Senate Bill sb2568e1

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  1                      A bill to be entitled

  2         An act relating to children and family

  3         services; amending s. 744.102, F.S.; redefining

  4         the term "professional guardian"; amending s.

  5         744.1083, F.S.; revising procedures for

  6         registration of professional and public

  7         guardians; providing for the Department of

  8         Elderly Affairs to contract with a

  9         not-for-profit entity; providing for

10         prerequisites; providing for a form; providing

11         fees; requiring information to be provided to

12         the courts; providing for voluntary

13         registration as a public guardian of a state

14         college or university or independent college or

15         university; providing required registration

16         information; amending s. 744.1085, F.S.;

17         revising provisions relating to the regulation

18         of professional and public guardians; providing

19         for credit checks and background screenings;

20         providing for an examination; providing for

21         waiver of examination; prohibiting the

22         appointment, after a specified date, of

23         professional and public guardians who have not

24         met these requirements; amending s. 744.3135,

25         F.S., relating to credit and criminal

26         investigations; allowing a court to require

27         nonprofessional guardians to undergo credit

28         checks and background screening; amending s.

29         744.444, F.S.; allowing plenary or limited

30         guardians to employ case managers; permitting

31         reasonable reimbursement of compensation and


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 1         fees for persons employed by the guardian for

 2         services provided to the guardianship estate;

 3         allowing plenary or limited guardians to

 4         provide certain confidential information to

 5         ombudsman council members; requiring that

 6         confidentiality be maintained; amending s.

 7         744.534, F.S.; providing for the Secretary of

 8         Elderly Affairs to determine the use of certain

 9         unclaimed funds held by a guardian; amending s.

10         744.7021, F.S.; revising the organization of

11         the Statewide Public Guardianship Office within

12         the Department of Elderly Affairs; providing

13         that the Secretary of Elderly Affairs shall

14         appoint or contract with the head of the office

15         to be executive director; providing for

16         rulemaking by the department; amending s.

17         744.704, F.S.; revising the powers and duties

18         of public guardians; prescribing who may be

19         served by public guardians; creating the

20         Guardianship Task Force within the department;

21         providing purpose; providing for staff, a

22         chairperson, and membership of the task force;

23         providing for organizations that appoint

24         members to pay their expenses; providing duties

25         of the task force; requiring a preliminary and

26         a final report to the Governor and the

27         Legislature; allowing the appointment of

28         auxiliary members; providing a term of service;

29         amending s. 744.108, F.S.; providing that costs

30         and attorney's fees incurred as part of the

31         guardianship administration shall be determined


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 1         by the court; amending s. 744.3145, F.S.;

 2         reducing the educational requirements for a

 3         person serving as a guardian for the person's

 4         minor child; creating ss. 393.506 and 400.9685,

 5         F.S.; providing for certain unlicensed staff to

 6         assist persons with developmental disabilities

 7         to administer certain prescription medications;

 8         providing the conditions under which staff may

 9         assist with medication; requiring the Agency

10         for Health Care Administration to provide for

11         specified aspects of the administration of

12         medication in rule; amending s. 415.102, F.S.;

13         redefining the terms "abuse," "neglect," and

14         "vulnerable adult"; creating s. 415.1046, F.S.;

15         providing the Department of Children and Family

16         Services with the authority to contract for

17         provision of adult protective investigative

18         services; stipulating the requirements for

19         sheriffs' offices to be eligible to contract

20         for provision of adult protective investigative

21         services; providing for the contracting and

22         funding for adult protective investigative

23         services; requiring sheriff's employees to

24         complete certain training; stipulating minimum

25         requirements for the sheriffs' offices'

26         operation of adult protective investigations;

27         requiring a program performance evaluation;

28         amending s. 402.310, F.S.; authorizing the

29         Department of Children and Family Services or a

30         local licensing agency to deny, suspend, or

31         revoke the license of a child care facility, a


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    CS for SB 2568                                 First Engrossed



 1         licensed family day care home, or a large

 2         family child care home and to deny, suspend, or

 3         revoke the registration of a family day care

 4         home following a violation of certain laws or

 5         rules; amending s. 402.313, F.S.; abolishing

 6         the authority of the Department of Children and

 7         Family Services or a local licensing agency to

 8         impose an administrative fine for family day

 9         care homes; requiring the department to

10         establish minimum safety standards for licensed

11         family day care homes; amending s. 402.3131,

12         F.S.; abolishing the authority of the

13         Department of Children and Family Services or a

14         local licensing agency to impose an

15         administrative fine for large family child care

16         homes; amending s. 402.3055, F.S.; requiring a

17         signed affidavit attesting to the accuracy of

18         certain information provided by an applicant

19         for a child care facility license; amending s.

