Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. SB 1958
Barcode 342746
CHAMBER ACTION
Senate House
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11 The Committee on Judiciary (Aronberg) recommended the
12 following amendment:
13
14 Senate Amendment (with title amendment)
15 Delete everything after the enacting clause
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17 and insert:
18 Section 1. Section 744.102, Florida Statutes, is
19 amended to read:
20 744.102 Definitions.--As used in this chapter, the
21 term:
22 (1) "Attorney for the alleged incapacitated person"
23 means an attorney who represents the alleged incapacitated
24 person. The Such attorney shall represent the expressed wishes
25 of the alleged incapacitated person to the extent it is
26 consistent with the rules regulating The Florida Bar.
27 (2) "Audit" means a systematic review of financial
28 documents with adherence to generally accepted auditing
29 standards.
30 (3)(2) "Clerk" means the clerk or deputy clerk of the
31 court.
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1 (4)(3) "Corporate guardian" means a corporation
2 authorized to exercise fiduciary or guardianship powers in
3 this state and includes a nonprofit corporate guardian.
4 (5)(4) "Court" means the circuit court.
5 (6)(5) "Court monitor" means a person appointed by the
6 court under pursuant to s. 744.107 to provide the court with
7 information concerning a ward.
8 (7)(6) "Estate" means the property of a ward subject
9 to administration.
10 (8)(7) "Foreign guardian" means a guardian appointed
11 in another state or country.
12 (9)(8) "Guardian" means a person who has been
13 appointed by the court to act on behalf of a ward's person or
14 property, or both.
15 (a) "Limited guardian" means a guardian who has been
16 appointed by the court to exercise the legal rights and powers
17 specifically designated by court order entered after the court
18 has found that the ward lacks the capacity to do some, but not
19 all, of the tasks necessary to care for his or her person or
20 property, or after the person has voluntarily petitioned for
21 appointment of a limited guardian.
22 (b) "Plenary guardian" means a person who has been
23 appointed by the court to exercise all delegable legal rights
24 and powers of the ward after the court has found that the ward
25 lacks the capacity to perform all of the tasks necessary to
26 care for his or her person or property.
27 (10)(9) "Guardian ad litem" means a person who is
28 appointed by the court having jurisdiction of the guardianship
29 or a court in which a particular legal matter is pending to
30 represent a ward in that proceeding.
31 (11)(10) "Guardian advocate" means a person appointed
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1 by a written order of the court to represent a person with
2 developmental disabilities under s. 393.12. As used in this
3 chapter, the term does not apply to a guardian advocate
4 appointed for a person determined incompetent to consent to
5 treatment under s. 394.4598.
6 (12)(11) "Incapacitated person" means a person who has
7 been judicially determined to lack the capacity to manage at
8 least some of the property or to meet at least some of the
9 essential health and safety requirements of the such person.
10 (a) To "manage property" means to take those actions
11 necessary to obtain, administer, and dispose of real and
12 personal property, intangible property, business property,
13 benefits, and income.
14 (b) To "meet essential requirements for health or
15 safety" means to take those actions necessary to provide the
16 health care, food, shelter, clothing, personal hygiene, or
17 other care without which serious and imminent physical injury
18 or illness is more likely than not to occur.
19 (13)(12) "Minor" means a person under 18 years of age
20 whose disabilities have not been removed by marriage or
21 otherwise.
22 (14)(13) "Next of kin" means those persons who would
23 be heirs at law of the ward or alleged incapacitated person if
24 the such person were deceased and includes the lineal
25 descendants of the such ward or alleged incapacitated person.
26 (15)(14) "Nonprofit corporate guardian" means a
27 nonprofit corporation organized for religious or charitable
28 purposes and existing under the laws of this state.
29 (16)(15) "Preneed guardian" means a person named in a
30 written declaration to serve as guardian in the event of the
31 incapacity of the declarant as provided in s. 744.3045.
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1 (17)(16) "Professional guardian" means any guardian
2 who receives or has at any time received compensation for
3 services rendered services to three or more than two wards as
4 their guardian. A person serving as a guardian for two or more
5 relatives as defined in s. 744.309(2) is not considered a
6 professional guardian. A public guardian shall be considered a
7 professional guardian for purposes of regulation, education,
8 and registration.
9 (18)(17) "Property" means both real and personal
10 property or any interest in it and anything that may be the
11 subject of ownership.
12 (19)(18) "Standby guardian" means a person empowered
13 to assume the duties of guardianship upon the death or
14 adjudication of incapacity of the last surviving natural or
15 appointed guardian.
16 (20) "Surrogate guardian" means a guardian designated
17 according to s. 744.442.
18 (21)(19) "Totally incapacitated" means incapable of
19 exercising any of the rights enumerated in s. 744.3215(2) and
20 (3).
21 (22)(20) "Ward" means a person for whom a guardian has
22 been appointed.
23 Section 2. Subsections (5) and (10) of section
24 744.1083, Florida Statutes, are amended to read:
25 744.1083 Professional guardian registration.--
26 (5) The executive director of the office may deny
27 registration to a professional guardian if the executive
28 director determines that the guardian's proposed registration,
29 including the guardian's credit or criminal investigations,
30 indicates that registering the professional guardian would
31 violate any provision of this chapter. If a guardian who is
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1 currently registered with the office violates a provision of
2 this chapter, the executive director of the office may suspend
3 or revoke the guardian's registration. If the executive
4 director denies registration to a professional guardian or
5 suspends or revokes a professional guardian's registration,
6 the Statewide Public Guardianship Office must send written
7 notification of the denial, supervision, or revocation to the
8 chief judge of each judicial circuit in which the guardian was
9 serving on the day of the office's decision to deny, suspend,
10 or revoke the registration.
11 (10) A state college or university or an independent
12 college or university described in s. 1009.98(3)(a), may, but
13 is not required to, register as a professional guardian under
14 this section. If a state college or university or independent
15 college or university elects to register as a professional
16 guardian under this subsection, the requirements of
17 subsections (3) and (4) subsection (3) do not apply and the
18 registration must include only the name, address, and employer
19 identification number of the registrant.
20 Section 3. Section 744.301, Florida Statutes, is
21 amended to read:
22 744.301 Natural guardians.--
23 (1) The mother and father jointly are natural
24 guardians of their own children and of their adopted children,
25 during minority. If one parent dies, the surviving parent
26 remains the sole natural guardian even if he or she the
27 natural guardianship shall pass to the surviving parent, and
28 the right shall continue even though the surviving parent
29 remarries. If the marriage between the parents is dissolved,
30 the natural guardianship belongs shall belong to the parent to
31 whom the custody of the child is awarded. If the parents are
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1 given joint custody, then both shall continue as natural
2 guardians. If the marriage is dissolved and neither the
3 father nor the mother is given custody of the child, neither
4 shall act as natural guardian of the child. The mother of a
5 child born out of wedlock is the natural guardian of the child
6 and is entitled to primary residential care and custody of the
7 child unless a court of competent jurisdiction enters an order
8 stating otherwise.
9 (2) The Natural guardian or guardians are authorized,
10 on behalf of any of their minor children, to settle and
11 consummate a settlement of any claim or cause of action
12 accruing to any of their minor children for damages to the
13 person or property of any of said minor children and to
14 collect, receive, and manage, and dispose of the proceeds of
15 any such settlement and of any other real or personal property
16 distributed from an estate or trust or proceeds from a life
17 insurance policy to, or otherwise accruing to the benefit of,
18 the child during minority, when the amounts received, in the
19 aggregate, do amount involved in any instance does not exceed
20 $15,000, without appointment, authority, or bond.
