House Bill hb0137c1
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Florida House of Representatives - 2002 CS/HB 137
By the Council for Healthy Communities and Representatives
Hogan, Greenstein, Pickens, Russell and Lynn
1 A bill to be entitled
2 An act relating to persons in a position of
3 trust and confidence; amending s. 825.101,
4 F.S.; defining the term "position of trust and
5 confidence"; amending s. 772.11, F.S.;
6 prescribing civil remedies for theft and other
7 offenses in which the victim is an elderly or
8 disabled person; providing that a violation of
9 patient rights is not a cause of action under
10 the act; providing for continuation of a cause
11 of action upon the death of the elderly or
12 disabled person; authorizing the court to
13 advance a trial on the docket which involves a
14 victim who is an elderly or disabled person;
15 creating s. 744.1083, F.S.; providing
16 guidelines for the registration of professional
17 guardians; authorizing rulemaking; authorizing
18 certain financial institutions to register;
19 amending s. 744.309, F.S.; revising
20 qualifications for trust companies that may be
21 appointed guardians; amending s. 744.3135,
22 F.S.; revising credit and background screening
23 requirements for guardians; providing such
24 requirements for employees of a professional
25 guardian who have a fiduciary responsibility to
26 the ward; amending s. 744.446, F.S.; providing
27 for court actions to protect the ward in the
28 event of a breach of fiduciary duty by the
29 guardian; amending s. 744.534, F.S.; revising
30 provisions relating to disposition of unclaimed
31 funds; amending s. 744.703, F.S.; authorizing
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1 the establishment of public guardian offices;
2 providing for the staffing of offices; creating
3 s. 744.7082, F.S.; defining the term
4 "direct-support organization"; providing for
5 the purposes of a direct-support organization;
6 amending s. 744.387, F.S.; increasing the
7 amount of a claim that may be settled by a
8 natural guardian of a minor without the
9 necessity of appointment of a legal guardian;
10 amending s. 744.301, F.S.; increasing the
11 amount of a claim that may be settled by a
12 natural guardian of a minor without the
13 necessity of appointment of a guardian ad
14 litem; amending s. 765.104, F.S.; authorizing a
15 patient whose legal disability is removed to
16 amend or revoke the recognition of a medical
17 proxy and any uncompleted decision made by that
18 proxy; specifying when the amendment or
19 revocation takes effect; amending s. 765.401,
20 F.S.; clarifying provisions relating to medical
21 proxies for incapacitated persons; providing
22 priority of a guardian advocate who has been
23 authorized to consent to medical treatment for
24 a person with a developmental disability;
25 providing an effective date.
26
27 Be It Enacted by the Legislature of the State of Florida:
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29 Section 1. Subsection (11) of section 825.101, Florida
30 Statutes, is amended to read:
31 825.101 Definitions.--As used in this chapter:
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1 (11) "Position of trust and confidence" with respect
2 to an elderly person or a disabled adult means the position of
3 a person who:
4 (a) Is a parent, spouse, adult child, or other
5 relative by blood or marriage of the elderly person or
6 disabled adult;
7 (b) Is a joint tenant or tenant in common with the
8 elderly person or disabled adult;
9 (c) Has a legal or fiduciary relationship with the
10 elderly person or disabled adult, including, but not limited
11 to, a court-appointed or voluntary guardian, trustee,
12 attorney, or conservator; or
13 (d) Is a caregiver of the elderly person or disabled
14 adult; or
15 (e) Is any other person who has been entrusted with or
16 has assumed responsibility for the use or management of the
17 elderly person's or disabled adult's funds, assets, or
18 property.
19 Section 2. Section 772.11, Florida Statutes, is
20 amended to read:
21 772.11 Civil remedy for theft or exploitation.--
22 (1) Any person who proves by clear and convincing
23 evidence that he or she has been injured in any fashion by
24 reason of any violation of the provisions of ss.
