Senate Bill sb1782c2

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2003                    CS for CS for SB 1782

    By the Committees on Finance and Taxation; Judiciary; and
    Senator Saunders




    314-2528-03

  1                      A bill to be entitled

  2         An act relating to guardianship; amending s.

  3         744.102, F.S.; redefining the term

  4         "professional guardian"; amending s. 744.1083,

  5         F.S.; revising procedures for registration of

  6         professional and public guardians; providing

  7         for the Department of Elderly Affairs to

  8         contract with a not-for-profit entity;

  9         providing for prerequisites; providing for a

10         form; providing fees; requiring information to

11         be provided to the courts; providing for

12         voluntary registration as a public guardian of

13         a state college or university or independent

14         college or university; providing required

15         registration information; amending s. 744.1085,

16         F.S.; revising provisions relating to the

17         regulation of professional and public

18         guardians; providing for credit checks and

19         background screenings; providing for an

20         examination; providing for waiver of

21         examination; prohibiting the appointment, after

22         a specified date, of professional and public

23         guardians who have not met these requirements;

24         amending s. 744.3135, F.S., relating to credit

25         and criminal investigations; deleting

26         applicability to certain employees; allowing a

27         court to require nonprofessional guardians to

28         undergo credit checks and background screening;

29         amending s. 744.444, F.S.; allowing plenary or

30         limited guardians to employ case managers;

31         permitting reasonable reimbursement of

                                  1

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






    Florida Senate - 2003                    CS for CS for SB 1782
    314-2528-03




 1         compensation and fees for persons employed by

 2         the guardian for services provided to the

 3         guardianship estate; allowing plenary or

 4         limited guardians to provide certain

 5         confidential information to ombudsman council

 6         members; requiring that confidentiality be

 7         maintained; amending s. 744.534, F.S.;

 8         providing for the Secretary of Elderly Affairs

 9         to determine the use of certain unclaimed funds

10         held by a guardian; amending s. 744.7021, F.S.;

11         revising the organization of the Statewide

12         Public Guardianship Office within the

13         Department of Elderly Affairs; providing that

14         the Secretary of Elderly Affairs shall appoint

15         or contract with the head of the office to be

16         executive director; providing for rulemaking by

17         the department; amending s. 744.704, F.S.;

18         revising the powers and duties of public

19         guardians; prescribing who may be served by

20         public guardians; amending s. 744.705, F.S.;

21         repealing a provision for paying the costs of a

22         public guardian from the budget of the office

23         of public guardian; creating the Guardianship

24         Task Force within the department; providing

25         purpose; providing for staff, a chairperson,

26         and membership of the task force; providing for

27         organizations that appoint members to pay their

28         expenses; providing duties of the task force;

29         requiring a preliminary and a final report to

30         the Governor and the Legislature; allowing the

31         appointment of auxiliary members; providing a

                                  2

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






    Florida Senate - 2003                    CS for CS for SB 1782
    314-2528-03




 1         term of service; amending s. 744.108, F.S.;

 2         providing that costs and attorney's fees

 3         incurred as part of the guardianship

 4         administration shall be determined by the

 5         court; amending s. 744.3145, F.S.; reducing the

 6         educational requirements for a person serving

 7         as a guardian for the person's minor child;

 8         providing an effective date.

 9  

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

11  

12         Section 1.  Subsection (15) of section 744.102, Florida

13  Statutes, is amended to read:

14         744.102  Definitions.--As used in this chapter, the

15  term:

16         (15)  "Professional guardian" means any guardian who

17  receives or has at any time received compensation for services

18  rendered to more than two wards as their guardian. A

19  professional guardian may serve as a public guardian pursuant

20  to part IX of this chapter. A person serving as a guardian for

21  two or more relatives as defined in s. 744.309(2) is not

22  considered a professional guardian.

