Senate Bill sb1782er
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2 An act relating to guardianship; creating s.
3 744.7101, F.S.; providing a short title;
4 creating s. 744.711, F.S.; providing
5 legislative findings and intent relating to the
6 Joining Forces for Public Guardianship program;
7 creating s. 744.712, F.S.; establishing the
8 grant program; providing for the program's
9 purposes; creating s. 744.713, F.S.; providing
10 for the administration of the program by the
11 Statewide Public Guardianship Office; providing
12 the duties and responsibilities of the office
13 relating to the grant program; creating s.
14 744.714, F.S.; providing eligibility for grant
15 awards; creating s. 744.715, F.S.; providing
16 application requirements, an application
17 process, and review criteria; amending s.
18 393.063, F.S.; redefining the term "guardian
19 advocate" for purposes of provisions governing
20 services for the developmentally disabled;
21 amending s. 393.12, F.S.; exempting a guardian
22 advocate from a requirement to file an annual
23 accounting in certain situations; amending s.
24 744.102, F.S.; defining the term "guardian
25 advocate" for purposes of the Florida
26 Guardianship Law; amending s. 744.1083, F.S.;
27 requiring that additional information be
28 reviewed by the Statewide Public Guardianship
29 Office prior to registering a professional
30 guardian; creating s. 744.3085, F.S.;
31 recommending that courts consider appointing a
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1 guardian advocate for persons with
2 developmental disabilities as a less
3 restrictive form of guardianship; amending s.
4 744.3135, F.S.; requiring the clerks of court
5 to forward certain information to the Statewide
6 Public Guardianship Office; amending s.
7 744.3678, F.S.; exempting a guardian from a
8 requirement to file an annual accounting in
9 certain situations; amending s. 744.7082, F.S.;
10 defining the term "direct-support
11 organization"; requiring the Secretary of
12 Elderly Affairs to appoint a board of directors
13 for the direct-support organization;
14 authorizing such an organization to use
15 property and facilities of the Department of
16 Elderly Affairs and the Statewide Public
17 Guardianship Office; requiring an annual audit
18 of the organization; providing for the
19 dissolution of entities improperly using the
20 direct-support organization designation;
21 amending ss. 121.091, 709.08, and 744.1085,
22 F.S., relating to the designation of
23 beneficiaries, the durable power of attorney,
24 and the regulation of professional guardians;
25 conforming cross-references; providing
26 effective dates.
27
28 Be It Enacted by the Legislature of the State of Florida:
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30 Section 1. Section 744.7101, Florida Statutes, is
31 created to read:
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1 744.7101 Short title.--Sections 744.7101-744.715 may
2 be cited as the "Joining Forces for Public Guardianship Act."
3 Section 2. Section 744.711, Florida Statutes, is
4 created to read:
5 744.711 Legislative findings and intent.--The
6 Legislature finds that public guardianship programs are
7 necessary to ensure that the rights and best interests of
8 Florida's vulnerable indigent and incapacitated residents are
9 protected. In addition, the Legislature finds that the best
10 solution to this problem is to encourage each county to
11 establish, through the Statewide Public Guardianship Office, a
12 local office of public guardian for the purpose of providing
13 guardianship services to incapacitated persons when a private
14 guardian is not available. Therefore, the Legislature intends
15 to establish the Joining Forces for Public Guardianship
16 matching grant program for the purpose of assisting counties
17 to establish and fund community-supported public guardianship
18 programs.
19 Section 3. Section 744.712, Florida Statutes, is
20 created to read:
21 744.712 Joining Forces for Public Guardianship grant
22 program; purpose.--The Joining Forces for Public Guardianship
23 matching grant program shall be established and administered
24 by the Statewide Public Guardianship Office within the
25 Department of Elderly Affairs. The purpose of the program is
26 to provide start-up funding to encourage communities to
27 develop and administer locally funded and supported public
28 guardianship programs to address the needs of indigent and
29 incapacitated residents.
