HB 1327

1	A bill to be entitled
2	An act relating to guardianship; amending s. 737.2065,
3	F.S.; excepting from a prohibition against commencing
4	certain actions contesting trust validity by property
5	guardians of incapacitated grantors; amending s. 744.331,
6	F.S.; requiring a court to determine whether acceptable
7	alternatives to guardianship of incapacitated persons
8	exist under certain circumstances; requiring appointment
9	of a guardian if no alternative exists; prohibiting such
10	appointment if an alternative exists; specifying
11	circumstances of nonexistence of an alternative;
12	preserving certain court authority to determine exercise
13	of certain powers of attorney; amending s. 744.441, F.S.;
14	requiring a court to make certain findings in a ward?s
15	best interest before authorizing a guardian to bring
16	certain actions; requiring a court to review certain
17	continuing needs for guardians and delegation of a ward?s
18	rights; creating s. 744.462, F.S.; requiring guardians to
19	immediately report certain judicial determinations in
20	certain guardianship proceedings; requiring a court to
21	review certain continuing needs for guardians and
22	delegation of a ward?s rights under certain circumstances;
23	providing an effective date.
24
25	Be It Enacted by the Legislature of the State of Florida:
26
27	Section 1.  Section 737.2065, Florida Statutes, is amended
28	to read:
29	737.2065  Trust contests.--An action to contest the
30	validity of all or part of a trust may not be commenced until
31	the trust becomes irrevocable, except this section shall not
32	prohibit such action by the guardian of the property of an
33	incapacitated grantor.
34	Section 2.  Paragraphs (b) and (f) of subsection (6) of
35	section 744.331, Florida Statutes, are amended to read:
36	744.331  Procedures to determine incapacity.--
37	(6)  ORDER DETERMINING INCAPACITY.--If, after making
38	findings of fact on the basis of clear and convincing evidence,
39	the court finds that a person is incapacitated with respect to
40	the exercise of a particular right, or all rights, the court
41	shall enter a written order determining such incapacity. A
42	person is determined to be incapacitated only with respect to
43	those rights specified in the order.
44	(b)  When an order is entered which determines that a
45	person is incapable of exercising delegable rights, the court
46	must consider and find whether there is an alternative to
47	guardianship that will sufficiently address the problems of the
48	incapacitated person. A guardian must be appointed to exercise
49	the incapacitated person's delegable rights unless the court
50	finds that there is an alternative. A guardian shall not be
51	appointed if the court finds that there is an alternative to
52	guardianship that will sufficiently address the problems of the
53	incapacitated person In any order declaring a person
54	incapacitated the court must find that alternatives to
55	guardianship were considered and that no alternative to
56	guardianship will sufficiently address the problems of the ward.
57	(f)  Upon the filing of a verified statement by an
58	interested person stating that he or she has a good faith belief
59	that the alleged incapacitated person's trust, trust amendment,
60	or durable power of attorney is invalid and a reasonable factual
61	basis for that belief, the trust, trust amendment, or durable
62	power of attorney shall not be deemed to be an alternative to
63	the appointment of a guardian. The appointment of a guardian
64	shall not limit the court's authority to determine that certain
65	authority granted by a durable power of attorney is to remain
66	exercisable by the attorney in fact When an order is entered
67	which determines that a person is incapable of exercising
68	delegable rights, a guardian must be appointed to exercise those
69	rights.
70	Section 3.  Subsection (11) of section 744.441, Florida
71	Statutes, is amended to read:
72	744.441  Powers of guardian upon court approval.--After
73	obtaining approval of the court pursuant to a petition for
74	authorization to act, a plenary guardian of the property, or a
75	limited guardian of the property within the powers granted by
76	the order appointing the guardian or an approved annual or
77	amended guardianship report, may:
78	(11)  Prosecute or defend claims or proceedings in any
79	jurisdiction for the protection of the estate and of the
80	guardian in the performance of his or her duties. Before
81	authorizing a guardian to bring an action described in s.
82	737.2065, the court shall first find that the action appears to
83	be in the ward's best interests during the ward's probable
84	lifetime. If the court denies a request that a guardian be
85	authorized to bring an action described in s. 737.2065, the
86	court shall review the continued need for a guardian and the
87	extent of the need for delegation of the ward's rights.
88	Section 4.  Section 744.462, Florida Statutes, is created
89	to read:
90	744.462  Determination regarding alternatives to
91	guardianship.--Any judicial determination concerning the
92	validity of the ward's durable power of attorney, trust, or
93	trust amendment shall be promptly reported in the guardianship
94	proceeding by the guardian of the property. If the instrument
95	has been judicially determined to be valid, or if after the
96	appointment of a guardian a petition is filed alleging that
97	there is an alternative to guardianship that will sufficiently
98	address the problems of the ward, the court shall review the
99	continued need for a guardian and the extent of the need for
100	delegation of the ward's rights.
101	Section 5.  This act shall take effect upon becoming a law.

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