HOUSE AMENDMENT
    768-112AX-08                                Bill No. CS/HB 793
    Amendment No. ___ (for drafter's use only)
                            CHAMBER ACTION
              Senate                               House
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11  Representative(s) Hogan offered the following:
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13         Amendment (with title amendment) 
14  Remove from the bill:  Everything after the enacting clause
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16  and insert in lieu thereof:  
17         Section 1.  Subsection (11) of section 825.101, Florida
18  Statutes, is amended to read:
19         825.101  Definitions.--As used in this chapter:
20         (11)  "Position of trust and confidence" with respect
21  to an elderly person or a disabled adult means the position of
22  a person who:
23         (a)  Is a parent, spouse, adult child, or other
24  relative by blood or marriage of the elderly person or
25  disabled adult;
26         (b)  Is a joint tenant or tenant in common with the
27  elderly person or disabled adult;
28         (c)  Has a legal or fiduciary relationship with the
29  elderly person or disabled adult, including, but not limited
30  to, a court-appointed or voluntary guardian, trustee,
31  attorney, or conservator; or
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    File original & 9 copies    04/30/01                          
    hbd0007                     10:54 am         00793-0013-142903

HOUSE AMENDMENT 768-112AX-08 Bill No. CS/HB 793 Amendment No. ___ (for drafter's use only) 1 (d) Is a caregiver of the elderly person or disabled 2 adult; or 3 (e) Is any other person who has been entrusted with or 4 has assumed responsibility for the use or management of the 5 elderly person's or disabled adult's funds, assets, or 6 property. 7 Section 2. Section 772.11, Florida Statutes, is 8 amended to read: 9 772.11 Civil remedy for theft or exploitation.-- 10 (1) Any person who proves by clear and convincing 11 evidence that he or she has been injured in any fashion by 12 reason of any violation of the provisions of ss. 13 812.012-812.037 or s. 825.103(1) has a cause of action for 14 threefold the actual damages sustained and, in any such 15 action, is entitled to minimum damages in the amount of $200, 16 and reasonable attorney's fees and court costs in the trial 17 and appellate courts. Before filing an action for damages 18 under this section, the person claiming injury must make a 19 written demand for $200 or the treble damage amount of the 20 person liable for damages under this section. If the person to 21 whom a written demand is made complies with such demand within 22 30 days after receipt of the demand, that person shall be 23 given a written release from further civil liability for the 24 specific act of theft or exploitation by the person making the 25 written demand. Any person who has a cause of action under 26 this section may recover the damages allowed under this 27 section from the parents or legal guardian of any 28 unemancipated minor who lives with his or her parents or legal 29 guardian and who is liable for damages under this section. In 30 no event shall Punitive damages may not be awarded under this 31 section. The defendant is shall be entitled to recover 2 File original & 9 copies 04/30/01 hbd0007 10:54 am 00793-0013-142903
HOUSE AMENDMENT 768-112AX-08 Bill No. CS/HB 793 Amendment No. ___ (for drafter's use only) 1 reasonable attorney's fees and court costs in the trial and 2 appellate courts upon a finding that the claimant raised a 3 claim that which was without substantial fact or legal 4 support. In awarding attorney's fees and costs under this 5 section, the court may shall not consider the ability of the 6 opposing party to pay such fees and costs. Nothing under This 7 section does not limit shall be interpreted as limiting any 8 right to recover attorney's fees or costs provided under any 9 other provisions of law. 10 (2) For purposes of a cause of action arising under 11 this section, the term "property" does not include the rights 12 of a patient or a resident or a claim for a violation of such 13 rights. 14 (3) This section does not impose civil liability 15 regarding the provision of health care, residential care, 16 long-term care, or custodial care at a licensed facility or 17 care provided by appropriately licensed personnel in any 18 setting in which such personnel are authorized to practice. 19 (4) The death of an elderly person or disabled adult 20 does not cause the court to lose jurisdiction of any claim for 21 relief for theft or exploitation when the victim of the theft 22 or exploitation is an elderly person or disabled adult. 23 (5) In a civil action under this section in which an 24 elderly person or disabled adult is a party, the elderly 25 person or disabled adult may move the court to advance the 26 trial on the docket. The presiding judge, after consideration 27 of the age and health of the party, may advance the trial on 28 the docket. The motion may be filed and served with the civil 29 complaint or at any time thereafter. 30 Section 3. Section 744.1083, Florida Statutes, is 31 created to read: 3 File original & 9 copies 04/30/01 hbd0007 10:54 am 00793-0013-142903