30 (1) The Statewide Public Guardianship Office may
31 distribute the grant funds as follows:
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1 (a) As initial start-up funding to encourage counties
2 that have no office of public guardian to establish an office,
3 or as initial start-up funding to open an additional office of
4 public guardian within a county whose public guardianship
5 needs require more than one office of public guardian.
6 (b) As support funding to operational offices of
7 public guardian that demonstrate a necessity for funds to meet
8 the public guardianship needs of a particular geographic area
9 in the state which the office serves.
10 (c) To assist counties that have an operating public
11 guardianship program but that propose to expand the geographic
12 area or population of persons they serve, or to develop and
13 administer innovative programs to increase access to public
14 guardianship in this state.
15
16 Notwithstanding this subsection, the executive director of the
17 office may award emergency grants if he or she determines that
18 the award is in the best interests of public guardianship in
19 this state. Before making an emergency grant, the executive
20 director must obtain the written approval of the Secretary of
21 Elderly Affairs. Subsections (2), (3), and (4) do not apply to
22 the distribution of emergency grant funds.
23 (2) One or more grants may be awarded within a county.
24 However, a county may not receive an award that equals, or
25 multiple awards that cumulatively equal, more than 20 percent
26 of the total amount of grant funds appropriated during any
27 fiscal year.
28 (3) If an applicant is eligible and meets the
29 requirements to receive grant funds more than once, the
30 Statewide Public Guardianship Office shall award funds to
31 prior awardees in the following manner:
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1 (a) In the second year that grant funds are awarded,
2 the cumulative sum of the award provided to one or more
3 applicants within the same county may not exceed 75 percent of
4 the total amount of grant funds awarded within that county in
5 year one.
6 (b) In the third year that grant funds are awarded,
7 the cumulative sum of the award provided to one or more
8 applicants within the same county may not exceed 60 percent of
9 the total amount of grant funds awarded within that county in
10 year one.
11 (c) In the fourth year that grant funds are awarded,
12 the cumulative sum of the award provided to one or more
13 applicants within the same county may not exceed 45 percent of
14 the total amount of grant funds awarded within that county in
15 year one.
16 (d) In the fifth year that grant funds are awarded,
17 the cumulative sum of the award provided to one or more
18 applicants within the same county may not exceed 30 percent of
19 the total amount of grant funds awarded within that county in
20 year one.
21 (e) In the sixth year that grant funds are awarded,
22 the cumulative sum of the award provided to one or more
23 applicants within the same county may not exceed 15 percent of
24 the total amount of grant funds awarded within that county in
25 year one.
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27 The Statewide Public Guardianship Office may not award grant
28 funds to any applicant within a county that has received grant
29 funds for more than 6 years.
30 (4) Grant funds shall be used only to provide direct
31 services to indigent wards, except that up to 10 percent of
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1 the grant funds may be retained by the awardee for
2 administrative expenses.
3 (5) Implementation of the program is subject to a
4 specific appropriation by the Legislature in the General
5 Appropriations Act.
6 Section 4. Section 744.713, Florida Statutes, is
7 created to read:
8 744.713 Program administration; duties of the
9 Statewide Public Guardianship Office.--The Statewide Public
10 Guardianship Office shall administer the grant program. The
11 office shall:
12 (1) Publicize the availability of grant funds to
13 entities that may be eligible for the funds.
14 (2) Establish an application process for submitting a
15 grant proposal.
16 (3) Request, receive, and review proposals from
17 applicants seeking grant funds.
18 (4) Determine the amount of grant funds each awardee
19 may receive and award grant funds to applicants.
20 (5) Develop a monitoring process to evaluate grant
21 awardees, which may include an annual monitoring visit to each
22 awardee's local office.
23 (6) Ensure that persons or organizations awarded grant
24 funds meet and adhere to the requirements of this act.
25 (7) Adopt rules as necessary to administer the grant
26 program and this act.
27 Section 5. Section 744.714, Florida Statutes, is
28 created to read:
29 744.714 Eligibility.--
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1 (1) Any person or organization that has not been
2 awarded a grant must meet all of the following conditions to
3 be eligible to receive a grant:
4 (a) The applicant must meet or directly employ staff
5 that meet the minimum qualifications for a public guardian
6 under this chapter.
