Senate Bill sb1958

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    Florida Senate - 2005                                  SB 1958

    By Senator Saunders





    37-965B-05

  1                      A bill to be entitled

  2         An act relating to guardianship; amending s.

  3         744.102, F.S.; defining the terms "audit" and

  4         "surrogate guardian"; amending s. 744.1083,

  5         F.S.; providing that the Statewide Public

  6         Guardianship Office need not review credit and

  7         criminal investigations from a college or

  8         university before registering the institution

  9         as a professional guardian; amending s.

10         744.301, F.S.; providing that in the event of

11         death, the surviving parent is the sole natural

12         guardian of a minor; prohibiting a natural

13         guardian from using the property of the ward

14         for the guardian's benefit without a court

15         order; creating s. 744.3025, F.S.; authorizing

16         a court to appoint a guardian ad litem to

17         represent a minor's interest in certain claims

18         that exceed a specified amount; requiring a

19         court to appoint a guardian ad litem to

20         represent a minor's interest in certain claims

21         that exceed a specified amount; providing that

22         a court need not appoint a guardian ad litem

23         under certain circumstances; requiring a court

24         to award reasonable fees and costs to the

25         guardian ad litem; amending s. 744.3031, F.S.;

26         increasing the time an emergency temporary

27         guardian may serve to 90 days; authorizing an

28         extension; requiring an emergency temporary

29         guardian to file a final report; providing for

30         the contents of the final report; amending s.

31         744.304, F.S.; specifying the persons who may

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 1         file a petition for a standby guardian;

 2         requiring that notice of the appointment

 3         hearing be served on the ward's next of kin;

 4         clarifying when a standby guardian may assume

 5         the duties of guardian; requiring that each

 6         standby guardian submit to credit and criminal

 7         background checks; amending s. 744.3115, F.S.;

 8         providing a cross-reference; amending s.

 9         744.3135, F.S.; providing procedures for

10         completing a guardians' criminal background

11         investigation; authorizing a guardian to use

12         inkless electronic fingerprinting equipment

13         that is available for background investigations

14         of public employees; providing that a guardian

15         need not be rescreened if he or she uses

16         certain inkless electronic fingerprinting

17         equipment; requiring the Statewide Public

18         Guardianship Office to adopt a rule for credit

19         investigations of guardians; amending s.

20         744.3145, F.S.; reducing the time in which a

21         guardian must complete the education courses

22         from 1 year to 4 months; amending s. 744.3215,

23         F.S.; providing that an incapacitated person

24         retains the right to receive necessary services

25         and rehabilitation necessary to maximize the

26         quality of the person's life; amending s.

27         744.331, F.S.; requiring that the court appoint

28         an attorney from a specified registry;

29         requiring attorneys to complete certain

30         training programs; providing that a member of

31         the examining committee may not be related to

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 1         or associated with certain persons; prohibiting

 2         a person who served on an examining committee

 3         from being appointed as the guardian; requiring

 4         each member of an examining committee to file

 5         an affidavit stating that he or she has

 6         completed the mandatory training; providing for

 7         training programs; requiring each member to

 8         report the time and date that he or she

 9         examined the person alleged to be

10         incapacitated; providing for an award of

11         attorney's fees; amending s. 744.341, F.S.;

12         requiring the voluntary guardian to include

13         certain information in the annual report;

14         requiring that certain specified information be

15         included in the notice to terminate a voluntary

16         guardianship; amending s. 744.361, F.S.;

17         requiring a professional guardian to ensure

18         that each of his or her wards is personally

19         visited at least quarterly; providing for the

20         assessment of certain conditions during the

21         personal visit; amending s. 744.365, F.S.;

22         requiring that the verified inventory include

23         information on any trust to which a ward is a

24         beneficiary; amending s. 744.367, F.S.;

25         requiring that the annual report of the

26         guardian be filed on or before April 1 of each

27         year; amending s. 744.3675, F.S.; requiring

28         that the annual guardianship plan include

29         information on the mental condition of the

30         ward; providing for an annual guardianship plan

31         for wards who are minors; amending s. 744.3678,

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 1         F.S.; providing that property of the ward which

 2         is not under the control of the guardian,

 3         including certain trusts, is not subject to

 4         annual accounting; requiring certain

 5         documentation for the annual accounting;

 6         amending s. 744.3679, F.S.; removing a

 7         provision prohibiting the clerk of court from

 8         having responsibility for monitoring or

 9         auditing accounts in certain cases; amending s.