HOUSE AMENDMENT 768-112AX-08 Bill No. CS/HB 793 Amendment No. ___ (for drafter's use only) 1 744.1083 Professional guardian registration.-- 2 (1) Effective January 1, 2002, a professional guardian 3 must register with the Statewide Public Guardianship Office 4 established in part IX of this chapter. The Statewide Public 5 Guardianship Office may contract with the Florida State 6 Guardianship Association to perform the administrative 7 functions associated with registering professional guardians. 8 (2) Annual registration shall be made on forms 9 furnished by the Statewide Public Guardianship Office and 10 accompanied by the applicable registration fee as determined 11 by rule. Such fee shall not exceed $25. 12 (3) Registration must include the following: 13 (a) If the professional guardian is a natural person, 14 the name, address, date of birth, and employer identification 15 number of the professional guardian. 16 (b) If the professional guardian is a partnership or 17 association, the name, address, and date of birth of every 18 member, and the employer identification number of the 19 partnership or association. 20 (c) If the professional guardian is a corporation, the 21 name, address and employer identification number of the 22 corporation; the name, address, and date of birth of each of 23 its directors and officers; the name of its resident agent; 24 and the name, address, and date of birth of each person having 25 at least a 10-percent interest in the corporation. 26 (d) The name, address, date of birth, and employer 27 identification number, if applicable, of each person employed 28 or under contract with the professional guardian who is 29 involved in providing financial or personal guardianship 30 services for wards. 31 (e) Documentation that the bonding and educational 4 File original & 9 copies 04/30/01 hbd0007 10:54 am 00793-0013-142903
HOUSE AMENDMENT 768-112AX-08 Bill No. CS/HB 793 Amendment No. ___ (for drafter's use only) 1 requirements of s. 744.1085 have been met, and that background 2 screening has been conducted pursuant to s. 744.3135. 3 (4) The Statewide Public Guardianship Office may adopt 4 rules necessary to administer this section. 5 (5) A trust company incorporated under the laws of 6 this state, a state banking corporation or state savings 7 association authorized and qualified to exercise fiduciary 8 powers in this state, or a national banking association or 9 federal savings and loan association authorized and qualified 10 to exercise fiduciary powers in this state, may, but shall not 11 be required to, register as a professional guardian under this 12 section. 13 Section 4. Paragraph (c) of subsection (2) of section 14 744.534, Florida Statutes, is amended to read: 15 744.534 Disposition of unclaimed funds held by 16 guardian.-- 17 (2) 18 (c) Within 5 10 years from the date of deposit with 19 the State Treasurer, on written petition to the court that 20 directed the deposit of the funds and informal notice to the 21 Department of Legal Affairs, and after proof of his or her 22 right to them, any person entitled to the funds, before or 23 after payment to the State Treasurer and deposit as provided 24 for in paragraph (a), may obtain a court order directing the 25 payment of the funds to him or her. All funds deposited with 26 the State Treasurer and not claimed within 5 10 years from the 27 date of deposit shall escheat to the state to be deposited in 28 the Department of Elderly Affairs Trust Fund to be used solely 29 for the benefit of public guardianship as determined by the 30 Statewide Public Guardianship Office established in part IX of 31 this chapter. 5 File original & 9 copies 04/30/01 hbd0007 10:54 am 00793-0013-142903
HOUSE AMENDMENT 768-112AX-08 Bill No. CS/HB 793 Amendment No. ___ (for drafter's use only) 1 Section 5. Subsection (1) of section 744.703, Florida 2 Statutes, is amended to read: 3 744.703 Office of public guardian; appointment, 4 notification.