CODING: Words stricken are deletions; words underlined are additions.



                                                  SENATE AMENDMENT

    Bill No. CS for SB 268

    Amendment No. ___   Barcode 843768

                            CHAMBER ACTION
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10  ______________________________________________________________

11  Senator Carlton moved the following amendment:

12

13         Senate Amendment (with title amendment) 

14         Delete everything after the enacting clause

15

16  and insert:

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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                                                  SENATE AMENDMENT

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  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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  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 or disabled person does

20  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 or disabled person.

23         (5)  In a civil action under this section in which an

24  elderly or disabled person is a party, the elderly or disabled

25  person may move the court to advance the trial on the docket.

26  The presiding judge, after consideration of the age and health

27  of the party, may advance the trial on the docket. The motion

28  may be filed and served with the civil complaint or at any

29  time thereafter.

30         Section 3.  Section 744.1083, Florida Statutes, is

31  created to read:

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                                                  SENATE AMENDMENT

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  1         744.1083  Professional guardian registration.--

  2         (1)  Effective January 1, 2003, 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 clerk of the court

  6  in each county to perform the administrative functions

  7  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  or social security 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 providing

28  guardian-delegated financial or personal guardianship services

29  for wards.

30         (e)  Documentation that the bonding and educational

31  requirements of s. 744.1085 have been met, and that background

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                                                  SENATE AMENDMENT

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  1  screening has been conducted pursuant to s. 744.3135.

  2         (4)  The Statewide Public Guardianship Office may adopt

  3  rules necessary to administer this section.

  4         (5)  A trust company, a state banking corporation or

  5  state savings association authorized and qualified to exercise

  6  fiduciary powers in this state, or a national banking

  7  association or federal savings and loan association authorized

  8  and qualified to exercise fiduciary powers in this state, may,

  9  but shall not be required to, register as a professional

10  guardian under this section. If a trust company, state banking

11  corporation, state savings association, national banking

12  association, or federal savings and loan association described

13  in this subsection elects to register as a professional

14  guardian under this subsection, the requirements of subsection

15  (3) shall not apply and the registration shall include only

16  the name, address, and employer identification number of the

17  registrant, the name and address of its registered agent, if

18  any, and the documentation described in paragraph (3)(e).

19         Section 4.  Subsection (4) of section 744.309, Florida

20  Statutes, is amended to read:

21         744.309  Who may be appointed guardian of a resident

22  ward.--

23         (4)  TRUST COMPANY, STATE BANK OR SAVINGS ASSOCIATION,

24  OR NATIONAL BANK OR FEDERAL SAVINGS AND LOAN ASSOCIATION.--A

25  trust company incorporated under the laws of this state, a

26  state banking corporation or state savings association

27  authorized and qualified to exercise fiduciary powers in this

28  state, or a national banking association or federal savings

29  and loan association authorized and qualified to exercise

30  fiduciary powers in this state may act as guardian of the

31  property of the ward.

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                                                  SENATE AMENDMENT

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  1         Section 5.  Section 744.3135, Florida Statutes, is

  2  amended to read:

  3         744.3135  Credit and criminal investigation.--The court

  4  may require a nonprofessional guardian and shall require a

  5  professional or public guardian, and all employees of a

  6  professional guardian who have a fiduciary responsibility to a

  7  ward, to submit, at their his or her own expense, to an

  8  investigation of the guardian's credit history and to undergo

  9  level 2 background screening as required under s. 435.04 an

10  investigatory check by the National Crime Information Center

11  and the Florida Crime Information Center systems by means of

12  fingerprint checks by the Department of Law Enforcement and

13  the Federal Bureau of Investigation. The clerk of the court

14  shall obtain fingerprint cards from the Federal Bureau of

15  Investigation and make them available to guardians. Any

16  guardian who is so required shall have his or her fingerprints

17  taken and forward the proper fingerprint card along with the

18  necessary fee to the Florida Department of Law Enforcement for

19  processing. The professional guardian shall pay to the clerk

20  of the court a fee of $5 for handling and processing

21  professional guardian files. The results of the fingerprint

22  checks shall be forwarded to the clerk of court who shall

23  maintain the results in a guardian file and shall make the

24  results available to the court. If credit or criminal

25  investigations are required, the court must consider the

26  results of the investigations in appointing a guardian.

27  Guardians and all employees of a professional guardian who

28  have a fiduciary responsibility to a ward, so appointed, must

29  resubmit, at their own expense, to an investigation of credit

30  history, and undergo level 1 background screening as required

31  under s. 435.03, every 2 years after the date of their

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  1  appointment. The court must consider the results of these

  2  investigations in reappointing a guardian. This section shall

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

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

  5  banking corporation or state savings association authorized

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

  7  national banking association or federal savings and loan

  8  association authorized and qualified to exercise fiduciary

  9  powers in this state.