7 (b) The applicant must have already been appointed by,
8 or is pending appointment by, the Statewide Public
9 Guardianship Office to become an office of public guardian in
10 this state.
11 (2) Any person or organization that has been awarded a
12 grant must meet all of the following conditions to be eligible
13 to receive another grant:
14 (a) The applicant must meet or directly employ staff
15 that meet the minimum qualifications for a public guardian
16 under this chapter.
17 (b) The applicant must have been appointed by, or is
18 pending reappointment by, the Statewide Public Guardianship
19 Office to be an office of public guardian in this state.
20 (c) The applicant must have achieved a satisfactory
21 monitoring score during the applicant's most recent
22 evaluation.
23 Section 6. Section 744.715, Florida Statutes, is
24 created to read:
25 744.715 Grant application requirements; review
26 criteria; awards process.--Grant applications must be
27 submitted to the Statewide Public Guardianship Office for
28 review and approval.
29 (1) A grant application must contain:
30 (a) The specific amount of funds being requested.
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1 (b) The proposed annual budget for the office of
2 public guardian for which the applicant is applying on behalf
3 of, including all sources of funding, and a detailed report of
4 proposed expenditures, including administrative costs.
5 (c) The total number of wards the applicant intends to
6 serve during the grant period.
7 (d) Evidence that the applicant has:
8 1. Attempted to procure funds and has exhausted all
9 possible other sources of funding; or
10 2. Procured funds from local sources, but the total
11 amount of the funds collected or pledged is not sufficient to
12 meet the need for public guardianship in the geographic area
13 that the applicant intends to serve.
14 (e) An agreement or confirmation from a local funding
15 source, such as a county, municipality, or any other public or
16 private organization, that the local funding source will
17 contribute matching funds to the public guardianship program
18 totaling not less than $1 for every $1 of grant funds awarded.
19 For purposes of this section, an applicant may provide
20 evidence of agreements or confirmations from multiple local
21 funding sources showing that the local funding sources will
22 pool their contributed matching funds to the public
23 guardianship program for a combined total of not less than $1
24 for every $1 of grant funds awarded. In-kind contributions,
25 such as materials, commodities, office space, or other types
26 of facilities, personnel services, or other items as
27 determined by rule shall be considered by the office and may
28 be counted as part or all of the local matching funds.
29 (f) A detailed plan describing how the office of
30 public guardian for which the applicant is applying on behalf
31 of will be funded in future years.
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1 (g) Any other information determined by rule as
2 necessary to assist in evaluating grant applicants.
3 (2) If the Statewide Public Guardianship Office
4 determines that an applicant meets the requirements for an
5 award of grant funds, the office may award the applicant any
6 amount of grant funds the executive director deems
7 appropriate, if the amount awarded meets the requirements of
8 this act. The office may adopt a rule allocating the maximum
9 allowable amount of grant funds which may be expended on any
10 ward.
11 (3) A grant awardee must submit a new grant
12 application for each year of additional funding.
13 (4)(a) In the first year of the Joining Forces for
14 Public Guardianship program's existence, the Statewide Public
15 Guardianship Office shall give priority in awarding grant
16 funds to those entities that:
17 1. Are operating as appointed offices of public
18 guardians in this state;
19 2. Meet all of the requirements for being awarded a
20 grant under this act; and
21 3. Demonstrate a need for grant funds during the
22 current fiscal year due to a loss of local funding formerly
23 raised through court filing fees.
