers; the name of its resident agent;

  7  and the name, address, and date of birth of each person having

  8  at least a 10-percent interest in the corporation.

  9         (d)  The name, address, date of birth, and employer

10  identification number, if applicable, of each person employed

11  or under contract with the professional guardian who is

12  involved in providing financial or personal guardianship

13  services for wards.

14         (e)  Documentation that the bonding and educational

15  requirements of s. 744.1085 have been met, and that background

16  screening has been conducted pursuant to s. 744.3135.

17         (4)  The Statewide Public Guardianship Office may adopt

18  rules necessary to administer this section.

19         Section 4.  Paragraph (c) of subsection (2) of section

20  744.534, Florida Statutes, is amended to read:

21         744.534  Disposition of unclaimed funds held by

22  guardian.--

23         (2)

24         (c)  Within 5 10 years from the date of deposit with

25  the State Treasurer, on written petition to the court that

26  directed the deposit of the funds and informal notice to the

27  Department of Legal Affairs, and after proof of his or her

28  right to them, any person entitled to the funds, before or

29  after payment to the State Treasurer and deposit as provided

30  for in paragraph (a), may obtain a court order directing the

31  payment of the funds to him or her. All funds deposited with

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    Florida Senate - 2001                     CS for CS for SB 374
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  1  the State Treasurer and not claimed within 5 10 years from the

  2  date of deposit shall escheat to the state to be deposited in

  3  the Department of Elderly Affairs Trust Fund to be used solely

  4  for the benefit of public guardianship as determined by the

  5  Statewide Public Guardianship Office established in part IX of

  6  this chapter.

  7         Section 5.  Subsection (1) of section 744.703, Florida

  8  Statutes, is amended to read:

  9         744.703  Office of public guardian; appointment,

10  notification.--

11         (1)  The executive director of the Statewide Public

12  Guardianship Office, after consultation with the chief judge

13  and other circuit judges within the judicial circuit and with

14  appropriate advocacy groups and individuals and organizations

15  who are knowledgeable about the needs of incapacitated

16  persons, may establish, within a county in the judicial

17  circuit or within the judicial circuit, one or more offices an

18  office of public guardian and if so established, shall create

19  a list of persons best qualified to serve as the public

20  guardian, who have been investigated and such qualifications

21  shall include review pursuant to s. 744.3135. The public

22  guardian must have knowledge of the legal process and

23  knowledge of social services available to meet the needs of

24  incapacitated persons. The public guardian shall maintain a

25  staff or contract with professionally qualified individuals to

26  carry out the guardianship functions, including an attorney

27  who has experience in probate areas and another person who has

28  a master's degree in social work, or a gerontologist,

29  psychologist, registered nurse, or nurse practitioner. A

30  public guardian that is a nonprofit corporate guardian under

31  s. 744.309(5) must receive tax-exempt status from the United

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  1  States Internal Revenue Service. A nonprofit corporation under

  2  s. 744.309(5) may be appointed public guardian only if:

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

  4  United States Internal Revenue Service; and

  5         (b)  It maintains a staff of professionally qualified

  6  individuals to carry out the guardianship functions, including

  7  a staff attorney who has experience in probate areas and

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

  9  gerontologist, psychologist, registered nurse, or nurse

10  practitioner.

11         Section 6.  Section 744.7082, Florida Statutes, is

12  created to read:

13         744.7082  Direct-support organization.--

14         (1)  As used in this section, the term "direct-support

15  organization" means a not-for-profit corporation incorporated

16  under chapter 617 and organized and operated to conduct

17  programs and activities; initiate developmental projects;

18  raise funds; request and receive grants, gifts, and bequests

19  of moneys; acquire, receive, hold, invest, and administer, in

20  its own name, securities, funds, objects of value, or other

21  property, real or personal; and make expenditures to or for

22  the direct or indirect benefit of the Statewide Public

23  Guardianship Office or individual offices of public guardians.

24         (2)  The purposes and objectives of the direct-support

25  organization must be consistent with the priority issues and

26  objectives of the Statewide Public Guardianship Office and

27  must be in the best interest of the state.

28         (3)  The Statewide Public Guardianship Office may

29  permit, without charge, the appropriate use of property and

30  facilities of the state by the direct-support organization

31  subject to the provisions of this section. Such use must be

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  1  directly in keeping with the approved purpose of the

  2  direct-support organization.

  3         (4)  The direct-support organization shall provide for

  4  an annual post audit of its financial accounts to be conducted

  5  by an independent certified public accountant. The annual

  6  audit report shall include a management letter and shall be

  7  submitted to the Auditor General and the Statewide Public

  8  Guardianship Office for review. The Statewide Public

  9<