23         Section 2.  Section 744.1083, Florida Statutes, is

24  amended to read:

25         744.1083  Professional guardian Registration of

26  professional and public guardians.--

27         (1)  Effective January 1, 2004 2003, a professional

28  guardian and a public guardian must register biennially with

29  the Statewide Public Guardianship Office as established in

30  part IX of this chapter. The Statewide Public Guardianship

31  Office may contract with the clerk of the court in each county

                                  3

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






    Florida Senate - 2003                    CS for CS for SB 1782
    314-2528-03




 1  to perform the administrative functions associated with

 2  registering professional guardians.

 3         (2)  The Department of Elderly Affairs shall contract

 4  with the Florida Guardianship Foundation or another

 5  not-for-profit entity to perform other functions associated

 6  with the registration, examination, and training of

 7  professional and public guardians.

 8         (3)  Guardian registration must include information

 9  sufficient to:

10         (a)  Identify accurately the guardian;

11         (b)  Distinguish a guardian providing guardianship

12  services as a public guardian or a professional guardian

13  either, individually or through a partnership, a corporation,

14  or any other business organization; and

15         (c)  Demonstrate compliance with the bonding,

16  educational, testing, credit history, and background screening

17  requirements of ss. 744.1085 and 744.3135.

18  

19  Compliance with this subsection constitutes compliance with

20  the attestation requirements of s. 435.04(5).

21         (4)  The department may authorize the collection of a

22  registration fee to cover the actual cost of guardian

23  registration. Such fee shall be determined by rule but may not

24  exceed $100.

25         (5)  Any not-for-profit entity with whom the department

26  has contracted under subsection (2) shall, in accordance with

27  procedures prescribed by the department, provide to the clerk

28  of court and the chief judge of each judicial circuit

29  information relating to guardian registration.

30         (2)  Annual registration shall be made on forms

31  furnished by the Statewide Public Guardianship Office and

                                  4

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






    Florida Senate - 2003                    CS for CS for SB 1782
    314-2528-03




 1  accompanied by the applicable registration fee as determined

 2  by rule. Such fee shall not exceed $25.

 3         (3)  Registration must include the following:

 4         (a)  If the professional guardian is a natural person,

 5  the name, address, date of birth, and employer identification

 6  or social security number of the professional guardian.

 7         (b)  If the professional guardian is a partnership or

 8  association, the name, address, and date of birth of every

 9  member, and the employer identification number of the

10  partnership or association.

11         (c)  If the professional guardian is a corporation, the

12  name, address, and employer identification number of the

13  corporation; the name, address, and date of birth of each of

14  its directors and officers; the name of its resident agent;

15  and the name, address, and date of birth of each person having

16  at least a 10-percent interest in the corporation.

17         (d)  The name, address, date of birth, and employer

18  identification number, if applicable, of each person providing

19  guardian-delegated financial or personal guardianship services

20  for wards.

21         (e)  Documentation that the bonding and educational

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

23  screening has been conducted pursuant to s. 744.3135.

24         (6)(4)  The Statewide Public Guardianship Office shall

25  may adopt rules, forms, and procedures necessary to administer

26  this section.

27         (7)(5)  A trust company, a state banking corporation or

28  state savings association authorized and qualified to exercise

29  fiduciary powers in this state, or a national banking

30  association or federal savings and loan association authorized

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

                                  5

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






    Florida Senate - 2003                    CS for CS for SB 1782
    314-2528-03




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

 2  guardian under this section and may serve as a professional

 3  guardian without registration with all of the rights and

 4  privileges of a person registered under this chapter. If a

 5  trust company, state banking corporation, state savings

 6  association, national banking association, or federal savings

 7  and loan association described in this subsection elects to

 8  register as a professional guardian under this subsection, the

 9  requirements of subsection (3) shall not apply and the

10  registration shall include only the name, address, and

11  employer identification number of the registrant, the name and

12  address of its registered agent, if any, and the documentation

13  described in paragraph (3)(e).

14         (8)  A state college or university or an independent

15  college or university as described pursuant to s.