24 (b) In each fiscal year after the first year that
25 grant funds are distributed, the Statewide Public Guardianship
26 Office may give priority to awarding grant funds to those
27 entities that:
28 1. Meet all of the requirements of this act for being
29 awarded grant funds; and
30 2. Submit with their application an agreement or
31 confirmation from a local funding source, such as a county,
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1 municipality, or any other public or private organization,
2 that the local funding source will contribute matching funds
3 totaling an amount equal to or exceeding $2 for every $1 of
4 grant funds awarded by the office. An entity may submit with
5 its application agreements or confirmations from multiple
6 local funding sources showing that the local funding sources
7 will pool their contributed matching funds to the public
8 guardianship program for a combined total of not less than $2
9 for every $1 of grant funds awarded. In-kind contributions
10 allowable under this section shall be evaluated by the
11 Statewide Public Guardianship Office and may be counted as
12 part or all of the local matching funds.
13 Section 7. Subsection (25) of section 393.063, Florida
14 Statutes, is amended to read:
15 393.063 Definitions.--For the purposes of this
16 chapter:
17 (25) "Guardian advocate" means a person appointed by a
18 written order of the circuit court to represent a person with
19 developmental disabilities under in any proceedings brought
20 pursuant to s. 393.12, and excludes the use of the same term
21 as applied to a guardian advocate for mentally ill persons in
22 chapter 394.
23 Section 8. Paragraph (h) of subsection (2) of section
24 393.12, Florida Statutes, is amended to read:
25 393.12 Capacity; appointment of guardian advocate.--
26 (2) APPOINTMENT OF A GUARDIAN ADVOCATE.--
27 (h) Powers and duties of guardian advocate.--A
28 guardian advocate for a person with developmental disabilities
29 shall be a any person or corporation qualified to act as
30 guardian, with the same powers, duties, and responsibilities
31 required of a guardian under pursuant to chapter 744 or those
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1 defined by court order under pursuant to this section.
2 However, a guardian advocate may not be required to file an
3 annual accounting under s. 744.3678 if the court determines
4 that the person with developmental disabilities receives
5 income only from Social Security benefits and the guardian
6 advocate is the person's representative payee for the
7 benefits.
8 Section 9. Present subsections (10) through (19) of
9 section 744.102, Florida Statutes, are redesignated as
10 subsections (11) through (20), respectively, and a new
11 subsection (10) is added to that section to read:
12 744.102 Definitions.--As used in this chapter, the
13 term:
14 (10) "Guardian advocate" means a person appointed by a
15 written order of the court to represent a person with
16 developmental disabilities under s. 393.12. As used in this
17 chapter, the term does not apply to a guardian advocate
18 appointed for a person determined incompetent to consent to
19 treatment under s. 394.4598.
20 Section 10. Section 744.1083, Florida Statutes, is
21 amended to read:
22 744.1083 Professional guardian registration.--
23 (1) A professional guardian must register with the
24 Statewide Public Guardianship Office established in part IX of
25 this chapter.
26 (2) Annual registration shall be made on forms
27 furnished by the Statewide Public Guardianship Office and
28 accompanied by the applicable registration fee as determined
29 by rule. The Such fee may shall not exceed $100.
30 (3) Registration must include the following:
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1 (a) If the professional guardian is a natural person,
2 the name, address, date of birth, and employer identification
3 or social security number of the professional guardian.
4 (b) If the professional guardian is a partnership or
5 association, the name, address, and date of birth of every
6 member, and the employer identification number of the
7 partnership or association.
8 (c) If the professional guardian is a corporation, the
9 name, address, and employer identification number of the
10 corporation; the name, address, and date of birth of each of
11 its directors and officers; the name of its resident agent;
12 and the name, address, and date of birth of each person having
13 at least a 10-percent interest in the corporation.
14 (d) The name, address, date of birth, and employer
15 identification number, if applicable, of each person providing
16 guardian-delegated financial or personal guardianship services
17 for wards.
18 (e) Documentation that the bonding and educational
19 requirements of s. 744.1085 have been met, and that background
20 screening has been conducted pursuant to s. 744.3135.
21 Compliance with this section shall constitute compliance with
22 the attestation requirement of s. 435.04(5).
23 (f) Sufficient information to distinguish a guardian
24 providing guardianship services as a public guardian,
25 individually, through partnership, corporation, or any other
26 business organization.