25 812.012-812.037 or s. 825.103(1) has a cause of action for
26 threefold the actual damages sustained and, in any such
27 action, is entitled to minimum damages in the amount of $200,
28 and reasonable attorney's fees and court costs in the trial
29 and appellate courts. Before filing an action for damages
30 under this section, the person claiming injury must make a
31 written demand for $200 or the treble damage amount of the
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1 person liable for damages under this section. If the person to
2 whom a written demand is made complies with such demand within
3 30 days after receipt of the demand, that person shall be
4 given a written release from further civil liability for the
5 specific act of theft or exploitation by the person making the
6 written demand. Any person who has a cause of action under
7 this section may recover the damages allowed under this
8 section from the parents or legal guardian of any
9 unemancipated minor who lives with his or her parents or legal
10 guardian and who is liable for damages under this section. In
11 no event shall Punitive damages may not be awarded under this
12 section. The defendant is shall be entitled to recover
13 reasonable attorney's fees and court costs in the trial and
14 appellate courts upon a finding that the claimant raised a
15 claim that which was without substantial fact or legal
16 support. In awarding attorney's fees and costs under this
17 section, the court may shall not consider the ability of the
18 opposing party to pay such fees and costs. Nothing under This
19 section does not limit shall be interpreted as limiting any
20 right to recover attorney's fees or costs provided under any
21 other provisions of law.
22 (2) For purposes of a cause of action arising under
23 this section, the term "property" does not include the rights
24 of a patient or a resident or a claim for a violation of such
25 rights.
26 (3) This section does not impose civil liability
27 regarding the provision of health care, residential care,
28 long-term care, or custodial care at a licensed facility or
29 care provided by appropriately licensed personnel in any
30 setting in which such personnel are authorized to practice.
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1 (4) The death of an elderly or disabled person does
2 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 or disabled person.
5 (5) In a civil action under this section in which an
6 elderly or disabled person is a party, the elderly or disabled
7 person may move the court to advance the trial on the docket.
8 The presiding judge, after consideration of the age and health
9 of the party, may advance the trial on the docket. The motion
10 may be filed and served with the civil complaint or at any
11 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, 2003, 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 clerk of the court
19 in each county to perform the administrative functions
20 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 or social security 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
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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 providing
11 guardian-delegated financial or personal guardianship services
12 for wards.
13 (e) Documentation that the bonding and educational
14 requirements of s. 744.1085 have been met, and that background
15 screening has been conducted pursuant to s. 744.3135.
16 (4) The Statewide Public Guardianship Office may adopt
17 rules necessary to administer this section.
18 (5) A trust company, a state banking corporation or
19 state savings association authorized and qualified to exercise
20 fiduciary powers in this state, or a national banking
21 association or federal savings and loan association authorized
22 and qualified to exercise fiduciary powers in this state, may,
23 but shall not be required to, register as a professional
24 guardian under this section. If a trust company, state banking
25 corporation, state savings association, national banking
26 association, or federal savings and loan association described
27 in this subsection elects to register as a professional
28 guardian under this subsection, the requirements of subsection
29 (3) shall not apply and the registration shall include only
30 the name, address, and employer identification number of the
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1 registrant, the name and address of its registered agent, if
2 any, and the documentation described in paragraph (3)(e).
3 Section 4. Subsection (4) of section 744.309, Florida
4 Statutes, is amended to read:
5 744.309 Who may be appointed guardian of a resident
6 ward.--
7 (4) TRUST COMPANY, STATE BANK OR SAVINGS ASSOCIATION,
8 OR NATIONAL BANK OR FEDERAL SAVINGS AND LOAN ASSOCIATION.--A
9 trust company incorporated under the laws of this state, a
10 state banking corporation or state savings association
11 authorized and qualified to exercise fiduciary powers in this
12 state, or a national banking association or federal savings
13 and loan association authorized and qualified to exercise
14 fiduciary powers in this state may act as guardian of the
15 property of the ward.