16  1009.98(3)(a) may, but shall not be required to, register as a

17  public guardian under this section. If a state college or

18  university or independent college or university elects to

19  register as a public guardian under this subsection, the

20  requirements of subsection (3) shall not apply and the

21  registration shall include only the name, address, and

22  employer identification number of the registrant.

23         Section 3.  Section 744.1085, Florida Statutes, is

24  amended to read:

25         744.1085  Regulation of professional and public

26  guardians; application; bond required; educational

27  requirements.--

28         (1)  The provisions of this section are in addition to

29  and supplemental to any other provision of the Florida

30  Guardianship Law, except s. 744.3145.

31  

                                  6

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






    Florida Senate - 2003                    CS for CS for SB 1782
    314-2528-03




 1         (2)  Each professional or public guardian who files a

 2  petition for appointment after October 1, 1997, shall post a

 3  blanket fiduciary bond with the clerk of the circuit court in

 4  the county in which the guardian's primary place of business

 5  is located.  The guardian shall provide proof of the fiduciary

 6  bond to the clerks of each additional circuit court in which

 7  he or she is serving as a professional guardian. The bond

 8  shall be maintained by the guardian in an amount not less than

 9  $50,000.  The bond must cover all wards for whom the guardian

10  has been appointed at any given time.  The liability of the

11  provider of the bond is limited to the face amount of the

12  bond, regardless of the number of wards for whom the

13  professional guardian has been appointed. The act or omissions

14  of each employee of a professional guardian who has direct

15  contact with the ward or access to the ward's assets is

16  covered by the terms of such bond.  The bond must be payable

17  to the Governor of the State of Florida and his or her

18  successors in office and conditioned on the faithful

19  performance of all duties by the guardian.  In form, the bond

20  must be joint and several.  The bond is in addition to any

21  bonds required under s. 744.351. This subsection does not

22  apply to any attorney who is licensed to practice law in this

23  state and who is in good standing, to any financial

24  institution as defined in s. 744.309(4), or a public guardian.

25  The expenses incurred to satisfy the bonding requirements

26  prescribed in this section may not be paid with the assets of

27  any ward.

28         (3)  Each professional guardian defined in s.

29  744.102(15) and public guardian, on October 1, 1997, must

30  receive a minimum of 40 hours of instruction and training by

31  October 1, 1998, or within 1 year after becoming a

                                  7

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






    Florida Senate - 2003                    CS for CS for SB 1782
    314-2528-03




 1  professional guardian, whichever occurs later.  Each

 2  professional guardian must receive a minimum of 16 hours of

 3  continuing education every 2 calendar years after the year in

 4  which the initial 40-hour educational requirement is met.  The

 5  instruction and education must be completed through a course

 6  approved or offered by the Statewide Public Guardianship

 7  Office. The expenses incurred to satisfy the educational

 8  requirements prescribed in this section may not be paid with

 9  the assets of any ward. This subsection does not apply to any

10  attorney who is licensed to practice law in this state.

11         (4)  Each professional guardian or public guardian must

12  allow, at the guardian's expense, an investigation of the

13  guardian's credit history, conducted in a manner prescribed by

14  the Department of Elderly Affairs.

15         (5)  As required in s. 744.3135, each professional or

16  public guardian must allow a level 2 background screening of

17  the guardian in accordance with s. 435.04.

18         (6)  After July 1, 2005, each professional or public

19  guardian shall demonstrate her or his competency to act as a

20  professional guardian or public guardian by taking an

21  examination developed or approved by the entity provided in s.

22  744.1083(2) and adopted by the Department of Elderly Affairs.

23  The department shall determine the procedure for administering

24  the examination and shall charge an examination fee in the

25  amount of the actual cost of developing and administering the

26  examination, not to exceed $500. The department, in

27  consultation with the entity provided in s. 744.1083(2), may

28  recognize the passing of a national guardianship examination

29  in lieu of passing all or part of the state examination,

30  except that each professional or public guardian must take and

31  

                                  8

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






    Florida Senate - 2003                    CS for CS for SB 1782
    314-2528-03




 1  pass an approved examination section relating to Florida laws

 2  and procedures.