10         744.368, F.S.; requiring that the verified

11         inventory and the accountings be audited within

12         a specified time period; amending s. 744.441,

13         F.S.; requiring the court to retain oversight

14         for assets of a ward transferred to a trust;

15         creating s. 744.442, F.S.; providing that a

16         guardian may designate a surrogate guardian to

17         exercise the powers of the guardian if the

18         guardian is unavailable to act; requiring the

19         surrogate guardian to be a professional

20         guardian; providing the procedures to be used

21         in appointing a surrogate guardian; providing

22         the duties of a surrogate guardian; requiring

23         the guardian to be liable for the acts of the

24         surrogate guardian; authorizing the guardian to

25         terminate the services of the surrogate

26         guardian by filing a written notice of the

27         termination with the court; amending s.

28         744.464, F.S.; removing the state attorney from

29         the list of persons to be served a notice of a

30         hearing on restoration of capacity; removing a

31         time limitation on the filing of a suggestion

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 1         of capacity; amending s. 744.511, F.S.;

 2         providing that a ward who is a minor need not

 3         be served with the final report of a removed

 4         guardian; amending s. 744.527, F.S.; providing

 5         that final reports for a deceased ward be filed

 6         at a specified time; amending s. 744.528, F.S.;

 7         providing for a notice of the hearing for

 8         objections to a report filed by a guardian;

 9         amending s. 744.708, F.S.; requiring a public

10         guardian to ensure that each of his or her

11         wards is personally visited at least quarterly;

12         providing for the assessment of certain

13         conditions during the personal visit; amending

14         s. 765.101, F.S.; redefining the term "health

15         care decision" to include informed consent for

16         mental health treatment services; amending s.

17         28.345, F.S.; exempting a public guardian from

18         paying court-related fees and charges; amending

19         ss. 121.091, 709.08, and 744.1085, F.S.;

20         conforming cross-references; reenacting s.

21         117.107(4), F.S., relating to prohibited acts

22         of a notary public, to incorporate the

23         amendment made to s. 744.3215, F.S., in a

24         reference thereto; amending s. 318.18, F.S.;

25         authorizing a county to impose a surcharge on

26         certain civil penalties to fund local

27         participation in the public guardianship

28         program; prescribing prerequisites for imposing

29         the surcharge; providing a limit on the

30         surcharge; creating s. 938.065, F.S.; requiring

31         that a specified surcharge be assessed against

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 1         all misdemeanor offenses; providing that the

 2         clerk of the court may retain a service charge;

 3         directing that the funds collected be used to

 4         fund public guardianship programs; providing an

 5         effective date.

 6  

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

 8  

 9         Section 1.  Section 744.102, Florida Statutes, is

10  amended to read:

11         744.102  Definitions.--As used in this chapter, the

12  term:

13         (1)  "Attorney for the alleged incapacitated person"

14  means an attorney who represents the alleged incapacitated

15  person. The Such attorney shall represent the expressed wishes

16  of the alleged incapacitated person to the extent it is

17  consistent with the rules regulating The Florida Bar.

18         (2)  "Audit" means a systematic review of financial

19  documents with adherence to generally accepted auditing

20  standards.

21         (3)(2)  "Clerk" means the clerk or deputy clerk of the

22  court.

23         (4)(3)  "Corporate guardian" means a corporation

24  authorized to exercise fiduciary or guardianship powers in

25  this state and includes a nonprofit corporate guardian.

26         (5)(4)  "Court" means the circuit court.

27         (6)(5)  "Court monitor" means a person appointed by the

28  court under pursuant to s. 744.107 to provide the court with

29  information concerning a ward.

30         (7)(6)  "Estate" means the property of a ward subject

31  to administration.

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 1         (8)(7)  "Foreign guardian" means a guardian appointed

 2  in another state or country.

 3         (9)(8)  "Guardian" means a person who has been

 4  appointed by the court to act on behalf of a ward's person or

 5  property, or both.

 6         (a)  "Limited guardian" means a guardian who has been

 7  appointed by the court to exercise the legal rights and powers

 8  specifically designated by court order entered after the court

 9  has found that the ward lacks the capacity to do some, but not

10  all, of the tasks necessary to care for his or her person or

11  property, or after the person has voluntarily petitioned for

12  appointment of a limited guardian.