-- 5 (1) The executive director of the Statewide Public 6 Guardianship Office, after consultation with the chief judge 7 and other circuit judges within the judicial circuit and with 8 appropriate advocacy groups and individuals and organizations 9 who are knowledgeable about the needs of incapacitated 10 persons, may establish, within a county in the judicial 11 circuit or within the judicial circuit, one or more offices an 12 office of public guardian and if so established, shall create 13 a list of persons best qualified to serve as the public 14 guardian, who have been investigated and such qualifications 15 shall include review pursuant to s. 744.3135. The public 16 guardian must have knowledge of the legal process and 17 knowledge of social services available to meet the needs of 18 incapacitated persons. The public guardian shall maintain a 19 staff or contract with professionally qualified individuals to 20 carry out the guardianship functions, including an attorney 21 who has experience in probate areas and another person who has 22 a master's degree in social work, or a gerontologist, 23 psychologist, registered nurse, or nurse practitioner. A 24 public guardian that is a nonprofit corporate guardian under 25 s. 744.309(5) must receive tax-exempt status from the United 26 States Internal Revenue Service. A nonprofit corporation under 27 s. 744.309(5) may be appointed public guardian only if: 28 (a) It has been granted tax-exempt status from the 29 United States Internal Revenue Service; and 30 (b) It maintains a staff of professionally qualified 31 individuals to carry out the guardianship functions, including 6 File original & 9 copies 04/30/01 hbd0007 10:54 am 00793-0013-142903
HOUSE AMENDMENT 768-112AX-08 Bill No. CS/HB 793 Amendment No. ___ (for drafter's use only) 1 a staff attorney who has experience in probate areas and 2 another person who has a master's degree in social work, or a 3 gerontologist, psychologist, registered nurse, or nurse 4 practitioner. 5 Section 6. Section 744.7082, Florida Statutes, is 6 created to read: 7 744.7082 Direct-support organization.-- 8 (1) As used in this section, the term "direct-support 9 organization" means a not-for-profit corporation incorporated 10 under chapter 617 and organized and operated to conduct 11 programs and activities; initiate developmental projects; 12 raise funds; request and receive grants, gifts, and bequests 13 of moneys; acquire, receive, hold, invest, and administer, in 14 its own name, securities, funds, objects of value, or other 15 property, real or personal; and make expenditures to or for 16 the direct or indirect benefit of the Statewide Public 17 Guardianship Office or individual offices of public guardians. 18 (2) The purposes and objectives of the direct-support 19 organization must be consistent with the priority issues and 20 objectives of the Statewide Public Guardianship Office and 21 must be in the best interest of the state. 22 (3) The Statewide Public Guardianship Office may 23 permit, without charge, the appropriate use of property and 24 facilities of the state by the direct-support organization 25 subject to the provisions of this section. Such use must be 26 directly in keeping with the approved purpose of the 27 direct-support organization. 28 (4) The direct-support organization shall provide for 29 an annual post audit of its financial accounts to be conducted 30 by an independent certified public accountant. The annual 31 audit report shall include a management letter and shall be 7 File original & 9 copies 04/30/01 hbd0007 10:54 am 00793-0013-142903
HOUSE AMENDMENT 768-112AX-08 Bill No. CS/HB 793 Amendment No. ___ (for drafter's use only) 1 submitted to the Auditor General and the Statewide Public 2 Guardianship Office for review. The Statewide Public 3 Guardianship Office and the Auditor General have the authority 4 to require and receive from the organization or from its 5 independent auditor any detail or supplemental data relative 6 to the operation of the organization. 7 Section 7. Section 744.387, Florida Statutes, is 8 amended to read: 9 744.387 Settlement of claims.-- 10 (1) When a settlement of any claim by or against the 11 guardian, whether arising as a result of personal injury or 12 otherwise, and whether arising before or after appointment of 13 a guardian, is proposed, but before an action to enforce it is 14 begun, on petition by the guardian of the property stating the 15 facts of the claim, question, or dispute and the proposed 16 settlement, and on any evidence that is introduced, the court 17 may enter an order authorizing the settlement if satisfied 18 that the settlement will be for the best interest of the ward. 19 The order shall relieve the guardian from any further 20 responsibility in connection with the claim or dispute when 21 the settlement has been made in accordance with the order. 22 The order authorizing the settlement may also determine 23 whether an additional bond is required and, if so, shall fix 24 the amount of it. 25 (2) In the same manner as provided in subsection (1) 26 or as authorized by s. 744.301, the natural guardians or 27 guardian of a minor may settle any claim by or on behalf of a 28 minor that does not exceed $15,000 $5,000 without bond. A 29 legal guardianship shall be required when the amount of the 30 net settlement to the ward exceeds $15,000 $5,000. 31 (3)(a) No settlement after an action has been 8 File original & 9 copies 04/30/01 hbd0007 10:54 am 00793-0013-142903