21 (3) All instruments executed by a natural guardian for
22 the benefit of the ward under the powers specified provided
23 for in subsection (2) shall be binding on the ward. The
24 natural guardian may not, without a court order, use the
25 property of the ward for the guardian's benefit or to satisfy
26 the guardian's support obligation to the ward.
27 (4)(a) In any case where a minor has a claim for
28 personal injury, property damage, or wrongful death in which
29 the gross settlement for the claim of the minor exceeds
30 $15,000, the court may, prior to the approval of the
31 settlement of the minor's claim, appoint a guardian ad litem
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1 to represent the minor's interests. In any case in which the
2 gross settlement involving a minor equals or exceeds $25,000,
3 the court shall, prior to the approval of the settlement of
4 the minor's claim, appoint a guardian ad litem to represent
5 the minor's interests. The appointment of the guardian ad
6 litem must be without the necessity of bond or a notice. The
7 duty of the guardian ad litem is to protect the minor's
8 interests. The procedure for carrying out that duty is as
9 prescribed in the Florida Probate Rules. If a legal guardian
10 of the minor has previously been appointed and has no
11 potential adverse interest to the minor, the court may not
12 appoint a guardian ad litem to represent the minor's
13 interests, unless the court determines that the appointment is
14 otherwise necessary.
15 (b) Unless waived, the court shall award reasonable
16 fees and costs to the guardian ad litem to be paid out of the
17 gross proceeds of the settlement.
18 Section 4. Section 744.3025, Florida Statutes, is
19 created to read:
20 744.3025 Claims of minors.--
21 (1)(a) The court may appoint a guardian ad litem to
22 represent the minor's interest, before approving a settlement
23 of the minor's portion of the claim, in any case in which a
24 minor has a claim for personal injury, property damage,
25 wrongful death, or other cause of action in which the gross
26 settlement of the claim exceeds $15,000.
27 (b) The court shall appoint a guardian ad litem to
28 represent the minor's interest before approving a settlement
29 of the minor's claim, in any case in which the gross
30 settlement involving a minor equals or exceeds $50,000.
31 (c) The appointment of the guardian ad litem must be
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1 without the necessity of bond or notice.
2 (d) The duty of the guardian ad litem is to protect
3 the minor's interests as described in the Florida Probate
4 Rules.
5 (e) A court need not appoint a guardian ad litem for
6 the child if a guardian of the minor has previously been
7 appointed and that guardian has no potential adverse interest
8 to the minor. A court may appoint a guardian ad litem if the
9 court believes a guardian ad litem is necessary to protect the
10 interests of the minor.
11 (2) Unless waived, the court shall award reasonable
12 fees and costs to the guardian ad litem to be paid out of the
13 gross proceeds of the settlement.
14 Section 5. Subsection (3) of section 744.3031, Florida
15 Statutes, is amended, and subsection (8) is added to that
16 section, to read:
17 744.3031 Emergency temporary guardianship.--
18 (3) The authority of an emergency temporary guardian
19 expires 90 60 days after the date of appointment or when a
20 guardian is appointed, whichever occurs first. The authority
21 of the emergency temporary guardian may be extended for an
22 additional 90 30 days upon a showing that the emergency
23 conditions still exist.
24 (8)(a) An emergency temporary guardian shall file a
25 final report no later than 30 days after the expiration of the
26 emergency temporary guardianship.
27 (b) An emergency temporary guardianship is a guardian
28 for the property. The final report must consist of a verified
29 inventory of the property, as provided in s. 744.365, as of
30 the date the letters of emergency temporary guardianship were
31 issued, a final accounting that gives a full and correct
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1 account of the receipts and disbursements of all the property
2 of the ward over which the guardian had control, and a
3 statement of the property of the ward on hand at the end of
4 the emergency temporary guardianship. If the emergency
5 temporary guardian becomes the successor guardian of the
6 property, the final report must satisfy the requirements of
7 the initial guardianship report for the guardian of the
8 property as provided in s. 744.362.
9 (c) If the emergency temporary guardian is a guardian
10 of the person, the final report must summarize the activities
11 of the temporary guardian with regard to residential
12 placement, medical condition, mental health and rehabilitative
13 services, and the social condition of the ward to the extent
14 of the authority granted to the temporary guardian in the
15 letters of guardianship. If the emergency temporary guardian
16 becomes the successor guardian of the person, the report must
17 satisfy the requirements of the initial report for a guardian
18 of the person as stated in s. 744.362.
19 (d) A copy of the final report of the emergency
20 temporary guardianship shall be served on the successor
21 guardian and the ward.
22 Section 6. Section 744.304, Florida Statutes, is
23 amended to read:
24 744.304 Standby guardianship.--
25 (1) Upon a petition by the natural guardians or a
26 guardian appointed under s. 744.3021, the court may appoint a
27 standby guardian of the person or property of a minor or
28 consent of both parents, natural or adoptive, if living, or of
29 the surviving parent, a standby guardian of the person or
30 property of a minor may be appointed by the court. The court
31 may also appoint an alternate to the guardian to act if the
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1 standby guardian does not serve or ceases to serve after
2 appointment. Notice of a hearing on the petition must be
3 served on the parents, natural or adoptive, and on any
4 guardian currently serving unless the notice is waived in
5 writing by them or waived by the court for good cause shown
6 shall renounce, die, or become incapacitated after the death
7 of the last surviving parent of the minor.
8 (2) Upon petition of a currently serving guardian, a
9 standby guardian of the person or property of an incapacitated
10 person may be appointed by the court. Notice of the hearing
11 shall be served on the ward's next of kin.
12 (3) The standby guardian or alternate shall be
13 empowered to assume the duties of guardianship his or her
14 office immediately on the death, removal, or resignation of
15 the guardian of a minor, or on the death or adjudication of
16 incapacity of the last surviving natural guardian or adoptive
17 parent of a minor, or upon the death, removal, or resignation
18 of the guardian for an adult. The; however, such a guardian of
19 the ward's property may not be empowered to deal with the
20 ward's property, other than to safeguard it, before prior to
21 issuance of letters of guardianship. If the ward
22 incapacitated person is over the age of 18 years, the court
23 shall conduct a hearing as provided in s. 744.331 before
24 confirming the appointment of the standby guardian, unless the
25 ward has previously been found to be incapacitated.
26 (4) Within 20 days after assumption of duties as
27 guardian, a standby guardian shall petition for confirmation
28 of appointment. If the court finds the standby guardian to be
29 qualified to serve as guardian under pursuant to ss. 744.309
30 and 744.312, appointment of the guardian must be confirmed.
31 Each guardian so confirmed shall file an oath in accordance
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1 with s. 744.347, and shall file a bond and submit to a credit
2 and criminal investigation as set forth in s. 744.3135, if
3 required. Letters of guardianship must then be issued in the
4 manner provided in s. 744.345.
5 (5) After the assumption of duties by a standby
6 guardian, the court shall have jurisdiction over the guardian
7 and the ward.