13         (b)  "Plenary guardian" means a person who has been

14  appointed by the court to exercise all delegable legal rights

15  and powers of the ward after the court has found that the ward

16  lacks the capacity to perform all of the tasks necessary to

17  care for his or her person or property.

18         (10)(9)  "Guardian ad litem" means a person who is

19  appointed by the court having jurisdiction of the guardianship

20  or a court in which a particular legal matter is pending to

21  represent a ward in that proceeding.

22         (11)(10)  "Guardian advocate" means a person appointed

23  by a written order of the court to represent a person with

24  developmental disabilities under s. 393.12. As used in this

25  chapter, the term does not apply to a guardian advocate

26  appointed for a person determined incompetent to consent to

27  treatment under s. 394.4598.

28         (12)(11)  "Incapacitated person" means a person who has

29  been judicially determined to lack the capacity to manage at

30  least some of the property or to meet at least some of the

31  essential health and safety requirements of the such person.

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 1         (a)  To "manage property" means to take those actions

 2  necessary to obtain, administer, and dispose of real and

 3  personal property, intangible property, business property,

 4  benefits, and income.

 5         (b)  To "meet essential requirements for health or

 6  safety" means to take those actions necessary to provide the

 7  health care, food, shelter, clothing, personal hygiene, or

 8  other care without which serious and imminent physical injury

 9  or illness is more likely than not to occur.

10         (13)(12)  "Minor" means a person under 18 years of age

11  whose disabilities have not been removed by marriage or

12  otherwise.

13         (14)(13)  "Next of kin" means those persons who would

14  be heirs at law of the ward or alleged incapacitated person if

15  the such person were deceased and includes the lineal

16  descendants of the such ward or alleged incapacitated person.

17         (15)(14)  "Nonprofit corporate guardian" means a

18  nonprofit corporation organized for religious or charitable

19  purposes and existing under the laws of this state.

20         (16)(15)  "Preneed guardian" means a person named in a

21  written declaration to serve as guardian in the event of the

22  incapacity of the declarant as provided in s. 744.3045.

23         (17)(16)  "Professional guardian" means any guardian

24  who receives or has at any time received compensation for

25  services rendered services to three or more than two wards as

26  their guardian. A person serving as a guardian for two or more

27  relatives as defined in s. 744.309(2) is not considered a

28  professional guardian. A public guardian shall be considered a

29  professional guardian for purposes of regulation, education,

30  and registration.

31  

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 1         (18)(17)  "Property" means both real and personal

 2  property or any interest in it and anything that may be the

 3  subject of ownership.

 4         (19)(18)  "Standby guardian" means a person empowered

 5  to assume the duties of guardianship upon the death or

 6  adjudication of incapacity of the last surviving natural or

 7  appointed guardian.

 8         (20)  "Surrogate guardian" means a guardian designated

 9  according to s. 744.442.

10         (21)(19)  "Totally incapacitated" means incapable of

11  exercising any of the rights enumerated in s. 744.3215(2) and

12  (3).

13         (22)(20)  "Ward" means a person for whom a guardian has

14  been appointed.

15         Section 2.  Subsection (10) of section 744.1083,

16  Florida Statutes, is amended to read:

17         744.1083  Professional guardian registration.--

18         (10)  A state college or university or an independent

19  college or university described in s. 1009.98(3)(a), may, but

20  is not required to, register as a professional guardian under

21  this section. If a state college or university or independent

22  college or university elects to register as a professional

23  guardian under this subsection, the requirements of

24  subsections (3) and (4) subsection (3) do not apply and the

25  registration must include only the name, address, and employer

26  identification number of the registrant.

27         Section 3.  Section 744.301, Florida Statutes, is

28  amended to read:

29         744.301  Natural guardians.--

30         (1)  The mother and father jointly are natural

31  guardians of their own children and of their adopted children,

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 1  during minority.  If one parent dies, the surviving parent

 2  remains the sole natural guardian even if he or she the

 3  natural guardianship shall pass to the surviving parent, and

 4  the right shall continue even though the surviving parent

 5  remarries. If the marriage between the parents is dissolved,

 6  the natural guardianship belongs shall belong to the parent to

 7  whom the custody of the child is awarded. If the parents are

 8  given joint custody, then both shall continue as natural

 9  guardians.  If the marriage is dissolved and neither the

10  father nor the mother is given custody of the child, neither

11  shall act as natural guardian of the child.  The mother of a

12  child born out of wedlock is the natural guardian of the child

13  and is entitled to primary residential care and custody of the

14  child unless a court of competent jurisdiction enters an order

15  stating otherwise.

