House Bill hb0793

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    Florida House of Representatives - 2001                 HB 793

        By Representative Hogan






  1                      A bill to be entitled

  2         An act relating to elderly persons and disabled

  3         adults; requiring that the Department of

  4         Children and Family Services select

  5         professional guardians on a rotating basis from

  6         a list of guardians who have agreed to serve;

  7         requiring that any such guardian agree to

  8         accept a certain proportion of indigent cases;

  9         amending s. 825.101, F.S.; defining the term

10         "position of trust and confidence"; amending s.

11         772.11, F.S.; prescribing civil remedies for

12         theft and other offenses in which the victim is

13         an elderly person or disabled adult; providing

14         that a violation of patient rights is not a

15         cause of action under the act; providing for

16         continuation of a cause of action upon the

17         death of the elderly person or disabled adult;

18         authorizing the court to advance a trial on the

19         docket which involves a victim who is an

20         elderly person or disabled adult; providing an

21         effective date.

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

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25         Section 1.  Appointment of professional guardian.--When

26  the Department of Children and Family Services petitions for

27  the appointment of a professional guardian under chapter 744,

28  Florida Statutes, or refers a case to a professional guardian,

29  the department shall select a guardian, on a rotating basis,

30  from a list of professional guardians who have communicated to

31  the department their willingness to serve. In order to be

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    Florida House of Representatives - 2001                 HB 793

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  1  included on the department's list, a professional guardian

  2  must agree to accept at least one indigent case for every

  3  three cases that the guardian accepts.

  4         Section 2.  Subsection (11) of section 825.101, Florida

  5  Statutes, is amended to read:

  6         825.101  Definitions.--As used in this chapter:

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

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

  9  a person who:

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

11  relative by blood or marriage of the elderly person or

12  disabled adult;

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

14  elderly person or disabled adult;

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

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

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

18  attorney, or conservator; or

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

20  adult; or

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

22  has assumed responsibility for the use or management of the

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

24  property.

25         Section 3.  Section 772.11, Florida Statutes, is

26  amended to read:

27         772.11  Civil remedy for theft.--

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

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

30  reason of any violation of the provisions of ss.

31  812.012-812.037 or s. 825.103(1) has a cause of action for

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  1  threefold the actual damages sustained and, in any such

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

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

  4  and appellate courts. Before filing an action for damages

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

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

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

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

  9  30 days after receipt of the demand, that person shall be

10  given a written release from further civil liability for the

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

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

13  recover the damages allowed under this section from the

14  parents or legal guardian of any unemancipated minor who lives

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

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

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

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

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

20  that the claimant raised a claim that which was without

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

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

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

24  Nothing under This section does not limit shall be interpreted

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

26  provided under any other provisions of law.

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

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

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

30  rights.

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  1         (3)  This section does not impose civil liability

  2  regarding the provision of health care, residential care,

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

  4  care provided by appropriately licensed personnel in any

  5  setting in which such personnel are authorized to practice.

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

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

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

  9  person or disabled adult.

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

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

12  maintain an action under this section shall be transferred to

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

14  personal representative, to the person entitled to succeed to

15  the decedent's estate.

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

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

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

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

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

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

22  complaint or at any time thereafter.

23         Section 4.  This act shall take effect July 1, 2001.

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    Florida House of Representatives - 2001                 HB 793

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  2                          SENATE SUMMARY

  3    Requires that professional guardians appointed by the
      court or selected by the Department of Children and
  4    Family Services be selected on a rotating basis from a
      list compiled by the department. Requires that a guardian
  5    on the department's list agree to accept at least one
      indigent case for every three cases. Provides civil
  6    remedies for the exploitation of an elderly person or
      disabled adult. Provides that a violation of patient
  7    rights is not a cause of action for civil remedies under
      the act. Upon the death of the elderly person or disabled
  8    adult who has a civil cause of action, authorizes the
      court to transfer the right to maintain the action to the
  9    decedent's personal representative. Provides for the
      court to advance on the docket a case involving a victim
10    who is an elderly person or disabled adult.

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