16 Section 5. Section 744.3135, Florida Statutes, is
17 amended to read:
18 744.3135 Credit and criminal investigation.--The court
19 may require a nonprofessional guardian and shall require a
20 professional or public guardian, and all employees of a
21 professional guardian who have a fiduciary responsibility to a
22 ward, to submit, at their his or her own expense, to an
23 investigation of the guardian's credit history and to undergo
24 level 2 background screening as required under s. 435.04 an
25 investigatory check by the National Crime Information Center
26 and the Florida Crime Information Center systems by means of
27 fingerprint checks by the Department of Law Enforcement and
28 the Federal Bureau of Investigation. The clerk of the court
29 shall obtain fingerprint cards from the Federal Bureau of
30 Investigation and make them available to guardians. Any
31 guardian who is so required shall have his or her fingerprints
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1 taken and forward the proper fingerprint card along with the
2 necessary fee to the Florida Department of Law Enforcement for
3 processing. The professional guardian shall pay to the clerk
4 of the court a fee of $5 for handling and processing
5 professional guardian files. The results of the fingerprint
6 checks shall be forwarded to the clerk of court who shall
7 maintain the results in a guardian file and shall make the
8 results available to the court. If credit or criminal
9 investigations are required, the court must consider the
10 results of the investigations in appointing a guardian.
11 Guardians and all employees of a professional guardian who
12 have a fiduciary responsibility to a ward, so appointed, must
13 resubmit, at their own expense, to an investigation of credit
14 history, and undergo level 1 background screening as required
15 under s. 435.03, every 2 years after the date of their
16 appointment. The court must consider the results of these
17 investigations in reappointing a guardian.
18 Section 6. Subsection (4) is added to section 744.446,
19 Florida Statutes, to read:
20 744.446 Conflicts of interest; prohibited activities;
21 court approval; breach of fiduciary duty.--
22 (4) In the event of a breach by the guardian of the
23 guardian's fiduciary duty, the court shall take those
24 necessary actions to protect the ward and the ward's assets.
25 Section 7. Paragraph (c) of subsection (2) of section
26 744.534, Florida Statutes, is amended to read:
27 744.534 Disposition of unclaimed funds held by
28 guardian.--
29 (2)
30 (c) Within 5 10 years from the date of deposit with
31 the State Treasurer, on written petition to the court that
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1 directed the deposit of the funds and informal notice to the
2 Department of Legal Affairs, and after proof of his or her
3 right to them, any person entitled to the funds, before or
4 after payment to the State Treasurer and deposit as provided
5 for in paragraph (a), may obtain a court order directing the
6 payment of the funds to him or her. All funds deposited with
7 the State Treasurer and not claimed within 5 10 years from the
8 date of deposit shall escheat to the state to be deposited in
9 the Department of Elderly Affairs Administrative Trust Fund to
10 be used solely for the benefit of public guardianship as
11 determined by the Statewide Public Guardianship Office
12 established in part IX of this chapter.
13 Section 8. Subsection (1) of section 744.703, Florida
14 Statutes, is amended to read:
15 744.703 Office of public guardian; appointment,
16 notification.--
17 (1) The executive director of the Statewide Public
18 Guardianship Office, after consultation with the chief judge
19 and other circuit judges within the judicial circuit and with
20 appropriate advocacy groups and individuals and organizations
21 who are knowledgeable about the needs of incapacitated
22 persons, may establish, within a county in the judicial
23 circuit or within the judicial circuit, one or more offices an
24 office of public guardian and if so established, shall create
25 a list of persons best qualified to serve as the public
26 guardian, who have been investigated and such qualifications
27 shall include review pursuant to s. 744.3135. The public
28 guardian must have knowledge of the legal process and
29 knowledge of social services available to meet the needs of
30 incapacitated persons. The public guardian shall maintain a
31 staff or contract with professionally qualified individuals to
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1 carry out the guardianship functions, including an attorney
2 who has experience in probate areas and another person who has
3 a master's degree in social work, or a gerontologist,
4 psychologist, registered nurse, or nurse practitioner. A
5 public guardian that is a nonprofit corporate guardian under
6 s. 744.309(5) must receive tax-exempt status from the United
7 States Internal Revenue Service. A nonprofit corporation under
8 s. 744.309(5) may be appointed public guardian only if:
9 (a) It has been granted tax-exempt status from the
10 United States Internal Revenue Service; and
11 (b) It maintains a staff of professionally qualified
12 individuals to carry out the guardianship functions, including
13 a staff attorney who has experience in probate areas and
14 another person who has a master's degree in social work, or a
15 gerontologist, psychologist, registered nurse, or nurse
16 practitioner.