16         (2)  The Natural guardian or guardians are authorized,

17  on behalf of any of their minor children, to settle and

18  consummate a settlement of any claim or cause of action

19  accruing to any of their minor children for damages to the

20  person or property of any of said minor children and to

21  collect, receive, and manage, and dispose of the proceeds of

22  any such settlement and of any other real or personal property

23  distributed from an estate or trust or proceeds from a life

24  insurance policy to, or otherwise accruing to the benefit of,

25  the child during minority, when the amounts received, in the

26  aggregate, do amount involved in any instance does not exceed

27  $15,000, without appointment, authority, or bond.

28         (3)  All instruments executed by a natural guardian for

29  the benefit of the ward under the powers specified provided

30  for in subsection (2) shall be binding on the ward. The

31  natural guardian may not, without a court order, use the

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 1  property of the ward for the guardian's benefit or to satisfy

 2  the guardian's support obligation to the ward.

 3         (4)(a)  In any case where a minor has a claim for

 4  personal injury, property damage, or wrongful death in which

 5  the gross settlement for the claim of the minor exceeds

 6  $15,000, the court may, prior to the approval of the

 7  settlement of the minor's claim, appoint a guardian ad litem

 8  to represent the minor's interests. In any case in which the

 9  gross settlement involving a minor equals or exceeds $25,000,

10  the court shall, prior to the approval of the settlement of

11  the minor's claim, appoint a guardian ad litem to represent

12  the minor's interests. The appointment of the guardian ad

13  litem must be without the necessity of bond or a notice. The

14  duty of the guardian ad litem is to protect the minor's

15  interests. The procedure for carrying out that duty is as

16  prescribed in the Florida Probate Rules.  If a legal guardian

17  of the minor has previously been appointed and has no

18  potential adverse interest to the minor, the court may not

19  appoint a guardian ad litem to represent the minor's

20  interests, unless the court determines that the appointment is

21  otherwise necessary.

22         (b)  Unless waived, the court shall award reasonable

23  fees and costs to the guardian ad litem to be paid out of the

24  gross proceeds of the settlement.

25         Section 4.  Section 744.3025, Florida Statutes, is

26  created to read:

27         744.3025  Claims of minors.--

28         (1)(a)  The court may appoint a guardian ad litem to

29  represent the minor's interest, before approving a settlement

30  of the minor's portion of the claim, in any case in which a

31  minor has a claim for personal injury, property damage,

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 1  wrongful death, or other cause of action in which the gross

 2  settlement of the claim exceeds $15,000.

 3         (b)  The court shall appoint a guardian ad litem to

 4  represent the minor's interest before approving a settlement

 5  of the minor's claim, in any case in which the gross

 6  settlement involving a minor equals or exceeds $50,000.

 7         (c)  The appointment of the guardian ad litem must be

 8  without the necessity of bond or notice.

 9         (d)  The duty of the guardian ad litem is to protect

10  the minor's interests as described in the Florida Probate

11  Rules.

12         (e)  A court need not appoint a guardian ad litem for

13  the child if a guardian of the minor has previously been

14  appointed and that guardian has no potential adverse interest

15  to the minor. A court may appoint a guardian ad litem if the

16  court believes a guardian ad litem is necessary to protect the

17  interests of the minor.

18         (2)  Unless waived, the court shall award reasonable

19  fees and costs to the guardian ad litem to be paid out of the

20  gross proceeds of the settlement.

21         Section 5.  Subsection (3) of section 744.3031, Florida

22  Statutes, is amended, and subsection (8) is added to that

23  section, to read:

24         744.3031  Emergency temporary guardianship.--

25         (3)  The authority of an emergency temporary guardian

26  expires 90 60 days after the date of appointment or when a

27  guardian is appointed, whichever occurs first.  The authority

28  of the emergency temporary guardian may be extended for an

29  additional 90 30 days upon a showing that the emergency

30  conditions still exist.

31  

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 1         (8)(a)  An emergency temporary guardian shall file a

 2  final report no later than 30 days after the expiration of the

 3  emergency temporary guardianship.