20         402.310, F.S.; requiring the Department of

21         Children and Family Services to establish and

22         impose uniform penalties relating to child care

23         facility violations; requiring implementation

24         not contingent upon an appropriation; creating

25         s. 402.3105, F.S.; requiring the department to

26         establish a database of information relating to

27         violations, citations, and penalties imposed

28         against child care facilities regulated by the

29         state; requiring the Department of Children and

30         Family Services to consult and meet the

31         requirements of the State Technology Office;


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 1         specifying database capabilities and uses of

 2         information contained therein; requiring

 3         implementation not contingent upon an

 4         appropriation; directing the Department of

 5         Children and Family Services to adopt a rule

 6         defining child care; providing an effective

 7         date.

 8  

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

10  

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

12  Statutes, is amended to read:

13         744.102  Definitions.--As used in this chapter, the

14  term:

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

16  receives or has at any time received compensation for services

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

18  professional guardian may serve as a public guardian pursuant

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

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

21  considered a professional guardian.

22         Section 2.  Section 744.1083, Florida Statutes, is

23  amended to read:

24         744.1083  Professional guardian Registration of

25  professional and public guardians.--

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

27  guardian and a public guardian must register biennially with

28  the Statewide Public Guardianship Office as established in

29  part IX of this chapter. The Statewide Public Guardianship

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

31  


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 1  to perform the administrative functions associated with

 2  registering professional guardians.

 3         (2)  The Department of Elderly Affairs may 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         (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  

31  


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 1         (e)  Demonstration of compliance with the bonding,

 2  educational, testing, credit history, and background screening

 3  requirements of ss. 744.1085 and 744.3135.

 4  

 5  Compliance with this subsection constitutes compliance with

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

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

 8  registration fee to cover the actual cost of guardian

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

10  exceed $100.

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

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

13  procedures prescribed by the department, provide to the clerk

14  of court and the chief judge of each judicial circuit

15  information relating to guardian registration.

16         (e)  Documentation that the bonding and educational

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

18  screening has been conducted pursuant to s. 744.3135.

19         (6)(4)  The Department of Elderly Affairs Statewide

20  Public Guardianship Office shall may adopt rules, forms, and

21  procedures necessary to administer this section.

22         (7)(5)  A trust company, a state banking corporation or

23  state savings association authorized and qualified to exercise

24  fiduciary powers in this state, or a national banking

25  association or federal savings and loan association authorized

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

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

28  guardian under this section and may serve as a professional

29  guardian without registration with all of the rights and

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

31  trust company, state banking corporation, state savings


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 1  association, national banking association, or federal savings

 2  and loan association described in this subsection elects to

 3  register as a professional guardian under this subsection, the

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

 5  registration shall include only the name, address, and

 6  employer identification number of the registrant, the name and

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

 8  described in paragraph (3)(e).

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

10  college or university as described pursuant to s.

11  1009.98(3)(a) may, but shall not be required to, register as a

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

13  university or independent college or university elects to

14  register as a public guardian under this subsection, the

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

16  registration shall include only the name, address, and

17  employer identification number of the registrant.

18         Section 3.  Section 744.1085, Florida Statutes, is

19  amended to read:

20         744.1085  Regulation of professional and public

21  guardians; application; bond required; educational

22  requirements.--

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

24  and supplemental to any other provision of the Florida

25  Guardianship Law, except s. 744.3145.

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

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

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

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

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

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


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

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

 3  $50,000.  The bond must cover all wards for whom the guardian

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

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

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

 7  professional guardian has been appointed. The act or omissions

 8  of each employee of a professional guardian who has direct

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

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

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

12  successors in office and conditioned on the faithful

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

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

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

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

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

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

19  The expenses incurred to satisfy the bonding requirements

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

21  any ward.

22         (3)  Each professional guardian defined in s.

23  744.102(15) and public guardian, on October 1, 1997, must

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

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

26  professional guardian, whichever occurs later.  Each

27  professional guardian must receive a minimum of 16 hours of

28  continuing education every 2 calendar years after the year in

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

30  instruction and education must be completed through a course

31  approved or offered by the Statewide Public Guardianship


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    CS for SB 2568                                 First Engrossed



 1  Office. The expenses incurred to satisfy the educational

 2  requirements prescribed in this section may not be paid with

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

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

 5         (4)  Each professional guardian or public guardian must

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

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

 8  the Department of Elderly Affairs.

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

10  public guardian must allow a level 2 background screening of

11  the guardian in accordance with s. 435.04.

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

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

14  professional guardian or public guardian by taking an

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

16  744.1083(2) and adopted by the Department of Elderly Affairs.

