HB 1327

CS

CHAMBER ACTION

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

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