 4         (b)  An emergency temporary guardianship is a guardian

 5  for the property. The final report must consist of a verified

 6  inventory of the property, as provided in s. 744.365, as of

 7  the date the letters of emergency temporary guardianship were

 8  issued, a final accounting that gives a full and correct

 9  account of the receipts and disbursements of all the property

10  of the ward over which the guardian had control, and a

11  statement of the property of the ward on hand at the end of

12  the emergency temporary guardianship. If the emergency

13  temporary guardian becomes the successor guardian of the

14  property, the final report must satisfy the requirements of

15  the initial guardianship report for the guardian of the

16  property as provided in s. 744.362.

17         (c)  If the emergency temporary guardian is a guardian

18  of the person, the final report must summarize the activities

19  of the temporary guardian with regard to residential

20  placement, medical condition, mental health and rehabilitative

21  services, and the social condition of the ward to the extent

22  of the authority granted to the temporary guardian in the

23  letters of guardianship. If the emergency temporary guardian

24  becomes the successor guardian of the person, the report must

25  satisfy the requirements of the initial report for a guardian

26  of the person as stated in s. 744.362.

27         (d)  A copy of the final report of the emergency

28  temporary guardianship shall be served on the successor

29  guardian and the ward.

30         Section 6.  Section 744.304, Florida Statutes, is

31  amended to read:

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 1         744.304  Standby guardianship.--

 2         (1)  Upon a petition by the natural guardians or a

 3  guardian appointed under s. 744.3021, the court may appoint a

 4  standby guardian of the person or property of a minor or

 5  consent of both parents, natural or adoptive, if living, or of

 6  the surviving parent, a standby guardian of the person or

 7  property of a minor may be appointed by the court. The court

 8  may also appoint an alternate to the guardian to act if the

 9  standby guardian does not serve or ceases to serve after

10  appointment. Notice of a hearing on the petition must be

11  served on the parents, natural or adoptive, and on any

12  guardian currently serving unless the notice is waived in

13  writing by them or waived by the court for good cause shown

14  shall renounce, die, or become incapacitated after the death

15  of the last surviving parent of the minor.

16         (2)  Upon petition of a currently serving guardian, a

17  standby guardian of the person or property of an incapacitated

18  person may be appointed by the court. Notice of the hearing

19  shall be served on the ward's next of kin.

20         (3)  The standby guardian or alternate shall be

21  empowered to assume the duties of guardianship his or her

22  office immediately on the death, removal, or resignation of

23  the guardian of a minor, or on the death or adjudication of

24  incapacity of the last surviving natural guardian or adoptive

25  parent of a minor, or upon the death, removal, or resignation

26  of the guardian for an adult. The; however, such a guardian of

27  the ward's property may not be empowered to deal with the

28  ward's property, other than to safeguard it, before prior to

29  issuance of letters of guardianship.  If the ward

30  incapacitated person is over the age of 18 years, the court

31  shall conduct a hearing as provided in s. 744.331 before

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 1  confirming the appointment of the standby guardian, unless the

 2  ward has previously been found to be incapacitated.

 3         (4)  Within 20 days after assumption of duties as

 4  guardian, a standby guardian shall petition for confirmation

 5  of appointment.  If the court finds the standby guardian to be

 6  qualified to serve as guardian under pursuant to ss. 744.309

 7  and 744.312, appointment of the guardian must be confirmed.

 8  Each guardian so confirmed shall file an oath in accordance

 9  with s. 744.347, and shall file a bond and submit to a credit

10  and criminal investigation as set forth in s. 744.3135, if

11  required. Letters of guardianship must then be issued in the

12  manner provided in s. 744.345.

13         (5)  After the assumption of duties by a standby

14  guardian, the court shall have jurisdiction over the guardian

15  and the ward.

16         Section 7.  Section 744.3115, Florida Statutes, is

17  amended to read:

18         744.3115  Advance directives for health care.--In each

19  proceeding in which a guardian is appointed under this

20  chapter, the court shall determine whether the ward, prior to

21  incapacity, has executed any valid advance directive under

22  pursuant to chapter 765. If any such advance directive exists,

23  the court shall specify in its order and letters of

24  guardianship what authority, if any, the guardian shall

25  exercise over the surrogate. Pursuant to the grounds listed in

26  s. 765.105, the court, upon its own motion, may, with notice

27  to the surrogate and any other appropriate parties, modify or

28  revoke the authority of the surrogate to make health care

29  decisions for the ward. For purposes of this section, the term

30  "health care decision" has the same meaning as in s. 765.101.