17  The department shall determine the procedure for administering

18  the examination and shall charge an examination fee in the

19  amount of the actual cost of developing and administering the

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

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

22  recognize the passing of a national guardianship examination

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

24  except that each professional or public guardian must take and

25  pass an approved examination section relating to Florida laws

26  and procedures.

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

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

29  minimum score necessary to demonstrate competency to become a

30  professional or public guardian.

31  


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 1         (8)  The department shall waive the examination

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

 3  public guardian provides:

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

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

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

 7  circuit before whom the professional or public guardian

 8  practiced at least 1 year which states that the professional

 9  guardian has demonstrated to the court her or his competency

10  as a professional or public guardian.

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

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

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

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

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

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

17  association authorized and qualified to exercise fiduciary

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

19  federal savings and loan association authorized and qualified

20  to exercise fiduciary powers in this state.

21         Section 4.  Section 744.3135, Florida Statutes, is

22  amended to read:

23         744.3135  Credit and criminal investigation.--The court

24  may require a nonprofessional guardian and shall require a

25  professional or public guardian, and all employees of a

26  professional guardian who have a fiduciary responsibility to a

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

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

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

30  the court shall obtain fingerprint cards from the Federal

31  Bureau of Investigation and make them available to guardians.


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

 2  fingerprints taken and forward the proper fingerprint card

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

 4  Enforcement for processing. The professional guardian shall

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

 6  processing professional guardian files. The results of the

 7  fingerprint checks shall be forwarded to the clerk of court

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

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

10  investigations are required, the court must consider the

11  results of the investigations in appointing a guardian.

12  Professional and public guardians and all employees of a

13  professional guardian who have a fiduciary responsibility to a

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

15  investigation of credit history, and undergo level 1

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

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

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

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

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

21  must consider the results of these investigations in

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

23  professional guardian, or to the employees of a professional

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

25  or state savings association authorized and qualified to

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

27  association or federal savings and loan association authorized

28  and qualified to exercise fiduciary powers in this state.

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

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

31  to that section, to read:


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    CS for SB 2568                                 First Engrossed



 1         744.444  Power of guardian without court

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

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

 4  property within the powers granted by the order appointing the

 5  guardian or an approved annual or amended guardianship report,

 6  may:

 7         (13)  When reasonably necessary, employ persons,

 8  including attorneys, auditors, investment advisers, case

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

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

11  of his or her duties.

12         (16)  Pay or reimburse costs incurred and reasonable

13  fees or compensation to persons, including attorneys, employed

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

15  the guardianship estate, subject to obtaining court approval

16  of the annual accounting.

17         (17)  Provide confidential information of a ward which

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

19  400 to a local or state ombudsman council member who is

20  conducting the investigation. Such information must be

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

22  such ombudsman must maintain the confidentiality of such

23  information.

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

25  744.534, Florida Statutes, is amended to read:

26         744.534  Disposition of unclaimed funds held by

27  guardian.--

28         (2)

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

30  State Treasurer, on written petition to the court that

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


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

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

 3  after payment to the State Treasurer and deposit as provided

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

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

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

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

 8  the Department of Elderly Affairs Administrative Trust Fund to

 9  be used solely for the benefit of public guardianship as

10  determined by the Secretary of Elderly Affairs Statewide

11  Public Guardianship Office established in part IX of this

12  chapter.

13         Section 7.  Section 744.7021, Florida Statutes, is

14  amended to read:

15         744.7021  Statewide Public Guardianship Office.--There

16  is hereby created the Statewide Public Guardianship Office

17  within the Department of Elderly Affairs. The Department of

18  Elderly Affairs shall provide administrative support and

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

20  director within the available resources of the department. The

21  Statewide Public Guardianship Office may request the

22  assistance of the Inspector General of the Department of

23  Elderly Affairs in providing auditing services, and the Office

24  of General Counsel of the department may provide assistance in

25  rulemaking and other matters as needed to assist the Statewide

26  Public Guardianship Office. The Statewide Public Guardianship

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

28  direction by the Department of Elderly Affairs in the

29  performance of its duties.

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

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


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

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

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

 4  good standing licensed attorney with a background in

 5  guardianship law and knowledge of social services available to

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

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

 8  representatives of the office, carry out the purposes and

 9  functions of the Statewide Public Guardianship Office in

10  accordance with state and federal law. The executive director

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

12  Governor.

13         (2)  The executive director Statewide Public

14  Guardianship Office shall, directly or through contract with

15  the Department of Elderly Affairs, and within available

16  resources, have oversight responsibilities for all public and

17  professional guardians.