 3         (7)  The Department of Elderly Affairs, in consultation

 4  with the entity provided in s. 744.1083(2), shall set the

 5  minimum score necessary to demonstrate competency to become a

 6  professional or public guardian.

 7         (8)  The department shall waive the examination

 8  requirement set under subsection (6) if a professional or

 9  public guardian provides:

10         (a)  Proof that the guardian has actively acted as a

11  professional or public guardian for 5 years or more; and

12         (b)  A letter from the chief judge of a judicial

13  circuit before whom the professional or public guardian

14  practiced at least 1 year which states that the professional

15  guardian has demonstrated to the court her or his competency

16  as a professional or public guardian.

17         (9)  Beginning July 1, 2004, the court may not appoint

18  as a professional or public guardian any person who has not

19  met the requirements of this section and s. 744.1083.

20         (10)  This section does not apply to a professional

21  guardian or the employees of a professional guardian, that is

22  a trust company, a state banking corporation, state savings

23  association authorized and qualified to exercise fiduciary

24  powers in this state, or a national banking association or

25  federal savings and loan association authorized and qualified

26  to exercise fiduciary powers in this state.

27         Section 4.  Section 744.3135, Florida Statutes, is

28  amended to read:

29         744.3135  Credit and criminal investigation.--The court

30  may require a nonprofessional guardian and shall require a

31  professional or public guardian, and all employees of a

                                  9

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






    Florida Senate - 2003                    CS for CS for SB 1782
    314-2528-03




 1  professional guardian who have a fiduciary responsibility to a

 2  ward, to submit, at their own expense, to an investigation of

 3  the guardian's credit history and to undergo level 2

 4  background screening as required under s. 435.04. The clerk of

 5  the court shall obtain fingerprint cards from the Federal

 6  Bureau of Investigation and make them available to guardians.

 7  Any guardian who is so required shall have his or her

 8  fingerprints taken and forward the proper fingerprint card

 9  along with the necessary fee to the Florida Department of Law

10  Enforcement for processing. The professional guardian shall

11  pay to the clerk of the court a fee of $5 for handling and

12  processing professional guardian files. The results of the

13  fingerprint checks shall be forwarded to the clerk of court

14  who shall maintain the results in a guardian file and shall

15  make the results available to the court. If credit or criminal

16  investigations are required, the court must consider the

17  results of the investigations in appointing a guardian.

18  Professional and public guardians and all employees of a

19  professional guardian who have a fiduciary responsibility to a

20  ward, so appointed, must resubmit, at their own expense, to an

21  investigation of credit history, and undergo level 1

22  background screening as required under s. 435.03, at least

23  every 2 years after the date of their appointment. At any

24  time, the court may require a guardian to submit to an

25  investigation of his or her credit history and undergo level 1

26  background screening as required under s. 435.03. The court

27  must consider the results of these investigations in

28  reappointing a guardian. This section shall not apply to a

29  professional guardian, or to the employees of a professional

30  guardian, that is a trust company, a state banking corporation

31  or state savings association authorized and qualified to

                                  10

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






    Florida Senate - 2003                    CS for CS for SB 1782
    314-2528-03




 1  exercise fiduciary powers in this state, or a national banking

 2  association or federal savings and loan association authorized

 3  and qualified to exercise fiduciary powers in this state.

 4         Section 5.  Subsection (13) of section 744.444, Florida

 5  Statutes, is amended, and subsections (16) and (17) are added

 6  to that section, to read:

 7         744.444  Power of guardian without court

 8  approval.--Without obtaining court approval, a plenary

 9  guardian of the property, or a limited guardian of the

10  property within the powers granted by the order appointing the

11  guardian or an approved annual or amended guardianship report,

12  may:

13         (13)  When reasonably necessary, employ persons,

14  including attorneys, auditors, investment advisers, case

15  managers, or agents, even if they are associated with the

16  guardian, to advise or assist the guardian in the performance

17  of his or her duties.