8 Section 7. Section 744.3115, Florida Statutes, is
9 amended to read:
10 744.3115 Advance directives for health care.--In each
11 proceeding in which a guardian is appointed under this
12 chapter, the court shall determine whether the ward, prior to
13 incapacity, has executed any valid advance directive under
14 pursuant to chapter 765. If any such advance directive exists,
15 the court shall specify in its order and letters of
16 guardianship what authority, if any, the guardian shall
17 exercise over the surrogate. Pursuant to the grounds listed in
18 s. 765.105, the court, upon its own motion, may, with notice
19 to the surrogate and any other appropriate parties, modify or
20 revoke the authority of the surrogate to make health care
21 decisions for the ward. For purposes of this section, the term
22 "health care decision" has the same meaning as in s. 765.101.
23 Section 8. Section 744.3135, Florida Statutes, is
24 amended to read:
25 744.3135 Credit and criminal investigation.--
26 (1) The court may require a nonprofessional guardian
27 and shall require a professional or public guardian, and all
28 employees of a professional guardian who have a fiduciary
29 responsibility to a ward, to submit, at their own expense, to
30 an investigation of the guardian's credit history and to
31 undergo level 2 background screening as required under s.
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1 435.04. If a credit or criminal investigation is required, the
2 court must consider the results of any investigation before
3 appointing a guardian. At any time, the court may require a
4 guardian or its employees to submit to an investigation of the
5 person's credit history and complete a level 1 background
6 screening as set forth in s. 435.03. The court shall consider
7 the results of any investigation when reappointing a guardian.
8 The clerk of the court shall maintain a file on each guardian
9 appointed by the court and retain documentation of the result
10 of any investigation conducted under this section in the file.
11 A professional guardian must pay the clerk of the court a fee
12 of up to $7.50 for handling and processing professional
13 guardian files.
14 (2) The court and the Statewide Public Guardianship
15 Office shall accept the satisfactory completion of a criminal
16 background investigation by any method described in this
17 subsection. A guardian satisfies the requirements of this
18 section by undergoing:
19 (a) An inkless electronic fingerprint criminal
20 background investigation. A guardian may use any inkless
21 electronic fingerprinting equipment used for criminal
22 background investigations of public employees. The guardian
23 shall pay the actual costs incurred by the Federal Bureau of
24 Investigation or the Department of Law Enforcement for the
25 criminal background investigation. The agency that operates
26 the equipment used by the guardian may charge the guardian an
27 additional fee, not to exceed $10, for the use of the
28 equipment. The agency completing the investigation must
29 immediately send the results of the criminal background
30 investigation to the clerk of the court and the Statewide
31 Public Guardianship Office. The clerk of the court shall
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1 maintain the results in the guardian's file and shall make the
2 results available to the court; or
3 (b) A criminal background investigation using a
4 fingerprint card. The clerk of the court shall obtain
5 fingerprint cards from the Federal Bureau of Investigation and
6 make them available to guardians. Any guardian who is so
7 required shall have his or her fingerprints taken and forward
8 the proper fingerprint card along with the necessary fee to
9 the Florida Department of Law Enforcement for processing. The
10 professional guardian shall pay to the clerk of the court a
11 fee of up to $7.50 for handling and processing professional
12 guardian files. The results of the fingerprint card background
13 investigations checks shall be forwarded to the clerk of the
14 court who shall maintain the results in the guardian's a
15 guardian file and shall make the results available to the
16 court and the Statewide Public Guardianship Office. If credit
17 or criminal investigations are required, the court must
18 consider the results of the investigations before appointing a
19 guardian. Professional guardians and all employees of a
20 professional guardian who have a fiduciary responsibility to a
21 ward, so appointed, must resubmit, at their own expense, to an
22 investigation of credit history, and undergo level 1
23 background screening as required under s. 435.03, at least
24 every 2 years after the date of their appointment. At any
25 time, the court may require guardians or their employees to
26 submit to an investigation of credit history and undergo level
27 1 background screening as required under s. 435.03. The court
28 must consider the results of these investigations in
29 reappointing a guardian.
30 (3)(a) A professional guardian, and each employee of a
31 professional guardian who has a fiduciary responsibility to a
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1 ward, must complete, at his or her own expense, a level 2
2 background screening as set forth in s. 435.04, before and at
3 least once every 5 years after the date the guardian is
4 appointed. A professional guardian, and each employee of a
5 professional guardian who has a fiduciary responsibility to a
6 ward, must complete, at his or her own expense, a level 1
7 background screening as set forth in s. 435.03, at least once
8 every 2 years after the date the guardian is appointed.
9 However, a person is not required to resubmit fingerprints for
10 a criminal background investigation if he or she has been
11 screened using inkless electronic fingerprinting equipment
12 that is capable of notifying the clerk of the court of any
13 crime charged against the person in the State of Florida or
14 elsewhere as appropriate.
15 (b) Effective December 15, 2005, all fingerprints
16 electronically submitted to the Department of Law Enforcement
17 under this section shall be retained by the Department of Law
18 Enforcement in a manner provided by rule and entered in the
19 statewide automated fingerprint identification system
20 authorized by s. 943.05(2)(b). The fingerprints shall
21 thereafter be available for all purposes and uses authorized
22 for arrest fingerprint cards entered in the statewide
23 automated fingerprint identification system under s. 943.051.
24 (c) Effective December 15, 2005, the Department of Law
25 Enforcement shall search all arrest fingerprint cards received
26 under s. 943.051 against the fingerprints retained in the
27 statewide automated fingerprint identification system under
28 paragraph (b). Any arrest record that is identified with the
29 fingerprints of a person described in this paragraph must be
30 reported as soon as possible to the clerk of court. The clerk
31 of court must forward any arrest record received for a
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1 professional guardian to the Statewide Public Guardianship
2 Office within 5 days. Each guardian who elects to undergo an
3 inkless electronic background investigation shall participate
4 in this search process by paying an annual fee to the clerk of
5 court and by informing the clerk of court of any change in the
6 status of his or her guardianship appointment. The amount of
7 the annual fee to be imposed upon each clerk of court for
8 performing these searches and the procedures for the retention
9 of guardian fingerprints and the dissemination of search
10 results shall be established by rule of the Department of Law
11 Enforcement. The fee may be borne by the clerk of court or the
12 guardian, but may not exceed $10.
13 (4)(a) A professional guardian, and each employee of a
14 professional guardian who has a fiduciary responsibility to a
15 ward, must complete, at the person's own expense, an
16 investigation of the credit history of the person before and
17 at least once every 2 years after the date of the guardian's
18 appointment.
19 (b) The Statewide Public Guardianship Office shall
20 adopt a rule detailing the acceptable methods for completing a
21 credit investigation under this section. If appropriate, the
22 Statewide Public Guardianship Office may administer credit
23 investigations. If the office chooses to administer the credit
24 investigation, the office may adopt a rule setting a fee, not
25 to exceed $25, to reimburse the costs associated with the
26 administration of a credit investigation.
27 (5) The Statewide Public Guardianship Office may
28 inspect at any time the results of any credit or criminal
29 investigation of a public or professional guardian conducted
30 under this section. The office shall maintain copies of the
31 credit or criminal results in the guardian's registration
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1 file. If the results of a credit or criminal investigation of
2 a public or professional guardian have not been forwarded to
3 the Statewide Public Guardianship Office by the investigating
4 agency, the clerk of the court shall forward copies of the
5 results of the investigations to the office upon receiving
6 them.
7 (1) Upon receiving the results of a credit or criminal
8 investigation of any public or professional guardian, the
9 clerk of the court shall forward copies of the results to the
10 Statewide Public Guardianship Office in order that the results
11 may be maintained in the guardian's registration file.
