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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5 ORIGINAL STAMP BELOW
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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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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
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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:
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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
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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.
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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
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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
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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
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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.
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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.
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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
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31 and insert in lieu thereof:
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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
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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.
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