10         Section 6.  Section 744.446, Florida Statutes, is

11  amended to read:

12         744.446  Conflicts of interest; prohibited activities;

13  court approval; breach of fiduciary duty.--

14         (1)  It is essential to the proper conduct and

15  management of a guardianship that the guardian be independent

16  and impartial.  The fiduciary relationship which exists

17  between the guardian and the ward may not be used for the

18  private gain of the guardian other than the remuneration for

19  fees and expenses provided by law.  The guardian may not incur

20  any obligation on behalf of the guardianship which conflicts

21  with the proper discharge of the guardian's duties.

22         (2)  Unless prior approval is obtained by court order,

23  or unless such relationship existed prior to appointment of

24  the guardian and is disclosed to the court in the petition for

25  appointment of guardian, a guardian may not:

26         (a)  Have any interest, financial or otherwise, direct

27  or indirect, in any business transaction or activity with the

28  guardianship;

29         (b)  Acquire an ownership, possessory, security, or

30  other pecuniary interest adverse to the ward;

31         (c)  Be designated as a beneficiary on any life

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  1  insurance policy, pension, or benefit plan of the ward unless

  2  such designation was validly made by the ward prior to

  3  adjudication of incapacity of the ward; and

  4         (d)  Directly or indirectly purchase, rent, lease, or

  5  sell any property or services from or to any business entity

  6  of which the guardian or the guardian's spouse or any of the

  7  guardian's lineal descendants, or collateral kindred, is an

  8  officer, partner, director, shareholder, or proprietor, or has

  9  any financial interest.

10         (3)  Any activity prohibited by this section is

11  voidable during the term of the guardianship or by the

12  personal representative of the ward's estate, and the guardian

13  is subject to removal and to imposition of personal liability

14  through a proceeding for surcharge, in addition to any other

15  remedies otherwise available.

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

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

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

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

20  744.534, Florida Statutes, is amended to read:

21         744.534  Disposition of unclaimed funds held by

22  guardian.--

23         (2)

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

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

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

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

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

29  after payment to the State Treasurer and deposit as provided

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

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

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

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

  3  the Department of Elderly Affairs Administrative Trust Fund to

  4  be used solely for the benefit of public guardianship as

  5  determined by the Statewide Public Guardianship Office

  6  established in part IX of this chapter.

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

  8  Statutes, is amended to read:

  9         744.703  Office of public guardian; appointment,

10  notification.--

11         (1)  The executive director of the Statewide Public

12  Guardianship Office, after consultation with the chief judge

13  and other circuit judges within the judicial circuit and with

14  appropriate advocacy groups and individuals and organizations

15  who are knowledgeable about the needs of incapacitated

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

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

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

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

20  guardian, who have been investigated and such qualifications

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

22  guardian must have knowledge of the legal process and

23  knowledge of social services available to meet the needs of

24  incapacitated persons. The public guardian shall maintain a

25  staff or contract with professionally qualified individuals to

26  carry out the guardianship functions, including an attorney

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

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

29  psychologist, registered nurse, or nurse practitioner. A

30  public guardian that is a nonprofit corporate guardian under

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

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  1  States Internal Revenue Service. A nonprofit corporation under

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

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

  4  United States Internal Revenue Service; and

  5         (b)  It maintains a staff of professionally qualified

  6  individuals to carry out the guardianship functions, including

  7  a staff attorney who has experience in probate areas and

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

  9  gerontologist, psychologist, registered nurse, or nurse

10  practitioner.

11         Section 9.  Section 744.7082, Florida Statutes, is

12  created to read:

13         744.7082  Direct-support organization.--

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

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

16  under chapter 617 and organized and operated to conduct

17  programs and activities; initiate developmental projects;

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

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

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

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

22  the direct or indirect benefit of the Statewide Public

23  Guardianship Office or individual offices of public guardians.

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

25  organization must be consistent with the priority issues and

26  objectives of the Statewide Public Guardianship Office and

27  must be in the best interest of the state.

28         (3)  The Statewide Public Guardianship Office may

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

30  facilities of the state by the direct-support organization

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

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  1  directly in keeping with the approved purpose of the

  2  direct-support organization.

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

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

  5         Section 10.  Section 744.387, Florida Statutes, is

  6  amended to read:

  7         744.387  Settlement of claims.--

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

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

10  otherwise, and whether arising before or after appointment of

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

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

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

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

15  may enter an order authorizing the settlement if satisfied

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

17  The order shall relieve the guardian from any further

18  responsibility in connection with the claim or dispute when

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

20  The order authorizing the settlement may also determine

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

22  the amount of it.