18         (a)  The executive director office shall review the

19  current public guardian programs in Florida and other states.

20         (b)  The executive director office, in consultation

21  with local guardianship offices, shall develop statewide

22  performance measures and standards.

23         (c)  The executive director office shall review the

24  various methods of funding guardianship programs, the kinds of

25  services being provided by such programs, and the demographics

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

27  review and make recommendations regarding the feasibility of

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

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

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

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


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

 2  of the Supreme Court an interim report describing the progress

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

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

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

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

 7  of the Supreme Court a proposed public guardianship plan

 8  including alternatives for meeting the state's guardianship

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

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

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

12  thereafter, the executive director office shall provide a

13  status report and provide to the secretary further

14  recommendations that to address the need for public

15  guardianship services and related issues.

16         (e)  The executive director office may provide

17  assistance to local governments or entities in pursuing grant

18  opportunities. The executive director office shall review and

19  make recommendations in the annual report on the availability

20  and efficacy of seeking Medicaid matching funds. The executive

21  director office shall diligently seek ways to use existing

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

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

24  entity provided in s. 744.1083 office shall develop a

25  guardianship training program curriculum that. The training

26  program may be offered to all guardians whether public or

27  private. The office shall establish a curriculum committee to

28  develop the training program specified in this part. The

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

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

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


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    CS for SB 2568                                 First Engrossed



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

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

 3  curriculum. Any fees collected pursuant to this paragraph

 4  shall be deposited in the Department of Elderly Affairs

 5  Administrative Trust Fund to be used for the guardianship

 6  training program.

 7         (3)  The executive director office may conduct or

 8  contract for demonstration projects authorized by the

 9  Department of Elderly Affairs, within funds appropriated or

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

11  determine the feasibility or desirability of new concepts of

12  organization, administration, financing, or service delivery

13  designed to preserve the civil and constitutional rights of

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

15  or contributions for such purposes shall be deposited in the

16  Department of Elderly Affairs Administrative Trust Fund.

17         (4)  The Department of Elderly Affairs office has

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

19  to carry out the provisions of this section.

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

21  744.704, Florida Statutes, are amended to read:

22         744.704  Powers and duties.--

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

24  person adjudicated incapacitated under this chapter. : 

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

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

27  guardian; and 

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

29  level for Medicaid eligibility, exclusive of homestead and

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

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


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    CS for SB 2568                                 First Engrossed



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

 2  supplemental security income, optional state supplement, a

 3  disability pension, or a social security pension shall be

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

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

 6  not be served.

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

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

 9  otherwise provided by law.

10         (3)  The public guardian shall primarily serve

11  incapacitated persons who are of limited financial means, as

12  defined by contract or rule of the Department of Elderly

13  Affairs. The public guardian may serve incapacitated persons

14  of greater financial means to the extent that the Department

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

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

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

18  guardian shall submit a resignation and petition the court for

19  appointment of a successor guardian.  The public guardian

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

21  is appointed.  If a qualified successor guardian is not

22  available, the public guardian may remain as guardian,

23  provided the guardian makes reasonable efforts to find a

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

25  to obtain a successor.

26         Section 9.  Guardianship Task Force; creation;

27  membership, duties.--

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

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

30  force is to examine guardianship and incapacity and make

31  recommendations to the Governor and the Legislature for the


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    CS for SB 2568                                 First Engrossed



 1  improvement of guardianship and incapacity practice. The

 2  department shall staff the task force. The Secretary of

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

 4  Members of the task force shall serve without compensation.

 5  Unless specified otherwise, task force members shall be

 6  appointed by the respective organizations that they represent.

 7         (2)  Members shall serve without compensation. Any

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

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

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

11  be borne by the organization that appointed the member.

12         (3)  The Guardianship Task Force shall identify the

13  characteristics of Florida guardianship practice. It shall

14  also identify guardianship best practices and recommend

15  specific statutory and other changes for achieving such best

16  practices and for achieving citizen access to quality

17  guardianship services. The task force shall submit a

18  preliminary report to the Governor, the Secretary of Elderly

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

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

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

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

23  guardianship proceedings appointed by the Florida Conference

24  of Circuit Judges, a representative of the Association of

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

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

27  representative of the Florida State Guardianship Association,

28  a representative of the Florida Guardianship Foundation, a

29  representative of the Real Property and Probate Section of The

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

31  Florida Bar, a professional who has experience in examining


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    CS for SB 2568                                 First Engrossed



 1  and determining incapacity, a representative of the Florida

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

 3  Florida AARP (American Association of Retired Persons).

 4         (5)  The Guardianship Task Force may appoint auxiliary

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

 6  carrying out its duties.