12 (6)(2) The requirements of this section do does not
13 apply to a professional guardian, or to the employees of a
14 professional guardian, which is a trust company, a state
15 banking corporation or state savings association authorized
16 and qualified to exercise fiduciary powers in this state, or a
17 national banking association or federal savings and loan
18 association authorized and qualified to exercise fiduciary
19 powers in this state.
20 Section 9. Subsection (4) of section 744.3145, Florida
21 Statutes, is amended to read:
22 744.3145 Guardian education requirements.--
23 (4) Each person appointed by the court to be a
24 guardian must complete the required number of hours of
25 instruction and education within 4 months 1 year after his or
26 her appointment as guardian. The instruction and education
27 must be completed through a course approved by the chief judge
28 of the circuit court and taught by a court-approved
29 organization. Court-approved organizations may include, but
30 are not limited to, community or junior colleges, guardianship
31 organizations, and the local bar association or The Florida
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1 Bar.
2 Section 10. Paragraph (i) of subsection (1) and
3 subsection (2) of section 744.3215, Florida Statutes, are
4 amended to read:
5 744.3215 Rights of persons determined incapacitated.--
6 (1) A person who has been determined to be
7 incapacitated retains the right:
8 (i) To receive necessary services and rehabilitation
9 necessary to maximize the quality of life.
10 (2) Rights that may be removed from a person by an
11 order determining incapacity but not delegated to a guardian
12 include the right:
13 (a) To marry. If the right to enter into a contract
14 has been removed, the right to marry is subject to court
15 approval.
16 (b) To vote.
17 (c) To personally apply for government benefits.
18 (d) To have a driver's license.
19 (e) To travel.
20 (f) To seek or retain employment.
21 Section 11. Subsections (2), (3), and (7) of section
22 744.331, Florida Statutes, are amended to read:
23 744.331 Procedures to determine incapacity.--
24 (2) ATTORNEY FOR THE ALLEGED INCAPACITATED PERSON.--
25 (a) When a court appoints an attorney for an alleged
26 incapacitated person, the court must appoint an attorney who
27 is included in the attorney registry compiled by the circuit's
28 Article V indigent services committee. Appointments must be
29 made on a rotating basis, taking into consideration conflicts
30 arising under this chapter.
31 (b)(a) The court shall appoint an attorney for each
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1 person alleged to be incapacitated in all cases involving a
2 petition for adjudication of incapacity. The alleged
3 incapacitated person may substitute her or his own attorney
4 for the attorney appointed by the court, subject to court
5 approval.
6 (c)(b) Any attorney representing an alleged
7 incapacitated person may not serve as guardian of the alleged
8 incapacitated person or as counsel for the guardian of the
9 alleged incapacitated person or the petitioner.
10 (d) Effective January 1, 2006, an attorney seeking to
11 be appointed by a court for incapacity and guardianship
12 proceedings must have completed a minimum of 8 hours of
13 education in guardianship. A court may waive the initial
14 training requirement for an attorney who has served as a
15 court-appointed attorney in incapacity proceedings or as an
16 attorney of record for guardians for not less than 3 years.
17 (3) EXAMINING COMMITTEE.--
18 (a) Within 5 days after a petition for determination
19 of incapacity has been filed, the court shall appoint an
20 examining committee consisting of three members. One member
21 must be a psychiatrist or other physician. The remaining
22 members must be either a psychologist, gerontologist, another
23 psychiatrist, or other physician, a registered nurse, nurse
24 practitioner, licensed social worker, a person with an
25 advanced degree in gerontology from an accredited institution
26 of higher education, or other person who by knowledge, skill,
27 experience, training, or education may, in the court's
28 discretion, advise the court in the form of an expert opinion,
29 including a professional guardian. One of three members of the
30 committee must have knowledge of the type of incapacity
31 alleged in the petition. Unless good cause is shown, the
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1 attending or family physician may not be appointed to the
2 committee. If the attending or family physician is available
3 for consultation, the committee must consult with the
4 physician. Members of the examining committee may not be
5 related to or associated with one another, or with the
6 petitioner, with counsel for the petitioner or the proposed
7 guardian, or the person alleged to be totally or partially
8 incapacitated. A member may not be employed by any private or
9 governmental agency that has custody of, or furnishes,
10 services or subsidies, directly or indirectly, to the person
11 or the family of the person alleged to be incapacitated or for
12 whom a guardianship is sought. A petitioner may not serve as
13 a member of the examining committee. Members of the examining
14 committee must be able to communicate, either directly or
15 through an interpreter, in the language that the alleged
16 incapacitated person speaks or to communicate in a medium
17 understandable to the alleged incapacitated person if she or
18 he is able to communicate. The clerk of the court shall send
19 notice of the appointment to each person appointed no later
20 than 3 days after the court's appointment.
21 (b) A person who has been appointed to serve as a
22 member of an examining committee to examine an alleged
23 incapacitated person may not thereafter be appointed as a
24 guardian for the person who was the subject of the
25 examination.
26 (c) Each person appointed to an examining committee
27 must file an affidavit with the court stating that he or she
28 has completed the required courses or will do so no later than
29 4 months after his or her initial appointment. Each year, the
30 chief judge of the circuit must prepare a list of persons
31 qualified to be members of the examining committee.
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1 (d) A member of an examining committee must complete a
2 minimum of 4 hours of initial training. The person must
3 complete 2 hours of continuing education during each 2-year
4 period after the initial training. The initial training and
5 continuing education program must be developed under the
6 supervision of the Statewide Public Guardianship Office, in
7 consultation with the Florida Conference of Circuit Court
8 Judges, the Elder Law and Real Property, Probate and Trust Law
9 sections of The Florida Bar, the Florida State Guardianship
10 Association, and the Florida Guardianship Foundation. The
11 court may waive the initial training requirement for a person
12 who has served for not less than 5 years on examining
13 committees. If a person wishes to obtain his or her continuing
14 education on the Internet or by watching a video course, the
15 person must first obtain the approval of the chief judge
16 before taking an Internet or video course.
17 (e)(b) Each member of the examining committee shall
18 examine the person. Each The examining committee member must
19 shall determine the alleged incapacitated person's ability to
20 exercise those rights specified in s. 744.3215. In addition to
21 the examination, each the examining committee member must
22 shall have access to, and may consider, previous examinations
23 of the person, including, but not limited to, habilitation
24 plans, school records, and psychological and psychosocial
25 reports voluntarily offered for use by the alleged
26 incapacitated person. Each member of the examining committee
27 must shall submit a report within 15 days after appointment.
28 (f)(c) The examination of the alleged incapacitated
29 person must include a comprehensive examination, a report of
30 which shall be filed by the examining committee as part of its
31 written report. The comprehensive examination report should be
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1 an essential element, but not necessarily the only element,
2 used in making a capacity and guardianship decision. The
3 comprehensive examination must include, if indicated:
4 1. A physical examination;
5 2. A mental health examination; and
6 3. A functional assessment.
7
8 If any of these three aspects of the examination is not
9 indicated or cannot be accomplished for any reason, the
10 written report must explain the reasons for its omission.
11 (g)(d) The committee's written report must include:
12 1. To the extent possible, a diagnosis, prognosis, and
13 recommended course of treatment.
14 2. An evaluation of the alleged incapacitated person's
15 ability to retain her or his rights, including, without
16 limitation, the rights to marry; vote; contract; manage or
17 dispose of property; have a driver's license; determine her or
18 his residence; consent to medical treatment; and make
19 decisions affecting her or his social environment.