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

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

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

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

27  legal guardianship shall be required when the amount of the

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

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

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

31  approved by the court having jurisdiction of the action.

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

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

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

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

  5  the settlement or judgment and to execute a release or

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

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

  8  appointed, the court shall require the appointment of a

  9  guardian for the property.

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

11  provided in this section, the guardian is authorized to

12  execute any instrument that may be necessary to effect the

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

14  release of the person making the settlement.

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

16  744.301, Florida Statutes, are amended to read:

17         744.301  Natural guardians.--

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

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

20  consummate a settlement of any claim or cause of action

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

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

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

24  such settlement and of any other real or personal property

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

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

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

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

29  authority, or bond.

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

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

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

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

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

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

  5  which the gross settlement involving a minor equals or exceeds

  6  $25,000, the court shall, prior to the approval of the

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

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

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

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

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

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

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

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

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

16  interests, unless the court determines that the appointment is

17  otherwise necessary.

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

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

20  gross proceeds of the settlement.

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

22  765.104, Florida Statutes, to read:

23         765.104  Amendment or revocation.--

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

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

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

27  removed may amend or revoke the recognition of the medical

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

29  amendment or revocation takes effect when it is communicated

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

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

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  1  presence of a third person.

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

  3  Statutes, is amended to read:

  4         765.401  The proxy.--

  5         (1)  If an incapacitated or developmentally disabled

  6  the patient has not executed an advance directive, or

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

  8  designated or alternate surrogate is no longer available to

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

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

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

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

13         (a)  The judicially appointed guardian of the patient

14  or the guardian advocate of the person having a developmental

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

16  to consent to medical treatment, if such guardian has

17  previously been appointed; however, this paragraph shall not

18  be construed to require such appointment before a treatment

19  decision can be made under this subsection;

20         (b)  The patient's spouse;

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

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

23  children who are reasonably available for consultation;

24         (d)  A parent of the patient;

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

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

27  siblings who are reasonably available for consultation;.

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

29  special care and concern for the patient and who has

30  maintained regular contact with the patient and who is

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

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  1  or moral beliefs; or

  2         (g)  A close friend of the patient.

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

  4  law.

  5

  6

  7  ================ T I T L E   A M E N D M E N T ===============

  8  And the title is amended as follows:

  9         Delete everything before the enacting clause

10

11  and insert:

12                      A bill to be entitled

13         An act relating to persons in a position of

14         trust and confidence; amending s. 825.101,

15         F.S.; defining the term "position of trust and

16         confidence"; amending s. 772.11, F.S.;

17         prescribing civil remedies for theft and other

18         offenses in which the victim is an elderly or

19         disabled person; providing that a violation of

20         patient rights is not a cause of action under

21         the act; providing for continuation of a cause

22         of action upon the death of the elderly or

23         disabled person; authorizing the court to

24         advance a trial on the docket which involves a

25         victim who is an elderly or disabled person;

26         creating s. 744.1083, F.S.; providing

27         guidelines for the registration of professional

28         guardians; authorizing rulemaking; authorizing

29         certain financial institutions to register;

30         amending s. 744.309, F.S.; revising

31         qualifications for trust companies that may be

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  1         appointed guardians; amending s. 744.3135,

  2         F.S.; revising credit and background screening

  3         requirements for guardians; providing such

  4         requirements for employees of a professional

  5         guardian who have a fiduciary responsibility to

  6         the ward; providing applicability; amending s.

  7         744.446, F.S.; providing for court actions to

  8         protect the ward in the event of a breach of

  9         fiduciary duty by the guardian; amending s.

10         744.534, F.S.; revising provisions relating to

11         disposition of unclaimed funds; amending s.

12         744.703, F.S.; authorizing the establishment of

13         public guardian offices; providing for the

14         staffing of offices; creating s. 744.7082,

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

16         organization"; providing for the purposes of a

17         direct-support organization; amending s.

18         744.387, F.S.; increasing the amount of a claim

19         that may be settled by a natural guardian of a

20         minor without the necessity of appointment of a

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

22         increasing the amount of a claim that may be

23         settled by a natural guardian of a minor

24         without the necessity of appointment of a

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

26         authorizing a patient whose legal disability is

27         removed to amend or revoke the recognition of a

28         medical proxy and any uncompleted decision made

29         by that proxy; specifying when the amendment or

30         revocation takes effect; amending s. 765.401,

31         F.S.; clarifying provisions relating to medical

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 268

    Amendment No. ___   Barcode 843768





  1         proxies for incapacitated persons; providing

  2         priority of a guardian advocate who has been

  3         authorized to consent to medical treatment for

  4         a person with a developmental disability;

  5         providing an effective date.

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