18         (16)  Pay or reimburse costs incurred and reasonable

19  fees or compensation to persons, including attorneys, employed

20  by the guardian pursuant to subsection (13) from the assets of

21  the guardianship estate, subject to obtaining court approval

22  of the annual accounting.

23         (17)  Provide confidential information of a ward which

24  is related to an investigation arising under part I of chapter

25  400 to a local or state ombudsman council member who is

26  conducting the investigation. Such information must be

27  provided within 7 days after the initial written request. Any

28  such ombudsman must maintain the confidentiality of such

29  information.

30         Section 6.  Paragraph (c) of subsection (2) of section

31  744.534, Florida Statutes, is amended to read:

                                  11

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






    Florida Senate - 2003                    CS for CS for SB 1782
    314-2528-03




 1         744.534  Disposition of unclaimed funds held by

 2  guardian.--

 3         (2)

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

 5  State Treasurer, on written petition to the court that

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

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

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

 9  after payment to the State Treasurer and deposit as provided

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

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

12  the State Treasurer and not claimed within 5 years from the

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

14  the Department of Elderly Affairs Administrative Trust Fund to

15  be used solely for the benefit of public guardianship as

16  determined by the Secretary of Elderly Affairs Statewide

17  Public Guardianship Office established in part IX of this

18  chapter.

19         Section 7.  Section 744.7021, Florida Statutes, is

20  amended to read:

21         744.7021  Statewide Public Guardianship Office.--There

22  is hereby created the Statewide Public Guardianship Office

23  within the Department of Elderly Affairs. The Department of

24  Elderly Affairs shall provide administrative support and

25  service to the office to the extent requested by the executive

26  director within the available resources of the department. The

27  Statewide Public Guardianship Office may request the

28  assistance of the Inspector General of the Department of

29  Elderly Affairs in providing auditing services, and the Office

30  of General Counsel of the department may provide assistance in

31  rulemaking and other matters as needed to assist the Statewide

                                  12

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






    Florida Senate - 2003                    CS for CS for SB 1782
    314-2528-03




 1  Public Guardianship Office. The Statewide Public Guardianship

 2  Office shall not be subject to control, supervision, or

 3  direction by the Department of Elderly Affairs in the

 4  performance of its duties.

 5         (1)  The Secretary of Elderly Affairs shall appoint or

 6  contract with the executive director of the office, who shall

 7  be the head of the Statewide Public Guardianship Office is the

 8  executive director, who shall be appointed by the Governor.

 9  The executive director must be a member of The Florida Bar in

10  good standing licensed attorney with a background in

11  guardianship law and knowledge of social services available to

12  meet the needs of incapacitated persons, shall serve on a

13  full-time basis, and shall personally, or through

14  representatives of the office, carry out the purposes and

15  functions of the Statewide Public Guardianship Office in

16  accordance with state and federal law. The executive director

17  shall serve at the pleasure of and report to the secretary

18  Governor.

19         (2)  The executive director Statewide Public

20  Guardianship Office shall, directly or through contract with

21  the Department of Elderly Affairs, and within available

22  resources, have oversight responsibilities for all public and

23  professional guardians.

24         (a)  The executive director office shall review the

25  current public guardian programs in Florida and other states.

26         (b)  The executive director office, in consultation

27  with local guardianship offices, shall develop statewide

28  performance measures and standards.

29         (c)  The executive director office shall review the

30  various methods of funding guardianship programs, the kinds of

31  services being provided by such programs, and the demographics

                                  13

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






    Florida Senate - 2003                    CS for CS for SB 1782
    314-2528-03




 1  of the wards. In addition, the executive director office shall

 2  review and make recommendations regarding the feasibility of

 3  recovering a portion or all of the costs of providing public

 4  guardianship services from the assets or income of the wards.