20 3. The results of the comprehensive examination and
21 the committee members' assessment of information provided by
22 the attending or family physician, if any.
23 4. A description of any matters with respect to which
24 the person lacks the capacity to exercise rights, the extent
25 of that incapacity, and the factual basis for the
26 determination that the person lacks that capacity.
27 5. The names of all persons present during the time
28 the committee member conducted his or her examination. If a
29 person other than the person who is the subject of the
30 examination supplies answers posed to the alleged
31 incapacitated person, the report must include the response and
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1 the name of the person supplying the answer.
2 6.5. The signature of each member of the committee and
3 the date and time each member conducted his or her
4 examination.
5 (h)(e) A copy of the report must be served on the
6 petitioner and on the attorney for the alleged incapacitated
7 person within 3 days after the report is filed and at least 5
8 days before the hearing on the petition.
9 (7) FEES.--
10 (a) The examining committee and any attorney appointed
11 under subsection (2) are entitled to reasonable fees to be
12 determined by the court.
13 (b) The fees awarded under paragraph (a) shall be paid
14 by the guardian from the property of the ward or, if the ward
15 is indigent, by the state. The state shall have a creditor's
16 claim against the guardianship property for any amounts paid
17 under this section. The state may file its claim within 90
18 days after the entry of an order awarding attorney ad litem
19 fees. If the state does not file its claim within the 90-day
20 period, the state is thereafter barred from asserting the
21 claim. Upon petition by the state for payment of the claim,
22 the court shall enter an order authorizing immediate payment
23 out of the property of the ward. The state shall keep a record
24 of the such payments.
25 (c) If the petition is dismissed, costs and attorney's
26 fees of the proceeding may be assessed against the petitioner
27 if the court finds the petition to have been filed in bad
28 faith.
29 Section 12. Present subsection (4) of section 744.341,
30 Florida Statutes, is redesignated as subsection (5) and
31 amended, and a new subsection (4) is added to that section, to
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1 read:
2 744.341 Voluntary guardianship.--
3 (4) A guardian must include in the annual report filed
4 with the court a certificate from a licensed physician who
5 examined the ward not more than 90 days before the annual
6 report is filed with the court. The certificate must certify
7 that the ward is competent to understand the nature of the
8 guardianship and of the ward's authority to delegate powers to
9 the voluntary guardian.
10 (5)(4) A voluntary guardianship may be terminated by
11 the ward by filing a notice with the court that the voluntary
12 guardianship is terminated. The notice must be accompanied by
13 a certificate from a licensed physician who has examined the
14 ward not more than 30 days before the ward filed the notice
15 with the court. The physician must certify that the ward is
16 competent to understand the implications of terminating the
17 guardianship. A copy of the notice and certificate must be
18 served on all interested persons.
19 Section 13. Subsection (9) is added to section
20 774.361, Florida Statutes, to read:
21 744.361 Powers and duties of guardian.--
22 (9) A professional guardian must ensure that each of
23 the guardian's wards is personally visited by the guardian or
24 one of the guardian's professional staff at least once each
25 calendar quarter. During the personal visit, the guardian or
26 the guardian's professional staff person shall assess:
27 (a) The ward's physical appearance and condition;
28 (b) The appropriateness of the ward's current living
29 situation; and
30 (c) The need for any additional services and the
31 necessity for continuation of existing services, taking into
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1 consideration all aspects of social, psychological,
2 educational, direct service, health, and personal care needs.
3
4 This subsection does not apply to a professional guardian who
5 has been appointed only as guardian of the property.
6 Section 14. Subsection (2) of section 744.365, Florida
7 Statutes, is amended to read:
8 744.365 Verified inventory.--
9 (2) CONTENTS.--The verified inventory must include the
10 following:
11 (a) All property of the ward, real and personal, that
12 has come into the guardian's possession or knowledge,
13 including a statement of all encumbrances, liens, and other
14 secured claims on any item, any claims against the property,
15 and any cause of action accruing to the ward and any trusts of
16 which the ward is a beneficiary;
17 (b) The location of the real and personal property in
18 sufficient detail so that it may be clearly identified or
19 located; and
20 (c) A description of all sources of income, including,
21 without limitation, social security benefits and pensions.
22 Section 15. Subsections (1) and (3) of section
23 744.367, Florida Statutes, are amended to read:
24 744.367 Duty to file annual guardianship report.--
25 (1) Unless the court requires filing on a
26 calendar-year basis, each guardian of the person shall file
27 with the court an annual guardianship plan within 90 days
28 after the last day of the anniversary month the letters of
29 guardianship were signed, and the plan must cover the coming
30 fiscal year, ending on the last day in such anniversary month.
31 If the court requires calendar-year filing, the guardianship
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1 plan must be filed on or before April 1 of each year within 90
2 days after the end of the calendar year.
3 (3) The annual guardianship report of a guardian of
4 the property must consist of an annual accounting, and the
5 annual report of a guardian of the person of an incapacitated
6 person must consist of an annual guardianship plan. The annual
7 report shall be served on the ward, unless the ward is a minor
8 under the age of 14 years or is totally incapacitated, and on
9 the attorney for the ward, if any. The guardian shall provide
10 a copy to any other person as the court may direct.
11 Section 16. Section 744.3675, Florida Statutes, is
12 amended to read:
13 744.3675 Annual guardianship plan.--Each guardian of
14 the person must file with the court an annual guardianship
15 plan which updates information about the condition of the
16 ward. The annual plan must specify the current needs of the
17 ward and how those needs are proposed to be met in the coming
18 year.
19 (1) Each plan for an adult ward must, if applicable,
20 include:
21 (a) Information concerning the residence of the ward,
22 including:
23 1. The ward's address at the time of filing the plan;
24 2. The name and address of each place where the ward
25 was maintained during the preceding year;
26 3. The length of stay of the ward at each place;
27 4. A statement of whether the current residential
28 setting is best suited for the current needs of the ward; and
29 5. Plans for ensuring during the coming year that the
30 ward is in the best residential setting to meet his or her
31 needs.
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1 (b) Information concerning the medical and mental
2 health conditions condition and treatment and rehabilitation
3 needs of the ward, including:
4 1. A resume of any professional medical treatment
5 given to the ward during the preceding year;
6 2. The report of a physician who examined the ward no
7 more than 90 days before the beginning of the applicable
8 reporting period. The Such report must contain an evaluation
9 of the ward's condition and a statement of the current level
10 of capacity of the ward; and
11 3. The plan for providing provision of medical, mental
12 health, and rehabilitative services in the coming year.
13 (c) Information concerning the social condition of the
14 ward, including:
15 1. The social and personal services currently used
16 utilized by the ward;
17 2. The social skills of the ward, including a
18 statement of how well the ward communicates and maintains
19 interpersonal relationships with others; and
20 3. A description of the ward's activities at
21 communication and visitation; and
22 3.4. The social needs of the ward.
23 (2) Each plan filed by the legal guardian of a minor
24 must include:
25 (a) Information concerning the residence of the minor,
26 including:
27 1. The minor's address at the time of filing the plan;
28 and
29 2. The name and address of each place where the minor
30 lived during the preceding year.