HOUSE AMENDMENT 768-112AX-08 Bill No. CS/HB 793 Amendment No. ___ (for drafter's use only) 1 commenced by or on behalf of a ward shall be effective unless 2 approved by the court having jurisdiction of the action. 3 (b) In the event of settlement or judgment in favor of 4 the ward or minor, the court may authorize the natural 5 guardians or guardian, or a guardian of the property appointed 6 by a court of competent jurisdiction, to collect the amount of 7 the settlement or judgment and to execute a release or 8 satisfaction. When the amount of net settlement to the ward 9 or judgment exceeds $15,000 $5,000 and no guardian has been 10 appointed, the court shall require the appointment of a 11 guardian for the property. 12 (4) In making a settlement under court order as 13 provided in this section, the guardian is authorized to 14 execute any instrument that may be necessary to effect the 15 settlement. When executed, the instrument shall be a complete 16 release of the person making the settlement. 17 Section 8. Subsections (2) and (4) of section 744.301, 18 Florida Statutes, are amended to read: 19 744.301 Natural guardians.-- 20 (2) The natural guardian or guardians are authorized, 21 on behalf of any of their minor children, to settle and 22 consummate a settlement of any claim or cause of action 23 accruing to any of their minor children for damages to the 24 person or property of any of said minor children and to 25 collect, receive, manage, and dispose of the proceeds of any 26 such settlement and of any other real or personal property 27 distributed from an estate or trust or proceeds from a life 28 insurance policy to, or otherwise accruing to the benefit of, 29 the child during minority, when the amount involved in any 30 instance does not exceed $15,000 $5,000, without appointment, 31 authority, or bond. 9 File original & 9 copies 04/30/01 hbd0007 10:54 am 00793-0013-142903
HOUSE AMENDMENT 768-112AX-08 Bill No. CS/HB 793 Amendment No. ___ (for drafter's use only) 1 (4)(a) In any case where a minor has a claim for 2 personal injury, property damage, or wrongful death in which 3 the gross settlement for the claim of the minor equals or 4 exceeds $15,000 $10,000, the court may, prior to the approval 5 of the settlement of the minor's claim, appoint a guardian ad 6 litem to represent the minor's interests. In any case in 7 which the gross settlement involving a minor equals or exceeds 8 $25,000, the court shall, prior to the approval of the 9 settlement of the minor's claim, appoint a guardian ad litem 10 to represent the minor's interests. The appointment of the 11 guardian ad litem must be without the necessity of bond or a 12 notice. The duty of the guardian ad litem is to protect the 13 minor's interests. The procedure for carrying out that duty 14 is as prescribed in the Florida Probate Rules. If a legal 15 guardian of the minor has previously been appointed and has no 16 potential adverse interest to the minor, the court may not 17 appoint a guardian ad litem to represent the minor's 18 interests, unless the court determines that the appointment is 19 otherwise necessary. 20 (b) Unless waived, the court shall award reasonable 21 fees and costs to the guardian ad litem to be paid out of the 22 gross proceeds of the settlement. 23 Section 9. This act shall take effect upon becoming a 24 law. 25 26 27 ================ T I T L E A M E N D M E N T =============== 28 And the title is amended as follows: 29 remove from the title of the bill: the entire title 30 31 and insert in lieu thereof: 10 File original & 9 copies 04/30/01 hbd0007 10:54 am 00793-0013-142903
HOUSE AMENDMENT 768-112AX-08 Bill No. CS/HB 793 Amendment No. ___ (for drafter's use only) 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; authorizing 18 certain financial institutions to register; 19 amending s. 744.534, F.S.; revising provisions 20 relating to disposition of unclaimed funds; 21 amending s. 744.703, F.S.; authorizing the 22 establishment of public guardian offices; 23 providing for the staffing of offices; creating 24 s. 744.7082, F.S.; defining the term 25 "direct-support organization"; providing for 26 the purposes of a direct-support organization; 27 amending s. 744.387, F.S.; raising the amount 28 of a claim that may be settled by a natural 29 guardian of a minor without the necessity of 30 appointment of a legal guardian; amending s. 31 744.301, F.S.; raising the amount of a claim 11 File original & 9 copies 04/30/01 hbd0007 10:54 am 00793-0013-142903
HOUSE AMENDMENT 768-112AX-08 Bill No. CS/HB 793 Amendment No. ___ (for drafter's use only) 1 that may be settled by a natural guardian of a 2 minor without the necessity of appointment of a 3 guardian ad litem; providing an effective date. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 12 File original & 9 copies 04/30/01 hbd0007 10:54 am 00793-0013-142903