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

 8         Section 10.  Subsection (8) is added to section

 9  744.108, Florida Statutes, to read:

10         744.108  Guardian's and attorney's fees and expenses.--

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

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

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

14  administration process and the costs, including fees for the

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

16  from the assets of the guardianship estate unless the court

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

18  substantially unreasonable.

19         Section 11.  Section 744.3145, Florida Statutes, is

20  amended to read:

21         744.3145  Guardian education requirements.--

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

23  perform the duties of a guardian necessary to protect the

24  interests of the ward.

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

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

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

28  of instruction and training which covers:

29         (a)  The legal duties and responsibilities of the

30  guardian;

31         (b)  The rights of the ward;


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    CS for SB 2568                                 First Engrossed



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

 2  ward; and

 3         (d)  The preparation of habilitation plans and annual

 4  guardianship reports, including financial accounting for the

 5  ward's property.

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

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

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

 9  covers:

10         (a)  The legal duties and responsibilities of the

11  guardian of the property;

12         (b)  The preparation of the initial inventory and

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

14         (c)  Use of guardianship assets.

15         (4)(3)  Each person appointed by the court to be a

16  guardian must complete the required number of 8 hours of

17  instruction and education within 1 year after his or her

18  appointment as guardian.  The instruction and education must

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

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

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

22  to, community or junior colleges, guardianship organizations,

23  and the local bar association or The Florida Bar.

24         (5)(4)  Expenses incurred by the guardian to satisfy

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

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

27  guardian individually.

28         (6)(5)  The court may, in its discretion, waive some or

29  all of the requirements of this section or impose additional

30  requirements.  The court shall make its decision on a

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


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    CS for SB 2568                                 First Engrossed



 1  the experience and education of the guardian, the duties

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

 3         (7)(6)  The provisions of this section do not apply to

 4  professional guardians.

 5         Section 12.  Section 393.506, Florida Statutes, is

 6  created to read:

 7         393.506  Administration of medication.--

 8         (1)  Notwithstanding the provisions of part I of

 9  chapter 464, the Nurse Practice Act, unlicensed direct care

10  service staff providing services to persons with developmental

11  disabilities may administer oral, transdermal, inhaled, or

12  topical prescription medications as provided in this section.

13         (a)  For day programs, as defined in s. 393.063, the

14  director of the facility or program shall designate in writing

15  unlicensed direct care services staff who are eligible to be

16  trained to assist in the administration of or to administer

17  medication.

18         (b)  For intermediate care facilities for the

19  developmentally disabled licensed pursuant to part XI of

20  chapter 400, unlicensed staff designated by the director may

21  provide medication assistance under the general supervision of

22  a registered nurse licensed pursuant to chapter 464.

23         (2)  Each facility, institution, or program must

24  include in its policies and procedures a plan for training

25  designated staff to ensure the safe handling, storage, and

26  administration of prescription medication. These policies and

27  procedures must be approved by the department before

28  unlicensed direct care services staff assist with medication.

29         (3)  The policies and procedures must include, at a

30  minimum, the following provisions:

31         (a)  An expressed and informed consent for each client.


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    CS for SB 2568                                 First Engrossed



 1         (b)  The director of the facility, program, or provider

 2  must maintain a copy of the written prescription, and that

 3  prescription must include the name of the medication, the

 4  dosage and administration schedule, the reason for the

 5  prescription, and the termination date.

 6         (c)  Each prescribed medication shall be kept in its

 7  original container and in a secure location.

 8         (4)  The training required in this section shall be

 9  conducted by a registered nurse or a physician licensed

10  pursuant to chapter 458 or chapter 459.

11         Section 13.  Section 400.9685, Florida Statutes, is

12  created to read:

13         400.9685  Administration of medication.--

14         (1)  Notwithstanding the provisions of the Nurse

15  Practice Act, part I of chapter 464, unlicensed direct care

16  services staff who are providing services to clients in

17  Intermediate Care Facilities for the Developmentally Disabled,

18  licensed pursuant to this part, may administer prescribed,

19  prepackaged, pre-measured medications under the general

20  supervision of a registered nurse as provided in this section

21  and applicable rules. Training required by this section and

22  applicable rules must be conducted by a registered nurse

23  licensed pursuant to chapter 464, or a physician licensed

24  pursuant to chapter 458 or chapter 459.

25         (2)  Each facility that allows unlicensed direct care

26  service staff to administer medications pursuant to this

27  section must:

28         (a)  Develop and implement policies and procedures that

29  include a plan to ensure the safe handling, storage, and

30  administration of prescription medication.