31 (b) Information concerning the medical and mental
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1 health conditions and treatment and rehabilitation needs of
2 the minor, including:
3 1. A resume of any professional medical treatment
4 given to the minor during the preceding year;
5 2. A report from the physician who examined the minor
6 no more than 180 days before the beginning of the applicable
7 reporting period which contains an evaluation of the minor's
8 physical and mental conditions; and
9 3. The plan for providing medical services in the
10 coming year.
11 (c) Information concerning the education of the minor,
12 including:
13 1. A summary of the school progress report;
14 2. The social development of the minor, including a
15 statement of how well the minor communicates and maintains
16 interpersonal relationships with others; and
17 3. The social needs of the minor.
18 (3)(2) Each plan for an adult ward must address the
19 issue of restoration of rights to the ward and include:
20 (a) A summary of activities during the preceding year
21 which were designed to enhance increase the capacity of the
22 ward;
23 (b) A statement of whether the ward can have any
24 rights restored; and
25 (c) A statement of whether restoration of any rights
26 will be sought.
27 (4)(3) The court, in its discretion, may require
28 reexamination of the ward by a physician at any time.
29 Section 17. Subsections (2) and (3) of section
30 744.3678, Florida Statutes, are amended to read:
31 744.3678 Annual accounting.--
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1 (2) The annual accounting must include:
2 (a) A full and correct account of the receipts and
3 disbursements of all of the ward's property over which the
4 guardian has control and a statement of the ward's property on
5 hand at the end of the accounting period. This paragraph does
6 not apply to any property under the control of the guardian,
7 including any trust of which the ward is a beneficiary but
8 which is not under the control or administration of the
9 guardian.
10 (b) A copy of the annual or year-end statement of all
11 of the ward's cash accounts from each of the institutions
12 where the cash is deposited.
13 (3) The guardian must obtain a receipt, or canceled
14 check, or other proof of payment for all expenditures and
15 disbursements made on behalf of the ward. The guardian must
16 preserve all evidence of payment the receipts and canceled
17 checks, along with other substantiating papers, for a period
18 of 3 years after his or her discharge. The receipts, proof of
19 payment checks, and substantiating papers need not be filed
20 with the court but shall be made available for inspection and
21 review at the such time and in such place and before such
22 persons as the court may from time to time order.
23 Section 18. Section 744.3679, Florida Statutes, is
24 amended to read:
25 744.3679 Simplified accounting procedures in certain
26 cases.--
27 (1) In a guardianship of property, when all assets of
28 the estate are in designated depositories under s. 69.031 and
29 the only transactions that occur in that account are interest
30 accrual, deposits from a pursuant to settlement, or financial
31 institution service charges, the guardian may elect to file an
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1 accounting consisting of:
2 (a) The original or a certified copy of the year-end
3 statement of the ward's account from the financial
4 institution; and
5 (b) A statement by the guardian under penalty of
6 perjury that the guardian has custody and control of the
7 ward's property as shown in the year-end statement.
8 (2) The clerk has no responsibility to monitor or
9 audit the accounts and may not accept a fee for doing so.
10 (2)(3) The accounting allowed by subsection (1) is in
11 lieu of the accounting and auditing procedures under s.
12 744.3678(2) ss. 744.3678 and 744.368(1)(f). However, any
13 interested party may seek judicial review as provided in s.
14 744.3685.
15 (3)(4) The guardian need not be represented by an
16 attorney in order to file the annual accounting allowed by
17 subsection (1).
18 Section 19. Subsection (3) of section 744.368, Florida
19 Statutes, is amended to read:
20 744.368 Responsibilities of the clerk of the circuit
21 court.--
22 (3) Within 90 days after the filing of the verified
23 inventory and accountings initial or annual guardianship
24 report by a guardian of the property, the clerk shall audit
25 the verified inventory and or the accountings annual
26 accounting. The clerk shall advise the court of the results of
27 the audit.
28 Section 20. Subsection (19) of section 744.441,
29 Florida Statutes, is amended to read:
30 744.441 Powers of guardian upon court approval.--After
31 obtaining approval of the court pursuant to a petition for
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1 authorization to act, a plenary guardian of the property, or a
2 limited guardian of the property within the powers granted by
3 the order appointing the guardian or an approved annual or
4 amended guardianship report, may:
5 (19) Create or amend revocable or irrevocable trusts
6 of property of the ward's estate which may extend beyond the
7 disability or life of the ward in connection with estate,
8 gift, income, or other tax planning or in connection with
9 estate planning. The court shall retain oversight of the
10 assets transferred to a trust, unless otherwise ordered by the
11 court.
12 Section 21. Section 744.442, Florida Statutes, is
13 created to read:
14 744.442 Delegation of authority.--
15 (1) A guardian may designate a surrogate guardian to
16 exercise the powers of the guardian if the guardian is
17 unavailable to act. A person designated as a surrogate
18 guardian under this section must be a professional guardian.
19 (2)(a) A guardian must file a petition with the court
20 requesting permission to designate a surrogate guardian.
21 (b) If the court approves the designation, the order
22 must specify the name and business address of the surrogate
23 guardian, and the duration of appointment, which may not
24 exceed 30 days. The court may extend the appointment for good
25 cause shown. The surrogate guardian may exercise all powers of
26 the guardian unless limited by order of the court. The
27 surrogate guardian must file with the court an oath swearing
28 or affirming that he or she will faithfully perform the duties
29 delegated. The court may require the surrogate guardian to
30 post a bond.
31 (3) This section does not limit the responsibility of
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1 the guardian to the ward and to the court. The guardian is
2 liable for the acts of the surrogate guardian. The guardian
3 may terminate the authority of the surrogate guardian by
4 filing a written notice of the termination with the court.
5 (4) The surrogate guardian is subject to the
6 jurisdiction of the court as if appointed to serve as
7 guardian.
8 Section 22. Paragraphs (c), (e), and (f) of subsection
9 (2) and subsection (4) of section 744.464, Florida Statutes,
10 are amended to read:
11 744.464 Restoration to capacity.--
12 (2) SUGGESTION OF CAPACITY.--
13 (c) The court shall immediately send notice of the
14 filing of the suggestion of capacity to the ward, the
15 guardian, the attorney for the ward, if any, the state
16 attorney, and any other interested persons designated by the
17 court. Formal notice must be served on the guardian.
18 Informal notice may be served on other persons. Notice need
19 not be served on the person who filed the suggestion of
20 capacity.
21 (e) If an objection is timely filed, or if the medical
22 examination suggests that full restoration is not appropriate,
23 the court shall set the matter for hearing. If the ward does
24 not have an attorney, the court shall appoint one to represent
25 the ward.
26 (f) Notice of the hearing and copies of the objections
27 and medical examination reports shall be served upon the ward,
28 the ward's attorney, the guardian, the state attorney, the
29 ward's next of kin, and any other interested persons as
30 directed by the court.
31 (4) TIME LIMITATION FOR FILING SUGGESTION OF
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1 CAPACITY.--Notwithstanding this section, a suggestion of
2 capacity may not be filed within 90 days after an adjudication
3 of incapacity or denial of restoration, unless good cause is
4 shown.
5 Section 23. Subsection (19) of section 744.474,
6 Florida Statutes, is amended to read:
7 744.474 Reasons for removal of guardian.--A guardian
8 may be removed for any of the following reasons, and the
9 removal shall be in addition to any other penalties prescribed
10 by law:
11 (19) Upon a showing by a person who did not receive
12 notice of the petition for adjudication of incapacity, when
13 such notice is required, or who is related to the ward within
14 the relationships specified for nonresident relatives in ss.