 5         (d)  No later than October 1, 2000, the office shall

 6  submit to the Governor, the President of the Senate, the

 7  Speaker of the House of Representatives, and the Chief Justice

 8  of the Supreme Court an interim report describing the progress

 9  of the office in meeting the goals as described in this

10  section. No later than October 1, 2001, the office shall

11  submit to the Governor, the President of the Senate, the

12  Speaker of the House of Representatives, and the Chief Justice

13  of the Supreme Court a proposed public guardianship plan

14  including alternatives for meeting the state's guardianship

15  needs. This plan may include recommendations for less than the

16  entire state, may include a phase-in system, and shall include

17  estimates of the cost of each of the alternatives. Each year

18  thereafter, the executive director office shall provide a

19  status report and provide to the secretary further

20  recommendations that to address the need for public

21  guardianship services and related issues.

22         (e)  The executive director office may provide

23  assistance to local governments or entities in pursuing grant

24  opportunities. The executive director office shall review and

25  make recommendations in the annual report on the availability

26  and efficacy of seeking Medicaid matching funds. The executive

27  director office shall diligently seek ways to use existing

28  programs and services to meet the needs of public wards.

29         (f)  The executive director, in consultation with the

30  entity provided in s. 744.1083 office shall develop a

31  guardianship training program curriculum that. The training

                                  14

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






    Florida Senate - 2003                    CS for CS for SB 1782
    314-2528-03




 1  program may be offered to all guardians whether public or

 2  private. The office shall establish a curriculum committee to

 3  develop the training program specified in this part. The

 4  curriculum committee shall include, but not be limited to,

 5  probate judges. A fee may be charged to private guardians in

 6  order to defray the cost of providing the training. In

 7  addition, a fee may be charged to any training provider for up

 8  to the actual cost of the review and approval of their

 9  curriculum. Any fees collected pursuant to this paragraph

10  shall be deposited in the Department of Elderly Affairs

11  Administrative Trust Fund to be used for the guardianship

12  training program.

13         (3)  The executive director office may conduct or

14  contract for demonstration projects authorized by the

15  Department of Elderly Affairs, within funds appropriated or

16  through gifts, grants, or contributions for such purposes, to

17  determine the feasibility or desirability of new concepts of

18  organization, administration, financing, or service delivery

19  designed to preserve the civil and constitutional rights of

20  persons of marginal or diminished capacity. Any gifts, grants,

21  or contributions for such purposes shall be deposited in the

22  Department of Elderly Affairs Administrative Trust Fund.

23         (4)  The Department of Elderly Affairs office has

24  authority to adopt rules pursuant to ss. 120.536(1) and 120.54

25  to carry out the provisions of this section.

26         Section 8.  Subsections (1), (2), and (3) of section

27  744.704, Florida Statutes, are amended to read:

28         744.704  Powers and duties.--

29         (1)  A public guardian may serve as a guardian of a

30  person adjudicated incapacitated under this chapter. : 

31  

                                  15

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






    Florida Senate - 2003                    CS for CS for SB 1782
    314-2528-03




 1         (a)  If there is no family member or friend, other

 2  person, bank, or corporation willing and qualified to serve as

 3  guardian; and 

 4         (b)  If the assets of the ward do not exceed the asset

 5  level for Medicaid eligibility, exclusive of homestead and

 6  exempt property as defined in s. 4, Art. X of the State

 7  Constitution, and the ward's income, from all sources, is less

 8  than $4,000 per year. Income from public welfare programs,

 9  supplemental security income, optional state supplement, a

10  disability pension, or a social security pension shall be

11  excluded in such computation.  However, a ward whose total

12  income, counting excludable income, exceeds $30,000 a year may

13  not be served.

14         (2)  The public guardian shall be vested with all the

15  powers and duties of a guardian under this chapter, except as

16  otherwise provided by law.