31  


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    CS for SB 2568                                 First Engrossed



 1         (b)  Maintain written evidence of the expressed and

 2  informed consent for each client.

 3         (c)  Maintain a copy of the written prescription

 4  including the name of the medication, the dosage, and

 5  administration schedule.

 6         (d)  Maintain documentation regarding the prescription

 7  including the name, dosage, and administration schedule,

 8  reason for prescription, and the termination date; and

 9         (e)  Maintain documentation of compliance with required

10  training.

11         (3)  Agency rules shall specify the following as it

12  relates to the administration of medications by unlicensed

13  staff:

14         (a)  Medications authorized and packaging required.

15         (b)  Acceptable methods of administration.

16         (c)  A definition of "general supervision".

17         (d)  Minimum educational requirements of staff.

18         (e)  Criteria of required training and competency that

19  must be demonstrated prior to the administration of

20  medications by unlicensed staff including in-service training.

21         (f)  Requirements for safe handling, storage, and

22  administration of medications.

23         Section 14.  Subsections (1), (15), and (26) of section

24  415.102, Florida Statutes, are amended to read:

25         415.102  Definitions of terms used in ss.

26  415.101-415.113.--As used in ss. 415.101-415.113, the term:

27         (1)  "Abuse" means any willful act or threatened act by

28  a caregiver that causes or is likely to cause significant

29  impairment to a vulnerable adult's physical, mental, or

30  emotional health. Abuse includes acts and omissions.

31  


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    CS for SB 2568                                 First Engrossed



 1         (15)  "Neglect" means the failure or omission on the

 2  part of the caregiver or vulnerable adult to provide the care,

 3  supervision, and services necessary to maintain the physical

 4  and mental health of the vulnerable adult, including, but not

 5  limited to, food, clothing, medicine, shelter, supervision,

 6  and medical services, that a prudent person would consider

 7  essential for the well-being of a vulnerable adult.  The term

 8  "neglect" also means the failure of a caregiver or vulnerable

 9  adult to make a reasonable effort to protect a vulnerable

10  adult from abuse, neglect, or exploitation by others.

11  "Neglect" is repeated conduct or a single incident of

12  carelessness which produces or could reasonably be expected to

13  result in serious physical or psychological injury or a

14  substantial risk of death.

15         (26)  "Vulnerable adult" means a person 18 years of age

16  or older whose ability to perform the normal activities of

17  daily living or to provide for his or her own care or

18  protection is impaired due to a mental, emotional, long-term

19  physical, or developmental disability or dysfunctioning, or

20  brain damage, or the infirmities of aging.

21         Section 15.  Section 415.1046, Florida Statutes, is

22  created to read:

23         415.1046  Department authorization to contract for the

24  provision of adult protective investigative services;

25  procedures; funding.--

26         (1)  As described in this section, the department may

27  contract for the performance of adult protective

28  investigations of alleged acts of exploitation with a

29  sheriff's office that is deemed eligible as stipulated in

30  subsection (2). The department and eligible sheriffs' offices

31  may enter into a contract for the provision of adult


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    CS for SB 2568                                 First Engrossed



 1  protective investigation services of adult exploitation that

 2  is alleged to have occurred in the county of the respective

 3  sheriff.  Such contracts may not include adult abuse and

 4  neglect cases.

 5         (2)  A sheriff's office is eligible to contract with

 6  the department for the provision of adult protective

 7  investigation services if:

 8         (a)  The sheriff's office has been responsible for the

 9  provision of child protective investigation services, pursuant

10  to s. 39.3065, for a minimum of 2 years; and

11         (b)  The annual program performance evaluation

12  conducted pursuant to s. 39.3065(3)(d), has determined that

13  the sheriff's office is satisfactorily performing child

14  protective investigations.

15         (3)  During the first year in which a sheriff's office

16  contracts with the department for provision of adult

17  protective investigation services, the funding associated with

18  the provision of the services to be furnished, including, but

19  not limited to, funding for appropriate investigative,

20  supervisory, and clerical positions; training; associated

21  equipment; furnishings; and other fixed capital items, must be

22  transferred from the department's budget to the sheriff's

23  office.  In subsequent years, funding for providing the adult

24  protective investigative services must be identified for each

25  sheriff's office entering into a contract in the annual

26  appropriation made to the department, and the department shall

27  contract with each respective sheriff's office for the full

28  amount identified.  Notwithstanding ss. 216.181(16)(b) and

29  216.351, the department may advance payments to the sheriffs'

30  offices for adult protective investigation services.  Funds

31  for the adult protective investigations may not be integrated


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    CS for SB 2568                                 First Engrossed



 1  into the sheriffs' regular budgets.  Budgetary data and other

 2  data relating to the performance of adult protective

 3  investigations must be maintained separately from all other

 4  records of the sheriffs' offices and reported to the

 5  department as specified in the contract.