27 (4) Prior to registering a professional guardian, the
28 Statewide Public Guardianship Office must receive and review
29 copies of the credit and criminal investigations conducted
30 under s. 744.3135. The credit and criminal investigations must
31 have been completed within the previous 2 years.
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1 (5) The executive director of the office may deny
2 registration to a professional guardian if the executive
3 director determines that the guardian's proposed registration,
4 including the guardian's credit or criminal investigations,
5 indicates that registering the professional guardian would
6 violate any provision of this chapter. If the executive
7 director denies registration to a professional guardian, the
8 Statewide Public Guardianship Office must send written
9 notification of the denial to the chief judge of each judicial
10 circuit in which the guardian was serving on the day of the
11 office's decision to deny registration.
12 (6)(4) The Department of Elderly Affairs may adopt
13 rules necessary to administer this section.
14 (7)(5) A trust company, a state banking corporation or
15 state savings association authorized and qualified to exercise
16 fiduciary powers in this state, or a national banking
17 association or federal savings and loan association authorized
18 and qualified to exercise fiduciary powers in this state, may,
19 but is shall not be required to, register as a professional
20 guardian under this section. If a trust company, state banking
21 corporation, state savings association, national banking
22 association, or federal savings and loan association described
23 in this subsection elects to register as a professional
24 guardian under this subsection, the requirements of
25 subsections (3) and (4) do subsection (3) shall not apply and
26 the registration must shall include only the name, address,
27 and employer identification number of the registrant, the name
28 and address of its registered agent, if any, and the
29 documentation described in paragraph (3)(e).
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1 (8)(6) The Department of Elderly Affairs may contract
2 with the Florida Guardianship Foundation or other
3 not-for-profit entity to register professional guardians.
4 (9)(7) The department or its contractor shall ensure
5 that the clerks of the court and the chief judge of each
6 judicial circuit receive information about each registered
7 professional guardian.
8 (10)(8) A state college or university or an
9 independent college or university as described in pursuant to
10 s. 1009.98(3)(a), may, but is shall not be required to,
11 register as a professional guardian under this section. If a
12 state college or university or independent college or
13 university elects to register as a professional guardian under
14 this subsection, the requirements of subsection (3) do shall
15 not apply and the registration must shall include only the
16 name, address, and employer identification number of the
17 registrant.
18 Section 11. Section 744.3085, Florida Statutes, is
19 created to read:
20 744.3085 Guardian advocates.--A circuit court may
21 appoint a guardian advocate, without an adjudication of
22 incapacity, for a person with developmental disabilities if
23 the person lacks the capacity to do some, but not all, of the
24 tasks necessary to care for his or her person, property, or
25 estate, or if the person has voluntarily petitioned for the
26 appointment of a guardian advocate. Unless otherwise
27 specified, the proceeding shall be governed by the Florida
28 Probate Rules. In accordance with the legislative intent of
29 this chapter, courts are encouraged to consider appointing a
30 guardian advocate, when appropriate, as a less restrictive
31 form of guardianship.
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1 Section 12. Section 744.3135, Florida Statutes, as
2 amended by section 114 of chapter 2003-402, Laws of Florida,
3 is amended to read:
4 744.3135 Credit and criminal investigation.--The court
5 may require a nonprofessional guardian and shall require a
6 professional or public guardian, and all employees of a
7 professional guardian who have a fiduciary responsibility to a
8 ward, to submit, at their own expense, to an investigation of
9 the guardian's credit history and to undergo level 2
10 background screening as required under s. 435.04. The clerk of
11 the court shall obtain fingerprint cards from the Federal
12 Bureau of Investigation and make them available to guardians.
13 Any guardian who is so required shall have his or her
14 fingerprints taken and forward the proper fingerprint card
15 along with the necessary fee to the Florida Department of Law
16 Enforcement for processing. The professional guardian shall
17 pay to the clerk of the court a fee of up to $7.50 for
18 handling and processing professional guardian files. The
19 results of the fingerprint checks shall be forwarded to the
20 clerk of court who shall maintain the results in a guardian
21 file and shall make the results available to the court. If
22 credit or criminal investigations are required, the court must
23 consider the results of the investigations before in
24 appointing a guardian. Professional guardians and all
25 employees of a professional guardian who have a fiduciary
26 responsibility to a ward, so appointed, must resubmit, at
27 their own expense, to an investigation of credit history, and
28 undergo level 1 background screening as required under s.