31  

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 1         Section 8.  Section 744.3135, Florida Statutes, is

 2  amended to read:

 3         744.3135  Credit and criminal investigation.--

 4         (1)  The court may require a nonprofessional guardian

 5  and shall require a professional or public guardian, and all

 6  employees of a professional guardian who have a fiduciary

 7  responsibility to a ward, to submit, at their own expense, to

 8  an investigation of the guardian's credit history and to

 9  undergo level 2 background screening as required under s.

10  435.04. If a credit or criminal investigation is required, the

11  court must consider the results of any investigation before

12  appointing a guardian. At any time, the court may require a

13  guardian or its employees to submit to an investigation of the

14  person's credit history and complete a level 1 background

15  screening as set forth in s. 435.03. The court shall consider

16  the results of any investigation when reappointing a guardian.

17  The clerk of the court shall maintain a file on each guardian

18  appointed by the court and retain documentation of the result

19  of any investigation conducted under this section in the file.

20  A professional guardian must pay the clerk of the court a fee

21  of up to $7.50 for handling and processing professional

22  guardian files.

23         (2)  The court and the Statewide Public Guardianship

24  Office shall accept the satisfactory completion of a criminal

25  background investigation by any method described in this

26  subsection. A guardian satisfies the requirements of this

27  section by undergoing:

28         (a)  An inkless electronic fingerprint criminal

29  background investigation. A guardian may use any inkless

30  electronic fingerprinting equipment used for criminal

31  background investigations of public employees. The guardian

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 1  shall pay the actual costs incurred by the Federal Bureau of

 2  Investigation or the Department of Law Enforcement for the

 3  criminal background investigation. The agency that operates

 4  the equipment used by the guardian may charge the guardian an

 5  additional fee, not to exceed $10, for the use of the

 6  equipment. The agency completing the investigation must

 7  immediately send the results of the criminal background

 8  investigation to the clerk of the court and the Statewide

 9  Public Guardianship Office. The clerk of the court shall

10  maintain the results in the guardian's file and shall make the

11  results available to the court; or

12         (b)  A criminal background investigation using a

13  fingerprint card. The clerk of the court shall obtain

14  fingerprint cards from the Federal Bureau of Investigation and

15  make them available to guardians. Any guardian who is so

16  required shall have his or her fingerprints taken and forward

17  the proper fingerprint card along with the necessary fee to

18  the Florida Department of Law Enforcement for processing. The

19  professional guardian shall pay to the clerk of the court a

20  fee of up to $7.50 for handling and processing professional

21  guardian files. The results of the fingerprint card background

22  investigations checks shall be forwarded to the clerk of the

23  court who shall maintain the results in the guardian's a

24  guardian file and shall make the results available to the

25  court and the Statewide Public Guardianship Office. A

26  professional guardian, and all employees of a professional

27  guardian who have a fiduciary responsibility to a ward must

28  complete, at his or her own expense, a level 1 background

29  screening as set forth in s. 435.03, before and at least once

30  every 2 years after the date the guardian is appointed.

31  However, a person is not required to undergo a criminal

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 1  background investigation if he or she has been screened using

 2  inkless electronic fingerprinting equipment that is capable of

 3  notifying the clerk of the court and the Statewide Public

 4  Guardianship Office of any crime charged against the person.

 5         (3)(a)  A professional guardian, and each employee of a

 6  professional guardian who has a fiduciary responsibility to a

 7  ward must complete, at the person's own expense, an

 8  investigation of the credit history of the person before and

 9  at least once every 2 years after the date of the guardian's

10  appointment.

11         (b)  The Statewide Public Guardianship Office shall

12  adopt a rule detailing the acceptable methods for completing a

13  credit investigation under this section. If appropriate, the

14  Statewide Public Guardianship Office may administer credit

15  investigations. If the office chooses to administer the credit

16  investigation, the office may adopt a rule setting a fee, not

17  to exceed $25, to reimburse the costs associated with the

18  administration of a credit investigation.

