House Bill hb0137e1

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                                        CS/HB 137, First Engrossed



  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; providing applicability; amending s.

27         744.446, F.S.; providing for court actions to

28         protect the ward in the event of a breach of

29         fiduciary duty by the guardian; amending s.

30         744.534, F.S.; revising provisions relating to

31         disposition of unclaimed funds; amending s.


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                                        CS/HB 137, First Engrossed



  1         744.703, F.S.; authorizing the establishment of

  2         public guardian offices; providing for the

  3         staffing of offices; creating s. 744.7082,

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

  5         organization"; providing for the purposes of a

  6         direct-support organization; amending s.

  7         744.387, F.S.; increasing the amount of a claim

  8         that may be settled by a natural guardian of a

  9         minor without the necessity of appointment of a

10         legal guardian; amending s. 744.301, F.S.;

11         increasing the amount of a claim that may be

12         settled by a natural guardian of a minor

13         without the necessity of appointment of a

14         guardian ad litem; amending s. 765.104, F.S.;

15         authorizing a patient whose legal disability is

16         removed to amend or revoke the recognition of a

17         medical proxy and any uncompleted decision made

18         by that 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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                                        CS/HB 137, First Engrossed



  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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                                        CS/HB 137, First Engrossed



  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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                                        CS/HB 137, First Engrossed



  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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                                        CS/HB 137, First Engrossed



  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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                                        CS/HB 137, First Engrossed



  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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                                        CS/HB 137, First Engrossed



  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. This section shall

18  not apply to a professional guardian, or to the employees of a

19  professional guardian, that is a trust company, a state

20  banking corporation or state savings association authorized

21  and qualified to exercise fiduciary powers in this state, or a

22  national banking association or federal savings and loan

23  association authorized and qualified to exercise fiduciary

24  powers in this state.

25         Section 6.  Subsection (4) is added to section 744.446,

26  Florida Statutes,  to read:

27         744.446  Conflicts of interest; prohibited activities;

28  court approval; breach of fiduciary duty.--

29         (4)  In the event of a breach by the guardian of the

30  guardian's fiduciary duty, the court shall take those

31  necessary actions to protect the ward and the ward's assets.


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                                        CS/HB 137, First Engrossed



  1         Section 7.  Paragraph (c) of subsection (2) of section

  2  744.534, Florida Statutes, is amended to read:

  3         744.534  Disposition of unclaimed funds held by

  4  guardian.--

  5         (2)

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

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

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

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

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

11  after payment to the State Treasurer and deposit as provided

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

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

14  the State Treasurer and not claimed within 5 10 years from the

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

16  the Department of Elderly Affairs Administrative Trust Fund to

17  be used solely for the benefit of public guardianship as

18  determined by the Statewide Public Guardianship Office

19  established in part IX of this chapter.

20         Section 8.  Subsection (1) of section 744.703, Florida

21  Statutes, is amended to read:

22         744.703  Office of public guardian; appointment,

23  notification.--

24         (1)  The executive director of the Statewide Public

25  Guardianship Office, after consultation with the chief judge

26  and other circuit judges within the judicial circuit and with

27  appropriate advocacy groups and individuals and organizations

28  who are knowledgeable about the needs of incapacitated

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

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

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


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                                        CS/HB 137, First Engrossed



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

  2  guardian, who have been investigated and such qualifications

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

  4  guardian must have knowledge of the legal process and

  5  knowledge of social services available to meet the needs of

  6  incapacitated persons. The public guardian shall maintain a

  7  staff or contract with professionally qualified individuals to

  8  carry out the guardianship functions, including an attorney

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

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

11  psychologist, registered nurse, or nurse practitioner. A

12  public guardian that is a nonprofit corporate guardian under

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

14  States Internal Revenue Service. A nonprofit corporation under

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

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

17  United States Internal Revenue Service; and

18         (b)  It maintains a staff of professionally qualified

19  individuals to carry out the guardianship functions, including

20  a staff attorney who has experience in probate areas and

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

22  gerontologist, psychologist, registered nurse, or nurse

23  practitioner.

24         Section 9.  Section 744.7082, Florida Statutes, is

25  created to read:

26         744.7082  Direct-support organization.--

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

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

29  under chapter 617 and organized and operated to conduct

30  programs and activities; initiate developmental projects;

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


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                                        CS/HB 137, First Engrossed



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

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

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

  4  the direct or indirect benefit of the Statewide Public

  5  Guardianship Office or individual offices of public guardians.

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

  7  organization must be consistent with the priority issues and

  8  objectives of the Statewide Public Guardianship Office and

  9  must be in the best interest of the state.

10         (3)  The Statewide Public Guardianship Office may

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

12  facilities of the state by the direct-support organization

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

14  directly in keeping with the approved purpose of the

15  direct-support organization.

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

17  an annual financial audit in accordance with s. 215.981.

18         Section 10.  Section 744.387, Florida Statutes, is

19  amended to read:

20         744.387  Settlement of claims.--

21         (1)  When a settlement of any claim by or against the

22  guardian, whether arising as a result of personal injury or

23  otherwise, and whether arising before or after appointment of

24  a guardian, is proposed, but before an action to enforce it is

25  begun, on petition by the guardian of the property stating the

26  facts of the claim, question, or dispute and the proposed

27  settlement, and on any evidence that is introduced, the court

28  may enter an order authorizing the settlement if satisfied

29  that the settlement will be for the best interest of the ward.

30  The order shall relieve the guardian from any further

31  responsibility in connection with the claim or dispute when


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                                        CS/HB 137, First Engrossed



  1  the settlement has been made in accordance with the order.