29 435.03, at least every 2 years after the date of their
30 appointment. At any time, the court may require guardians or
31 their employees to submit to an investigation of credit
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1 history and undergo level 1 background screening as required
2 under s. 435.03. The court must consider the results of these
3 investigations in reappointing a guardian.
4 (1) Upon receiving the results of a credit or criminal
5 investigation of any public or professional guardian, the
6 clerk of the court shall forward copies of the results to the
7 Statewide Public Guardianship Office in order that the results
8 may be maintained in the guardian's registration file.
9 (2) This section does shall not apply to a
10 professional guardian, or to the employees of a professional
11 guardian, which that is a trust company, a state banking
12 corporation or state savings association authorized and
13 qualified to exercise fiduciary powers in this state, or a
14 national banking association or federal savings and loan
15 association authorized and qualified to exercise fiduciary
16 powers in this state.
17 Section 13. Subsection (5) is added to section
18 744.3678, Florida Statutes, as amended by section 116 of
19 chapter 2003-402, Laws of Florida, to read:
20 744.3678 Annual accounting.--
21 (5) This section does not apply if the court
22 determines that the ward receives income only from Social
23 Security benefits and the guardian is the ward's
24 representative payee for the benefits.
25 Section 14. Effective upon this act becoming a law,
26 section 744.7082, Florida Statutes, is amended to read:
27 (Substantial rewording of section. See
28 s. 744.7082, F.S., for present text.)
29 744.7082 Direct-support organization; definition; use
30 of property; board of directors; audit; dissolution.--
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1 (1) DEFINITION.--As used in this section, the term
2 "direct-support organization" means an organization whose sole
3 purpose is to support the Statewide Public Guardianship Office
4 and is:
5 (a) A not-for-profit corporation incorporated under
6 chapter 617 and approved by the Department of State;
7 (b) Organized and operated to conduct programs and
8 activities; to raise funds; to request and receive grants,
9 gifts, and bequests of moneys; to acquire, receive, hold,
10 invest, and administer, in its own name, securities, funds,
11 objects of value, or other property, real or personal; and to
12 make expenditures to or for the direct or indirect benefit of
13 the Statewide Public Guardianship Office; and
14 (c) Determined by the Statewide Public Guardianship
15 Office to be consistent with the goals of the office, in the
16 best interests of the state, and in accordance with the
17 adopted goals and mission of the Department of Elderly Affairs
18 and the Statewide Public Guardianship Office.
19 (2) CONTRACT.--The direct-support organization shall
20 operate under a written contract with the Statewide Public
21 Guardianship Office. The written contract must provide for:
22 (a) Certification by the Statewide Public Guardianship
23 Office that the direct-support organization is complying with
24 the terms of the contract and is doing so consistent with the
25 goals and purposes of the office and in the best interests of
26 the state. This certification must be made annually and
27 reported in the official minutes of a meeting of the
28 direct-support organization.
29 (b) The reversion of moneys and property held in trust
30 by the direct-support organization:
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1 1. To the Statewide Public Guardianship Office if the
2 direct-support organization is no longer approved to operate
3 for the office;
4 2. To the Statewide Public Guardianship Office if the
5 direct-support organization ceases to exist;
6 3. To the Department of Elderly Affairs if the
7 Statewide Public Guardianship Office ceases to exist; or
8 4. To the state if the Department of Elderly Affairs
9 ceases to exist.
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11 The fiscal year of the direct-support organization shall begin
12 on July 1 of each year and end on June 30 of the following
13 year.
14 (c) The disclosure of the material provisions of the
15 contract, and the distinction between the Statewide Public
16 Guardianship Office and the direct-support organization, to
17 donors of gifts, contributions, or bequests, including such
18 disclosure on all promotional and fundraising publications.