17 Section 9. Section 744.7082, Florida Statutes, is
18 created to read:
19 744.7082 Direct-support organization.--
20 (1) As used in this section, the term "direct-support
21 organization" means a not-for-profit corporation incorporated
22 under chapter 617 and organized and operated to conduct
23 programs and activities; initiate developmental projects;
24 raise funds; request and receive grants, gifts, and bequests
25 of moneys; acquire, receive, hold, invest, and administer, in
26 its own name, securities, funds, objects of value, or other
27 property, real or personal; and make expenditures to or for
28 the direct or indirect benefit of the Statewide Public
29 Guardianship Office or individual offices of public guardians.
30 (2) The purposes and objectives of the direct-support
31 organization must be consistent with the priority issues and
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1 objectives of the Statewide Public Guardianship Office and
2 must be in the best interest of the state.
3 (3) The Statewide Public Guardianship Office may
4 permit, without charge, the appropriate use of property and
5 facilities of the state by the direct-support organization
6 subject to the provisions of this section. Such use must be
7 directly in keeping with the approved purpose of the
8 direct-support organization.
9 (4) The direct-support organization shall provide for
10 an annual financial audit in accordance with s. 215.981.
11 Section 10. Section 744.387, Florida Statutes, is
12 amended to read:
13 744.387 Settlement of claims.--
14 (1) When a settlement of any claim by or against the
15 guardian, whether arising as a result of personal injury or
16 otherwise, and whether arising before or after appointment of
17 a guardian, is proposed, but before an action to enforce it is
18 begun, on petition by the guardian of the property stating the
19 facts of the claim, question, or dispute and the proposed
20 settlement, and on any evidence that is introduced, the court
21 may enter an order authorizing the settlement if satisfied
22 that the settlement will be for the best interest of the ward.
23 The order shall relieve the guardian from any further
24 responsibility in connection with the claim or dispute when
25 the settlement has been made in accordance with the order.
26 The order authorizing the settlement may also determine
27 whether an additional bond is required and, if so, shall fix
28 the amount of it.
29 (2) In the same manner as provided in subsection (1)
30 or as authorized by s. 744.301, the natural guardians or
31 guardian of a minor may settle any claim by or on behalf of a
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1 minor that does not exceed $15,000 $5,000 without bond. A
2 legal guardianship shall be required when the amount of the
3 net settlement to the ward exceeds $15,000 $5,000.
4 (3)(a) No settlement after an action has been
5 commenced by or on behalf of a ward shall be effective unless
6 approved by the court having jurisdiction of the action.
7 (b) In the event of settlement or judgment in favor of
8 the ward or minor, the court may authorize the natural
9 guardians or guardian, or a guardian of the property appointed
10 by a court of competent jurisdiction, to collect the amount of
11 the settlement or judgment and to execute a release or
12 satisfaction. When the amount of net settlement to the ward
13 or judgment exceeds $15,000 $5,000 and no guardian has been
14 appointed, the court shall require the appointment of a
15 guardian for the property.
16 (4) In making a settlement under court order as
17 provided in this section, the guardian is authorized to
18 execute any instrument that may be necessary to effect the
19 settlement. When executed, the instrument shall be a complete
20 release of the person making the settlement.