 6         (4)  Each employee of the sheriffs' offices who

 7  provides these services must complete the training provided to

 8  and required of the adult protective investigators employed by

 9  the department.

10         (5)  The sheriffs' offices under contract with the

11  department shall operate, at a minimum, in accordance with the

12  performance standards and outcome measures established by the

13  Legislature for adult protective investigations conducted by

14  the department.

15         (6)  A program performance evaluation shall be

16  conducted of the adult protective investigations performed by

17  each of the sheriffs' offices entering into contract with the

18  department. This program performance evaluation shall be

19  conducted in the same manner as the program performance

20  evaluation for child protective investigations stipulated in

21  s. 39.3065(3)(d), and shall be incorporated into the annual

22  report required pursuant to s. 39.3065(3)(d).

23         Section 16.  Section 402.310, Florida Statutes, is

24  amended to read:

25         402.310  Disciplinary actions; hearings upon denial,

26  suspension, or revocation of license; administrative fines.--

27         (1)(a)  The department or local licensing agency may

28  deny, suspend, or revoke a license of a child care facility, a

29  licensed family day care home, or a large family child care

30  home or the registration of a family day care home, or may

31  impose an administrative fine not to exceed $100 per


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    CS for SB 2568                                 First Engrossed



 1  violation, per day, for the violation of any provision of ss.

 2  402.301-402.319 or rules adopted thereunder. However, where

 3  the violation could or does cause death or serious harm, the

 4  department or local licensing agency may impose an

 5  administrative fine, not to exceed $500 per violation per day.

 6         (b)  In determining the appropriate disciplinary action

 7  to be taken for a violation as provided in paragraph (a), the

 8  following factors shall be considered:

 9         1.  The severity of the violation, including the

10  probability that death or serious harm to the health or safety

11  of any person will result or has resulted, the severity of the

12  actual or potential harm, and the extent to which the

13  provisions of ss. 402.301-402.319 have been violated.

14         2.  Actions taken by the licensee or registrant to

15  correct the violation or to remedy complaints.

16         3.  Any previous violations of the licensee.

17         (2)  When the department has reasonable cause to

18  believe that grounds for the denial, suspension, or revocation

19  of a license or registration or imposition of an

20  administrative fine exist, it shall determine the matter in

21  accordance with procedures prescribed in chapter 120.  When

22  the local licensing agency has reasonable cause to believe

23  that grounds for the denial, suspension, or revocation of a

24  license or registration or imposition of an administrative

25  fine exist, it shall notify the applicant, registrant, or

26  licensee in writing, stating the grounds upon which the

27  license or registration is being denied, suspended, or revoked

28  or an administrative fine is being imposed.  If the applicant,

29  registrant, or licensee makes no written request for a hearing

30  to the local licensing agency within 15 days after from

31  receipt of such notice, the license or registration shall be


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    CS for SB 2568                                 First Engrossed



 1  deemed denied, suspended, or revoked or an administrative fine

 2  shall be imposed.

 3         (3)  If a request for a hearing is made to the local

 4  licensing agency, a hearing shall be held within 30 days and

 5  shall be conducted by an individual designated by the county

 6  commission.

 7         (4)  An applicant, registrant, or licensee shall have

 8  the right to appeal a decision of the local licensing agency

 9  to a representative of the department. Any required hearing

10  shall be held in the county in which the child care facility

11  is being operated or is to be established. The hearing shall

12  be conducted in accordance with the provisions of chapter 120.

13         Section 17.  Paragraph (b) of subsection (1) of section

14  402.313, Florida Statutes is repealed, present paragraphs (c)

15  and (d) of that subsection are redesignated as paragraphs (b)

16  and (c), respectively, and subsection (10) of that section is

17  amended, to read:

18         402.313  Family day care homes.--

19         (1)  Family day care homes shall be licensed under this

20  act if they are presently being licensed under an existing

21  county licensing ordinance, if they are participating in the

22  subsidized child care program, or if the board of county

23  commissioners passes a resolution that family day care homes

24  be licensed.  If no county authority exists for the licensing

25  of a family day care home, the department shall have the

26  authority to license family day care homes under contract for

27  the purchase-of-service system in the subsidized child care

28  program.

29         (b)  The department or local licensing agency may

30  impose an administrative fine, not to exceed $100, for failure

31  to comply with licensure or registration requirements.