19 (3) BOARD OF DIRECTORS.--The Secretary of Elderly
20 Affairs shall appoint a board of directors for the
21 direct-support organization from a list of nominees submitted
22 by the executive director of the Statewide Public Guardianship
23 Office.
24 (4) USE OF PROPERTY.--The Department of Elderly
25 Affairs may permit, without charge, appropriate use of fixed
26 property and facilities of the department or the Statewide
27 Public Guardianship Office by the direct-support organization.
28 The department may prescribe any condition with which the
29 direct-support organization must comply in order to use fixed
30 property or facilities of the department or the Statewide
31 Public Guardianship Office.
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1 (5) MONEYS.--Any moneys may be held in a separate
2 depository account in the name of the direct-support
3 organization and subject to the provisions of the written
4 contract with the Statewide Public Guardianship Office.
5 Expenditures of the direct-support organization shall be
6 expressly used to support the Statewide Public Guardianship
7 Office. The expenditures of the direct-support organization
8 may not be used for the purpose of lobbying as defined in s.
9 11.045.
10 (6) AUDIT.--The direct-support organization shall
11 provide for an annual financial audit in accordance with s.
12 215.981.
13 (7) DISSOLUTION.--After July 1, 2004, any
14 not-for-profit corporation incorporated under chapter 617 that
15 is determined by a circuit court to be representing itself as
16 a direct-support organization created under this section, but
17 that does not have a written contract with the Statewide
18 Public Guardianship Office in compliance with this section, is
19 considered to meet the grounds for a judicial dissolution
20 described in s. 617.1430(1)(a). The Statewide Public
21 Guardianship Office shall be the recipient for all assets held
22 by the dissolved corporation which accrued during the period
23 that the dissolved corporation represented itself as a
24 direct-support organization created under this section.
25 Section 15. Paragraph (c) of subsection (8) of section
26 121.091, Florida Statutes, is amended to read:
27 121.091 Benefits payable under the system.--Benefits
28 may not be paid under this section unless the member has
29 terminated employment as provided in s. 121.021(39)(a) or
30 begun participation in the Deferred Retirement Option Program
31 as provided in subsection (13), and a proper application has
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1 been filed in the manner prescribed by the department. The
2 department may cancel an application for retirement benefits
3 when the member or beneficiary fails to timely provide the
4 information and documents required by this chapter and the
5 department's rules. The department shall adopt rules
6 establishing procedures for application for retirement
7 benefits and for the cancellation of such application when the
8 required information or documents are not received.
9 (8) DESIGNATION OF BENEFICIARIES.--
10 (c) Notwithstanding the member's designation of
11 benefits to be paid through a trust to a beneficiary that is a
12 natural person as provided in s. 121.021(46), and
13 notwithstanding the provisions of the trust, benefits shall be
14 paid directly to the beneficiary if such person is no longer a
15 minor or incapacitated as defined in s. 744.102(11) and (12)
16 s. 744.102(10) and (11).
17 Section 16. Subsection (1) and paragraphs (b), (d),
18 and (f) of subsection (4) of section 709.08, Florida Statutes,
19 are amended to read:
20 709.08 Durable power of attorney.--
21 (1) CREATION OF DURABLE POWER OF ATTORNEY.--A durable
22 power of attorney is a written power of attorney by which a
23 principal designates another as the principal's attorney in
24 fact. The durable power of attorney must be in writing, must
25 be executed with the same formalities required for the
26 conveyance of real property by Florida law, and must contain
27 the words: "This durable power of attorney is not affected by
28 subsequent incapacity of the principal except as provided in
29 s. 709.08, Florida Statutes"; or similar words that show the
30 principal's intent that the authority conferred is exercisable
31 notwithstanding the principal's subsequent incapacity, except
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1 as otherwise provided by this section. The durable power of
2 attorney is exercisable as of the date of execution; however,
3 if the durable power of attorney is conditioned upon the
4 principal's lack of capacity to manage property as defined in
5 s. 744.102(11)(a) s. 744.102(10)(a), the durable power of
6 attorney is exercisable upon the delivery of affidavits in
7 paragraphs (4)(c) and (d) to the third party.