17         (3)  The public guardian shall primarily serve

18  incapacitated persons who are of limited financial means, as

19  defined by contract or rule of the Department of Elderly

20  Affairs. The public guardian may serve incapacitated persons

21  of greater financial means to the extent that the Department

22  of Elderly Affairs determines to be appropriate. If the public

23  guardian finds that the assets or the income of the ward

24  exceeds the amounts set forth in paragraph (1)(b), the public

25  guardian shall submit a resignation and petition the court for

26  appointment of a successor guardian.  The public guardian

27  shall not be dismissed until such time that a private guardian

28  is appointed.  If a qualified successor guardian is not

29  available, the public guardian may remain as guardian,

30  provided the guardian makes reasonable efforts to find a

31  

                                  16

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






    Florida Senate - 2003                    CS for CS for SB 1782
    314-2528-03




 1  successor and reports to the court every 6 months on efforts

 2  to obtain a successor.

 3         Section 9.  Section 744.705, Florida Statutes, is

 4  amended to read:

 5         744.705  Costs of public guardian.--

 6         (1)  All costs of administration, including filing

 7  fees, shall be paid from the budget of the office of public

 8  guardian.  No costs of administration, including filing fees,

 9  shall be recovered from the assets or the income of the ward.

10         (2)  In any proceeding for appointment of a public

11  guardian, or in any proceeding involving the estate of a ward

12  for whom a public guardian has been appointed guardian, the

13  court may waive any court costs or filing fees.

14         Section 10.  Guardianship Task Force; creation;

15  membership, duties.--

16         (1)  There is created within the Department of Elderly

17  Affairs a Guardianship Task Force. The purpose of the task

18  force is to examine guardianship and incapacity and make

19  recommendations to the Governor and the Legislature for the

20  improvement of guardianship and incapacity practice. The

21  department shall staff the task force. The Secretary of

22  Elderly Affairs shall appoint the chair of the task force.

23  Members of the task force shall serve without compensation.

24  Unless specified otherwise, task force members shall be

25  appointed by the respective organizations that they represent.

26         (2)  Members shall serve without compensation. Any

27  member of the committee who is a public employee is entitled

28  to reimbursement for per diem and travel expenses by his or

29  her employer, and the cost of each member's participation must

30  be borne by the organization that appointed the member.

31  

                                  17

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






    Florida Senate - 2003                    CS for CS for SB 1782
    314-2528-03




 1         (3)  The Guardianship Task Force shall identify the

 2  characteristics of Florida guardianship practice. It shall

 3  also identify guardianship best practices and recommend

 4  specific statutory and other changes for achieving such best

 5  practices and for achieving citizen access to quality

 6  guardianship services. The task force shall submit a

 7  preliminary report to the Governor, the Secretary of Elderly

 8  Affairs and the Legislature no later than January 1, 2004, and

 9  shall submit a final report no later than January 1, 2005.

10         (4)  The Guardianship Task Force shall consist of 10

11  members as follows: a judge who has experience sitting in

12  guardianship proceedings appointed by the Florida Conference

13  of Circuit Judges, a representative of the Association of

14  Clerks of Court, a professor of law who has experience in

15  elder issues appointed by the Secretary of Elderly Affairs, a

16  representative of the Florida State Guardianship Association,

17  a representative of the Florida Guardianship Foundation, a

18  representative of the Real Property and Probate Section of The

19  Florida Bar, a representative of the Elder Law Section of The

20  Florida Bar, a professional who has experience in examining

21  and determining incapacity, a representative of the Florida

22  Bankers' Association and a citizen/consumer appointed by the

23  Florida AARP (American Association of Retired Persons).

24         (5)  The Guardianship Task Force may appoint auxiliary

25  members based on their expertise to assist the task force in

26  carrying out its duties.

27         (6)  The task force is terminated May 6, 2005.

28         Section 11.  Subsection (8) is added to section

29  744.108, Florida Statutes, to read:

30         744.108  Guardian's and attorney's fees and expenses.--

31  

                                  18

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






    Florida Senate - 2003                    CS for CS for SB 1782
    314-2528-03




 1         (8)  When court proceedings are instituted to review or

 2  determine a guardian's or an attorney's fees under subsection

 3  (2), such proceedings are part of the guardianship

 4  administration process and the costs, including fees for the

 5  guardian's attorney, shall be determined by the court and paid

 6  from the assets of the guardianship estate unless the court

 7  finds the requested compensation under subsection (2) to be

 8  substantially unreasonable.