21 Section 11. Subsections (2) and (4) of section
22 744.301, Florida Statutes, are amended to read:
23 744.301 Natural guardians.--
24 (2) The natural guardian or guardians are authorized,
25 on behalf of any of their minor children, to settle and
26 consummate a settlement of any claim or cause of action
27 accruing to any of their minor children for damages to the
28 person or property of any of said minor children and to
29 collect, receive, manage, and dispose of the proceeds of any
30 such settlement and of any other real or personal property
31 distributed from an estate or trust or proceeds from a life
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1 insurance policy to, or otherwise accruing to the benefit of,
2 the child during minority, when the amount involved in any
3 instance does not exceed $15,000 $5,000, without appointment,
4 authority, or bond.
5 (4)(a) In any case where a minor has a claim for
6 personal injury, property damage, or wrongful death in which
7 the gross settlement for the claim of the minor equals or
8 exceeds $15,000 $10,000, the court may, prior to the approval
9 of the settlement of the minor's claim, appoint a guardian ad
10 litem to represent the minor's interests. In any case in
11 which the gross settlement involving a minor equals or exceeds
12 $25,000, the court shall, prior to the approval of the
13 settlement of the minor's claim, appoint a guardian ad litem
14 to represent the minor's interests. The appointment of the
15 guardian ad litem must be without the necessity of bond or a
16 notice. The duty of the guardian ad litem is to protect the
17 minor's interests. The procedure for carrying out that duty
18 is as prescribed in the Florida Probate Rules. If a legal
19 guardian of the minor has previously been appointed and has no
20 potential adverse interest to the minor, the court may not
21 appoint a guardian ad litem to represent the minor's
22 interests, unless the court determines that the appointment is
23 otherwise necessary.
24 (b) Unless waived, the court shall award reasonable
25 fees and costs to the guardian ad litem to be paid out of the
26 gross proceeds of the settlement.
27 Section 12. Subsection (4) is added to section
28 765.104, Florida Statutes, to read:
29 765.104 Amendment or revocation.--
30 (4) Any patient for whom a medical proxy has been
31 recognized under s. 765.401 and for whom any previous legal
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1 disability that precluded the patient's ability to consent is
2 removed may amend or revoke the recognition of the medical
3 proxy and any uncompleted decision made by that proxy. The
4 amendment or revocation takes effect when it is communicated
5 to the proxy, the health care provider, or the health care
6 facility in writing or, if communicated orally, in the
7 presence of a third person.
8 Section 13. Subsection (1) of section 765.401, Florida
9 Statutes, is amended to read:
10 765.401 The proxy.--
11 (1) If an incapacitated or developmentally disabled
12 the patient has not executed an advance directive, or
13 designated a surrogate to execute an advance directive, or the
14 designated or alternate surrogate is no longer available to
15 make health care decisions, health care decisions may be made
16 for the patient by any of the following individuals, in the
17 following order of priority, if no individual in a prior class
18 is reasonably available, willing, or competent to act:
19 (a) The judicially appointed guardian of the patient
20 or the guardian advocate of the person having a developmental
21 disability as defined in s. 393.063, who has been authorized
22 to consent to medical treatment, if such guardian has
23 previously been appointed; however, this paragraph shall not
24 be construed to require such appointment before a treatment
25 decision can be made under this subsection;
26 (b) The patient's spouse;
27 (c) An adult child of the patient, or if the patient
28 has more than one adult child, a majority of the adult
29 children who are reasonably available for consultation;
30 (d) A parent of the patient;
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1 (e) The adult sibling of the patient or, if the
2 patient has more than one sibling, a majority of the adult
3 siblings who are reasonably available for consultation;.
4 (f) An adult relative of the patient who has exhibited
5 special care and concern for the patient and who has
6 maintained regular contact with the patient and who is
7 familiar with the patient's activities, health, and religious
8 or moral beliefs; or
9 (g) A close friend of the patient.
10 Section 14. This act shall take effect upon becoming a
11 law.
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