15 744.309(2) and 744.312(2) and who has not previously been
16 rejected by the court as a guardian that:
17 (a) the current guardian is not a family member; and
18 subsection (20) applies.
19 (20)(b) Removal of the current guardian is in the best
20 interest of the ward., The court may remove the current
21 guardian and appoint the petitioner, or such person as the
22 court deems in the best interest of the ward, either as
23 guardian of the person or of the property, or both.
24 Section 24. Section 744.511, Florida Statutes, is
25 amended to read:
26 744.511 Accounting upon removal.--A removed guardian
27 shall file with the court a true, complete, and final report
28 of his or her guardianship within 20 days after removal and
29 shall serve a copy on the successor guardian and the ward,
30 unless the ward is a minor under 14 years of age or has been
31 determined to be totally incapacitated.
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1 Section 25. Section 744.527, Florida Statutes, is
2 amended to read:
3 744.527 Final reports and application for discharge;
4 hearing.--
5 (1) When the court terminates the guardianship,
6 according to the reasons set forth in s. 744.521 the guardian
7 shall promptly file his or her final report. If the ward has
8 died, the guardian must file a final report with the court no
9 later than 45 days after he or she has been served with
10 letters of administration or letters of curatorship. If no
11 objections are filed and if it appears that the guardian has
12 made full and complete distribution to the person entitled and
13 has otherwise faithfully discharged his or her duties, the
14 court shall approve the final report. If objections are
15 filed, the court shall conduct a hearing in the same manner as
16 provided for a hearing on objections to annual guardianship
17 reports.
18 (2) The guardian applying for discharge may is
19 authorized to retain from the funds in his or her possession a
20 sufficient amount to pay the final costs of administration,
21 including guardian and attorney's fees regardless of the death
22 of the ward, accruing between the filing of his or her final
23 returns and the order of discharge.
24 Section 26. Subsection (3) of section 744.528, Florida
25 Statutes, is amended to read:
26 744.528 Discharge of guardian named as personal
27 representative.--
28 (3) Any interested person may file a notice of The
29 court shall set a hearing on any objections filed by the
30 beneficiaries. Notice of the hearing must shall be served upon
31 the guardian, beneficiaries of the ward's estate, and any
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1 other person to whom the court directs service. If a notice of
2 hearing on the objections is not served within 90 days after
3 filing of the objections, the objections are deemed abandoned.
4 Section 27. Subsection (6) of section 744.708, Florida
5 Statutes, is amended to read:
6 744.708 Reports and standards.--
7 (6) A The public guardian shall ensure that each of
8 the guardian's wards is personally visited ward is seen by the
9 public guardian or by a professional staff person of the
10 public guardian at least once each calendar quarter four times
11 a year. During this personal visit, the public guardian or the
12 professional staff person shall assess:
13 (a) The ward's physical appearance and condition;
14 (b) The appropriateness of the ward's current living
15 situation; and
16 (c) The need for any additional services and the
17 necessity for continuation of existing services, taking into
18 consideration all aspects of social, psychological,
19 educational, direct service, health, and personal care needs.
20 Section 28. Paragraph (a) of subsection (5) of section
21 765.101, Florida Statutes, is amended to read:
22 765.101 Definitions.--As used in this chapter:
23 (5) "Health care decision" means:
24 (a) Informed consent, refusal of consent, or
25 withdrawal of consent to any and all health care, including
26 life-prolonging procedures and mental health treatment, unless
27 otherwise stated in the advance directives.
28 Section 29. Section 28.345, Florida Statutes, is
29 amended to read:
30 28.345 Exemption from court-related fees and
31 charges.--Notwithstanding any other provision of this chapter
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1 or law to the contrary, judges, state attorneys, guardians ad
2 litem, public guardians, and public defenders, acting in their
3 official capacity, and state agencies, are exempt from all
4 court-related fees and charges assessed by the clerks of the
5 circuit courts.
6 Section 30. Paragraph (c) of subsection (8) of section
7 121.091, Florida Statutes, is amended to read:
8 121.091 Benefits payable under the system.--Benefits
9 may not be paid under this section unless the member has
10 terminated employment as provided in s. 121.021(39)(a) or
11 begun participation in the Deferred Retirement Option Program
12 as provided in subsection (13), and a proper application has
13 been filed in the manner prescribed by the department. The
14 department may cancel an application for retirement benefits
15 when the member or beneficiary fails to timely provide the
16 information and documents required by this chapter and the
17 department's rules. The department shall adopt rules
18 establishing procedures for application for retirement
19 benefits and for the cancellation of such application when the
20 required information or documents are not received.
21 (8) DESIGNATION OF BENEFICIARIES.--
22 (c) Notwithstanding the member's designation of
23 benefits to be paid through a trust to a beneficiary that is a
24 natural person as provided in s. 121.021(46), and
25 notwithstanding the provisions of the trust, benefits shall be
26 paid directly to the beneficiary if the such person is no
27 longer a minor or incapacitated as defined in s. 744.102(12)
28 and (13) s. 744.102(11) and (12).
29 Section 31. Subsection (1) of section 709.08, Florida
30 Statutes, is amended to read:
31 709.08 Durable power of attorney.--
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1 (1) CREATION OF DURABLE POWER OF ATTORNEY.--A durable
2 power of attorney is a written power of attorney by which a
3 principal designates another as the principal's attorney in
4 fact. The durable power of attorney must be in writing, must
5 be executed with the same formalities required for the
6 conveyance of real property by Florida law, and must contain
7 the words: "This durable power of attorney is not affected by
8 subsequent incapacity of the principal except as provided in
9 s. 709.08, Florida Statutes"; or similar words that show the
10 principal's intent that the authority conferred is exercisable
11 notwithstanding the principal's subsequent incapacity, except
12 as otherwise provided by this section. The durable power of
13 attorney is exercisable as of the date of execution; however,
14 if the durable power of attorney is conditioned upon the
15 principal's lack of capacity to manage property as defined in
16 s. 744.102(12)(a) s. 744.102(11)(a), the durable power of
17 attorney is exercisable upon the delivery of affidavits in
18 paragraphs (4)(c) and (d) to the third party.
19 Section 32. Subsection (3) of section 744.1085,
20 Florida Statutes, is amended to read:
21 744.1085 Regulation of professional guardians;
22 application; bond required; educational requirements.--
23 (3) Each professional guardian defined in s.
24 744.102(17) s. 744.102(16) and public guardian must receive a
25 minimum of 40 hours of instruction and training. Each
26 professional guardian must receive a minimum of 16 hours of
27 continuing education every 2 calendar years after the year in
28 which the initial 40-hour educational requirement is met. The
29 instruction and education must be completed through a course
30 approved or offered by the Statewide Public Guardianship
31 Office. The expenses incurred to satisfy the educational
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1 requirements prescribed in this section may not be paid with
2 the assets of any ward. This subsection does not apply to any
3 attorney who is licensed to practice law in this state.
4 Section 33. For the purpose of incorporating the
5 amendment made by this act to section 744.3215, Florida
6 Statutes, in a reference thereto, subsection (4) of section
7 117.107, Florida Statutes, is reenacted to read:
8 117.107 Prohibited acts.--
9 (4) A notary public may not take the acknowledgment of
10 or administer an oath to a person whom the notary public
11 actually knows to have been adjudicated mentally incapacitated
12 by a court of competent jurisdiction, where the acknowledgment
13 or oath necessitates the exercise of a right that has been
14 removed pursuant to s. 744.3215(2) or (3), and where the
15 person has not been restored to capacity as a matter of
16 record.