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    CS for SB 2568                                 First Engrossed



 1         (10)  The department shall, by rule, establish minimum

 2  standards for family day care homes that are required to be

 3  licensed by county licensing ordinance or county licensing

 4  resolution or that voluntarily choose to be licensed. The

 5  standards should include requirements for staffing, training,

 6  maintenance of immunization records, minimum health and safety

 7  standards, reduced standards for the regulation of child care

 8  during evening hours by municipalities and counties, and

 9  enforcement of standards.

10         Section 18.  Paragraph (a) of subsection (1) of section

11  402.3131, Florida Statutes, is repealed, and present

12  paragraphs (b) and (c) of that section are redesignated as

13  paragraphs (a) and (b), respectively, to read:

14         402.3131  Large family child care homes.--

15         (1)  Large family child care homes shall be licensed

16  under this section.

17         (a)  The department or local licensing agency may

18  impose an administrative fine, not to exceed $1,000, for

19  failure to comply with licensure requirements.

20         Section 19.  Paragraph (a) of subsection (1) of section

21  402.3055, Florida Statutes, is amended to read:

22         402.3055  Child care personnel requirements.--

23         (1)  REQUIREMENTS FOR CHILD CARE PERSONNEL.--

24         (a)  The department or local licensing agency shall

25  require that the application for a child care license contain

26  a question that specifically asks the applicant, owner, or

27  operator if he or she has ever had a license denied, revoked,

28  or suspended in any state or jurisdiction or has been the

29  subject of a disciplinary action or been fined while employed

30  in a child care facility. The applicant, owner, or operator

31  


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    CS for SB 2568                                 First Engrossed



 1  shall sign an affidavit attesting attest to the accuracy of

 2  the information requested under penalty of perjury.

 3         1.  If the applicant, owner, or operator admits that he

 4  or she has been a party in such action, the department or

 5  local licensing agency shall review the nature of the

 6  suspension, revocation, disciplinary action, or fine before

 7  granting the applicant a license to operate a child care

 8  facility.

 9         2.  If the department or local licensing agency

10  determines as the result of such review that it is not in the

11  best interest of the state or local jurisdiction for the

12  applicant to be licensed, a license shall not be granted.

13         Section 20.  Paragraph (c) is added to subsection (1)

14  of section 402.310, Florida Statutes, to read:

15         402.310  Disciplinary actions; hearings upon denial,

16  suspension, or revocation of license; administrative fines.--

17         (1)

18         (c)  The department shall establish and impose uniform

19  penalties for violations of ss. 402.301-402.319 and the rules

20  adopted thereunder. The department shall implement this

21  paragraph beginning on the effective date of this act, and

22  such implementation shall not be contingent upon a specific

23  appropriation therefor.

24         Section 21.  Section 402.3105, Florida Statutes, is

25  created to read:

26         402.3105  Central database on violations, citations,

27  and penalties imposed against child care facilities.--

28         (1)  The Department of Children and Family Services

29  shall establish and maintain a central database to record and

30  compile all district information relating to violations,

31  


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    CS for SB 2568                                 First Engrossed



 1  citations, and penalties imposed against child care facilities

 2  regulated by the department.

 3         (2)  The database shall be operated in a manner that

 4  enables the department to identify and locate such information

 5  for purposes of monitoring and evaluating the uniformity and

 6  effectiveness of district investigations and enforcement, in

 7  order to ensure compliance of child care facilities with state

 8  regulatory requirements. The database shall further maintain

 9  and produce aggregate statistical reports monitoring patterns

10  of violations, citations, and penalties, including the classes

11  and types of violations and any actions taken to suspend or

12  revoke the license of a child care facility.

13         (3)  The information in the database shall serve as a

14  resource for the evaluation of child care facilities for

15  license renewal but may not be used for employment screening.

16  The information in the database shall be made available to the

17  public upon request pursuant to chapter 119, relating to

18  public records.

19         (4)  In consultation with the State Technology Office,

20  the Department of Children and Family Services shall establish

21  and maintain a central database to record and compile all

22  district information relating to violations, citations, and

23  penalties imposed against child care facilities regulated by

24  the department. This system shall be developed pursuant to

25  chapter 282, and the department shall implement, operate, and

26  maintain the system in accordance with the policies and

27  procedures established by the State Technology Office.

28         (5)  The Department of Children and Family Services

29  shall implement this section beginning on the effective date

30  of this act, and such implementation shall not be contingent

31  upon a specific appropriation therefor.


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    CS for SB 2568                                 First Engrossed



 1         Section 22.  The Department of Children and Family

 2  Services shall establish by rule a definition for child care

 3  which distinguishes between child care programs that require

 4  child care licensure and after-school programs that do not

 5  require licensure.

 6         Section 23.  This act shall take effect July 1, 2003.

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