  2  The order authorizing the settlement may also determine

  3  whether an additional bond is required and, if so, shall fix

  4  the amount of it.

  5         (2)  In the same manner as provided in subsection (1)

  6  or as authorized by s. 744.301, the natural guardians or

  7  guardian of a minor may settle any claim by or on behalf of a

  8  minor that does not exceed $15,000 $5,000 without bond.  A

  9  legal guardianship shall be required when the amount of the

10  net settlement to the ward exceeds $15,000 $5,000.

11         (3)(a)  No settlement after an action has been

12  commenced by or on behalf of a ward shall be effective unless

13  approved by the court having jurisdiction of the action.

14         (b)  In the event of settlement or judgment in favor of

15  the ward or minor, the court may authorize the natural

16  guardians or guardian, or a guardian of the property appointed

17  by a court of competent jurisdiction, to collect the amount of

18  the settlement or judgment and to execute a release or

19  satisfaction.  When the amount of net settlement to the ward

20  or judgment exceeds $15,000 $5,000 and no guardian has been

21  appointed, the court shall require the appointment of a

22  guardian for the property.

23         (4)  In making a settlement under court order as

24  provided in this section, the guardian is authorized to

25  execute any instrument that may be necessary to effect the

26  settlement.  When executed, the instrument shall be a complete

27  release of the person making the settlement.

28         Section 11.  Subsections (2) and (4) of section

29  744.301, Florida Statutes, are amended to read:

30         744.301  Natural guardians.--

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                                        CS/HB 137, First Engrossed



  1         (2)  The natural guardian or guardians are authorized,

  2  on behalf of any of their minor children, to settle and

  3  consummate a settlement of any claim or cause of action

  4  accruing to any of their minor children for damages to the

  5  person or property of any of said minor children and to

  6  collect, receive, manage, and dispose of the proceeds of any

  7  such settlement and of any other real or personal property

  8  distributed from an estate or trust or proceeds from a life

  9  insurance policy to, or otherwise accruing to the benefit of,

10  the child during minority, when the amount involved in any

11  instance does not exceed $15,000 $5,000, without appointment,

12  authority, or bond.

13         (4)(a)  In any case where a minor has a claim for

14  personal injury, property damage, or wrongful death in which

15  the gross settlement for the claim of the minor equals or

16  exceeds $15,000 $10,000, the court may, prior to the approval

17  of the settlement of the minor's claim, appoint a guardian ad

18  litem to represent the minor's interests.  In any case in

19  which the gross settlement involving a minor equals or exceeds

20  $25,000, the court shall, prior to the approval of the

21  settlement of the minor's claim, appoint a guardian ad litem

22  to represent the minor's interests.  The appointment of the

23  guardian ad litem must be without the necessity of bond or a

24  notice.  The duty of the guardian ad litem is to protect the

25  minor's interests.  The procedure for carrying out that duty

26  is as prescribed in the Florida Probate Rules.  If a legal

27  guardian of the minor has previously been appointed and has no

28  potential adverse interest to the minor, the court may not

29  appoint a guardian ad litem to represent the minor's

30  interests, unless the court determines that the appointment is

31  otherwise necessary.


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                                        CS/HB 137, First Engrossed



  1         (b)  Unless waived, the court shall award reasonable

  2  fees and costs to the guardian ad litem to be paid out of the

  3  gross proceeds of the settlement.

  4         Section 12.  Subsection (4) is added to section

  5  765.104, Florida Statutes, to read:

  6         765.104  Amendment or revocation.--

  7         (4)  Any patient for whom a medical proxy has been

  8  recognized under s. 765.401 and for whom any previous legal

  9  disability that precluded the patient's ability to consent is

10  removed may amend or revoke the recognition of the medical

11  proxy and any uncompleted decision made by that proxy. The

12  amendment or revocation takes effect when it is communicated

13  to the proxy, the health care provider, or the health care

14  facility in writing or, if communicated orally, in the

15  presence of a third person.

16         Section 13.  Subsection (1) of section 765.401, Florida

17  Statutes, is amended to read:

18         765.401  The proxy.--

19         (1)  If an incapacitated or developmentally disabled

20  the patient has not executed an advance directive, or

21  designated a surrogate to execute an advance directive, or the

22  designated or alternate surrogate is no longer available to

23  make health care decisions, health care decisions may be made

24  for the patient by any of the following individuals, in the

25  following order of priority, if no individual in a prior class

26  is reasonably available, willing, or competent to act:

27         (a)  The judicially appointed guardian of the patient

28  or the guardian advocate of the person having a developmental

29  disability as defined in s. 393.063, who has been authorized

30  to consent to medical treatment, if such guardian has

31  previously been appointed; however, this paragraph shall not


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                                        CS/HB 137, First Engrossed



  1  be construed to require such appointment before a treatment

  2  decision can be made under this subsection;

  3         (b)  The patient's spouse;

  4         (c)  An adult child of the patient, or if the patient

  5  has more than one adult child, a majority of the adult

  6  children who are reasonably available for consultation;

  7         (d)  A parent of the patient;

  8         (e)  The adult sibling of the patient or, if the

  9  patient has more than one sibling, a majority of the adult

10  siblings who are reasonably available for consultation;.

11         (f)  An adult relative of the patient who has exhibited

12  special care and concern for the patient and who has

13  maintained regular contact with the patient and who is

14  familiar with the patient's activities, health, and religious

15  or moral beliefs; or

16         (g)  A close friend of the patient.

17         Section 14.  This act shall take effect upon becoming a

18  law.

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