 9         Section 12.  Section 744.3145, Florida Statutes, is

10  amended to read:

11         744.3145  Guardian education requirements.--

12         (1)  Each ward is entitled to a guardian competent to

13  perform the duties of a guardian necessary to protect the

14  interests of the ward.

15         (2)  Each person appointed by the court to be a

16  guardian, other than a parent who is the guardian of the

17  property of a minor child, must receive a minimum of 8 hours

18  of instruction and training which covers:

19         (a)  The legal duties and responsibilities of the

20  guardian;

21         (b)  The rights of the ward;

22         (c)  The availability of local resources to aid the

23  ward; and

24         (d)  The preparation of habilitation plans and annual

25  guardianship reports, including financial accounting for the

26  ward's property.

27         (3)  Each person appointed by the court to be the

28  guardian of the property of his or her minor child must

29  receive a minimum of 4 hours of instruction and training that

30  covers:

31  

                                  19

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






    Florida Senate - 2003                    CS for CS for SB 1782
    314-2528-03




 1         (a)  The legal duties and responsibilities of the

 2  guardian of the property;

 3         (b)  The preparation of the initial inventory and

 4  annual guardianship accountings for the ward's property; and

 5         (c)  Use of guardianship assets.

 6         (4)(3)  Each person appointed by the court to be a

 7  guardian must complete the required number of 8 hours of

 8  instruction and education within 1 year after his or her

 9  appointment as guardian.  The instruction and education must

10  be completed through a course approved by the chief judge of

11  the circuit court and taught by a court-approved organization.

12  Court-approved organizations may include, but are not limited

13  to, community or junior colleges, guardianship organizations,

14  and the local bar association or The Florida Bar.

15         (5)(4)  Expenses incurred by the guardian to satisfy

16  the education requirement may be paid from the ward's estate,

17  unless the court directs that such expenses be paid by the

18  guardian individually.

19         (6)(5)  The court may, in its discretion, waive some or

20  all of the requirements of this section or impose additional

21  requirements.  The court shall make its decision on a

22  case-by-case basis and, in making its decision, shall consider

23  the experience and education of the guardian, the duties

24  assigned to the guardian, and the needs of the ward.

25         (7)(6)  The provisions of this section do not apply to

26  professional guardians.

27         Section 13.  This act shall take effect July 1, 2003.

28  

29  

30  

31  

                                  20

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






    Florida Senate - 2003                    CS for CS for SB 1782
    314-2528-03




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                            CS/SB 1782

 3                                 

 4  The committee substitute requires the Department of Elderly
    Affairs to contract with the Florida Guardianship Foundation
 5  or another not-for-profit entity to perform functions
    associated with the registration, examination and training of
 6  professional guardians.

 7  The committee substitute provides that when court proceedings
    are instituted to review or determine a guardian's or an
 8  attorney's fees, such proceedings are part of the guardianship
    administration process and the costs, including fees for the
 9  guardian's attorney, shall be determined by the court and paid
    from the assets of the guardianship estate, unless the court
10  finds the requested compensation unreasonable.

11  The committee substitute reduces the educational requirements
    for a person serving as a guardian for his or her own minor
12  child from 8 hours to 4 hours.

13  The committee substitute provides that a financial institution
    may register as a professional guardian, but does not have to
14  in order to serve as a professional guardian with all of the
    rights and privileges of a registered guardian.
15  
    The committee substitute provides that a state college or
16  university or an independent college or university as
    described pursuant to s. 1009.98(3)(a), F.S., may, but shall
17  not be required to, register as a public guardian.

18  The committee substitute requires guardians to obtain court
    approval of the annual accounting in order to pay or reimburse
19  costs incurred and reasonable fees or compensation to persons,
    including attorneys, employed by the guardian, from assets of
20  the guardianship estate.

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  21

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