17 Section 34. This act shall take effect July 1, 2005.
18
19
20 ================ T I T L E A M E N D M E N T ===============
21 And the title is amended as follows:
22 Delete everything before the enacting clause
23
24 and insert:
25 A bill to be entitled
26 An act relating to guardianship; amending s.
27 744.102, F.S.; defining the terms "audit" and
28 "surrogate guardian"; amending s. 744.1083,
29 F.S.; authorizing revocation or suspension of a
30 guardian's registration; providing that the
31 Statewide Public Guardianship Office need not
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1 review credit and criminal investigations from
2 a college or university before registering the
3 institution as a professional guardian;
4 amending s. 744.301, F.S.; providing that in
5 the event of death, the surviving parent is the
6 sole natural guardian of a minor; prohibiting a
7 natural guardian from using the property of the
8 ward for the guardian's benefit without a court
9 order; creating s. 744.3025, F.S.; authorizing
10 a court to appoint a guardian ad litem to
11 represent a minor's interest in certain claims
12 that exceed a specified amount; requiring a
13 court to appoint a guardian ad litem to
14 represent a minor's interest in certain claims
15 that exceed a specified amount; providing that
16 a court need not appoint a guardian ad litem
17 under certain circumstances; requiring a court
18 to award reasonable fees and costs to the
19 guardian ad litem; amending s. 744.3031, F.S.;
20 increasing the time an emergency temporary
21 guardian may serve to 90 days; authorizing an
22 extension; requiring an emergency temporary
23 guardian to file a final report; providing for
24 the contents of the final report; amending s.
25 744.304, F.S.; specifying the persons who may
26 file a petition for a standby guardian;
27 requiring that notice of the appointment
28 hearing be served on the ward's next of kin;
29 clarifying when a standby guardian may assume
30 the duties of guardian; requiring that each
31 standby guardian submit to credit and criminal
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1 background checks; amending s. 744.3115, F.S.;
2 providing a cross-reference; amending s.
3 744.3135, F.S.; providing procedures for
4 completing a guardians' criminal background
5 investigation; authorizing a guardian to use
6 inkless electronic fingerprinting equipment
7 that is available for background investigations
8 of public employees; providing that a guardian
9 need not be rescreened if he or she uses
10 certain inkless electronic fingerprinting
11 equipment; requiring the Department of Law
12 Enforcement to retain electronically submitted
13 fingerprints and to enter them into the
14 statewide automated fingerprint identification
15 system; requiring the department to search all
16 fingerprint cards received from each guardian
17 and each employee of such guardian against
18 fingerprints retained in the statewide
19 automated fingerprint identification system;
20 requiring a guardian to pay an annual fee to
21 the clerk of court for the background
22 investigation; requiring a guardian and each
23 employee of such guardian to complete an
24 investigation of his or her credit history;
25 requiring the Statewide Public Guardianship
26 Office to adopt a rule for credit
27 investigations of guardians; authorizing the
28 office to inspect the results of any criminal
29 or credit investigation; amending s. 744.3145,
30 F.S.; reducing the time in which a guardian
31 must complete the education courses from 1 year
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1 to 4 months; amending s. 744.3215, F.S.;
2 providing that an incapacitated person retains
3 the right to receive necessary services and
4 rehabilitation necessary to maximize the
5 quality of the person's life; amending s.
6 744.331, F.S.; requiring that the court appoint
7 an attorney from a specified registry;
8 requiring attorneys to complete certain
9 training programs; providing that a member of
10 the examining committee may not be related to
11 or associated with certain persons; prohibiting
12 a person who served on an examining committee
13 from being appointed as the guardian; requiring
14 each member of an examining committee to file
15 an affidavit stating that he or she has
16 completed the mandatory training; providing for
17 training programs; requiring each member to
18 report the time and date that he or she
19 examined the person alleged to be
20 incapacitated; providing for an award of
21 attorney's fees; amending s. 744.341, F.S.;
22 requiring the voluntary guardian to include
23 certain information in the annual report;
24 requiring that certain specified information be
25 included in the notice to terminate a voluntary
26 guardianship; amending s. 744.361, F.S.;
27 requiring a professional guardian to ensure
28 that each of his or her wards is personally
29 visited at least quarterly; providing for the
30 assessment of certain conditions during the
31 personal visit; amending s. 744.365, F.S.;
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1 requiring that the verified inventory include
2 information on any trust to which a ward is a
3 beneficiary; amending s. 744.367, F.S.;
4 requiring that the annual report of the
5 guardian be filed on or before April 1 of each
6 year; amending s. 744.3675, F.S.; requiring
7 that the annual guardianship plan include
8 information on the mental condition of the
9 ward; providing for an annual guardianship plan
10 for wards who are minors; amending s. 744.3678,
11 F.S.; providing that property of the ward which
12 is not under the control of the guardian,
13 including certain trusts, is not subject to
14 annual accounting; requiring certain
15 documentation for the annual accounting;
16 amending s. 744.3679, F.S.; removing a
17 provision prohibiting the clerk of court from
18 having responsibility for monitoring or
19 auditing accounts in certain cases; amending s.
20 744.368, F.S.; requiring that the verified
21 inventory and the accountings be audited within
22 a specified time period; amending s. 744.441,
23 F.S.; requiring the court to retain oversight
24 for assets of a ward transferred to a trust;
25 creating s. 744.442, F.S.; providing that a
26 guardian may designate a surrogate guardian to
27 exercise the powers of the guardian if the
28 guardian is unavailable to act; requiring the
29 surrogate guardian to be a professional
30 guardian; providing the procedures to be used
31 in appointing a surrogate guardian; providing
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1 the duties of a surrogate guardian; requiring
2 the guardian to be liable for the acts of the
3 surrogate guardian; authorizing the guardian to
4 terminate the services of the surrogate
5 guardian by filing a written notice of the
6 termination with the court; amending s.
7 744.464, F.S.; removing the state attorney from
8 the list of persons to be served a notice of a
9 hearing on restoration of capacity; removing a
10 time limitation on the filing of a suggestion
11 of capacity; amending s. 744.474, F.S.;
12 revising the circumstances under which a
13 guardian may be removed; amending s. 744.511,
14 F.S.; providing that a ward who is a minor need
15 not be served with the final report of a
16 removed guardian; amending s. 744.527, F.S.;
17 providing that final reports for a deceased
18 ward be filed at a specified time; amending s.
19 744.528, F.S.; providing for a notice of the
20 hearing for objections to a report filed by a
21 guardian; amending s. 744.708, F.S.; requiring
22 a public guardian to ensure that each of his or
23 her wards is personally visited at least
24 quarterly; providing for the assessment of
25 certain conditions during the personal visit;
26 amending s. 765.101, F.S.; redefining the term
27 "health care decision" to include informed
28 consent for mental health treatment services;
29 amending s. 28.345, F.S.; exempting a public
30 guardian from paying court-related fees and
31 charges; amending ss. 121.091, 709.08, and
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1 744.1085, F.S.; conforming cross-references;
2 reenacting s. 117.107(4), F.S., relating to
3 prohibited acts of a notary public, to
4 incorporate the amendment made to s. 744.3215,
5 F.S., in a reference thereto; providing an
6 effective date.
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