8 (4) PROTECTION WITHOUT NOTICE; GOOD FAITH ACTS;
9 AFFIDAVITS.--
10 (b) Any third party may rely upon the authority
11 granted in a durable power of attorney that is conditioned on
12 the principal's lack of capacity to manage property as defined
13 in s. 744.102(11)(a) s. 744.102(10)(a) only after receiving
14 the affidavits provided in paragraphs (c) and (d), and such
15 reliance shall end when the third party has received notice as
16 provided in subsection (5).
17 (d) A determination that a principal lacks the
18 capacity to manage property as defined in s. 744.102(11)(a) s.
19 744.102(10)(a) must be made and evidenced by the affidavit of
20 a physician licensed to practice medicine pursuant to chapters
21 458 and 459 as of the date of the affidavit. A judicial
22 determination that the principal lacks the capacity to manage
23 property pursuant to chapter 744 is not required prior to the
24 determination by the physician and the execution of the
25 affidavit. For purposes of this section, the physician
26 executing the affidavit must be the primary physician who has
27 responsibility for the treatment and care of the principal.
28 The affidavit executed by a physician must state where the
29 physician is licensed to practice medicine, that the physician
30 is the primary physician who has responsibility for the
31 treatment and care of the principal, and that the physician
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1 believes that the principal lacks the capacity to manage
2 property as defined in s. 744.102(11)(a) s. 744.102(10)(a).
3 The affidavit may, but need not, be in the following form:
4
5 STATE OF............
6 COUNTY OF............
7
8 Before me, the undersigned authority, personally
9 appeared ...(name of physician)..., Affiant, who swore or
10 affirmed that:
11 1. Affiant is a physician licensed to practice
12 medicine in ...(name of state, territory, or foreign
13 country)....
14 2. Affiant is the primary physician who has
15 responsibility for the treatment and care of ...(principal's
16 name)....
17 3. To the best of Affiant's knowledge after reasonable
18 inquiry, Affiant believes that the principal lacks the
19 capacity to manage property, including taking those actions
20 necessary to obtain, administer, and dispose of real and
21 personal property, intangible property, business property,
22 benefits, and income.
23
24 ................
25 ...(Affiant)...
26
27 Sworn to (or affirmed) and subscribed before me this
28 ...(day of)... ...(month)..., ...(year)..., by ...(name of
29 person making statement)...
30
31 ...(Signature of Notary Public-State of Florida)...
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2 ...(Print, Type, or Stamp Commissioned Name of Notary
3 Public)...
4
5 Personally Known OR Produced Identification
6 ...(Type of Identification Produced)...
7
8 (f) A third party may not rely on the authority
9 granted in a durable power of attorney conditioned on the
10 principal's lack of capacity to manage property as defined in
11 s. 744.102(11)(a) s. 744.102(10)(a) when any affidavit
12 presented has been executed more than 6 months prior to the
13 first presentation of the durable power of attorney to the
14 third party.
15 Section 17. Subsection (3) of 744.1085, Florida
16 Statutes, is amended to read:
17 744.1085 Regulation of professional guardians;
18 application; bond required; educational requirements.--
19 (3) Each professional guardian defined in s.
20 744.102(16) s. 744.102(15) and public guardian must receive a
21 minimum of 40 hours of instruction and training. Each
22 professional guardian must receive a minimum of 16 hours of
23 continuing education every 2 calendar years after the year in
24 which the initial 40-hour educational requirement is met. The
25 instruction and education must be completed through a course
26 approved or offered by the Statewide Public Guardianship
27 Office. The expenses incurred to satisfy the educational
28 requirements prescribed in this section may not be paid with
29 the assets of any ward. This subsection does not apply to any
30 attorney who is licensed to practice law in this state.
31
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1 Section 18. Except as otherwise expressly provided in
2 this act, this act shall take effect July 1, 2004.
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