19         (4)  The Statewide Public Guardianship Office may

20  inspect at any time the results of any credit or criminal

21  investigation of a public or professional guardian conducted

22  under this section. The office shall maintain copies of the

23  credit or criminal results in the guardian's registration

24  file. If the results of a credit or criminal investigation of

25  a public or professional guardian have not been forwarded to

26  the Statewide Public Guardianship Office by the investigating

27  agency, the clerk of the court shall forward copies of the

28  results of the investigations to the office upon receiving

29  them. If credit or criminal investigations are required, the

30  court must consider the results of the investigations before

31  appointing a guardian. Professional guardians and all

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 1  employees of a professional guardian who have a fiduciary

 2  responsibility to a ward, so appointed, must resubmit, at

 3  their own expense, to an investigation of credit history, and

 4  undergo level 1 background screening as required under s.

 5  435.03, at least every 2 years after the date of their

 6  appointment. At any time, the court may require guardians or

 7  their employees to submit to an investigation of credit

 8  history and undergo level 1 background screening as required

 9  under s. 435.03. The court must consider the results of these

10  investigations in reappointing a guardian.

11         (1)  Upon receiving the results of a credit or criminal

12  investigation of any public or professional guardian, the

13  clerk of the court shall forward copies of the results to the

14  Statewide Public Guardianship Office in order that the results

15  may be maintained in the guardian's registration file.

16         (5)(2)  The requirements of this section do does not

17  apply to a professional guardian, or to the employees of a

18  professional guardian, which is a trust company, a state

19  banking corporation or state savings association authorized

20  and qualified to exercise fiduciary powers in this state, or a

21  national banking association or federal savings and loan

22  association authorized and qualified to exercise fiduciary

23  powers in this state.

24         Section 9.  Subsection (4) of section 744.3145, Florida

25  Statutes, is amended to read:

26         744.3145  Guardian education requirements.--

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

28  guardian must complete the required number of hours of

29  instruction and education within 4 months 1 year after his or

30  her appointment as guardian. The instruction and education

31  must be completed through a course approved by the chief judge

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 1  of the circuit court and taught by a court-approved

 2  organization. Court-approved organizations may include, but

 3  are not limited to, community or junior colleges, guardianship

 4  organizations, and the local bar association or The Florida

 5  Bar.

 6         Section 10.  Paragraph (i) of subsection (1) and

 7  subsection (2) of section 744.3215, Florida Statutes, are

 8  amended to read:

 9         744.3215  Rights of persons determined incapacitated.--

10         (1)  A person who has been determined to be

11  incapacitated retains the right:

12         (i)  To receive necessary services and rehabilitation

13  necessary to maximize the quality of life.

14         (2)  Rights that may be removed from a person by an

15  order determining incapacity but not delegated to a guardian

16  include the right:

17         (a)  To marry. If the right to enter into a contract

18  has been removed, the right to marry is subject to court

19  approval.

20         (b)  To vote.

21         (c)  To personally apply for government benefits.

22         (d)  To have a driver's license.

23         (e)  To travel.

24         (f)  To seek or retain employment.

25         Section 11.  Subsections (2), (3), and (7) of section

26  744.331, Florida Statutes, are amended to read:

27         744.331  Procedures to determine incapacity.--

28         (2)  ATTORNEY FOR THE ALLEGED INCAPACITATED PERSON.--

29         (a)  When a court appoints an attorney for an alleged

30  incapacitated person, the court must appoint an attorney who

31  is included in the attorney registry compiled by the circuit's

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 1  Article V indigent services committee. Appointments must be

 2  made on a rotating basis, taking into consideration conflicts

 3  arising under this chapter.

 4         (b)(a)  The court shall appoint an attorney for each

 5  person alleged to be incapacitated in all cases involving a

 6  petition for adjudication of incapacity.  The alleged

 7  incapacitated person may substitute her or his own attorney

 8  for the attorney appointed by the court, subject to court

 9  approval.

10         (c)(b)  Any attorney representing an alleged

11  incapacitated person may not serve as guardian of the alleged

12  incapacitated person or as counsel for the guardian of the

13  alleged incapacitated person or the petitioner.

14         (d)  Effective January 1, 2006, an attorney seeking to

15  be appointed by a court for incapacity and guardianship

16  proceedings must have completed a minimum of 8 hours of

17  education in guardianship. A court may waive the initial

18  training requirement for an attorney who has served as a

19  court-appointed attorney in incapacity proceedings or as an

20  attorney of record for guardians for not less than 3 years.

21         (3)  EXAMINING COMMITTEE.--

22         (a)  Within 5 days after a petition for determination

23  of incapacity has been filed, the court shall appoint an

24  examining committee consisting of three members. One member

25  must be a psychiatrist or other physician.  The remaining

26  members must be either a psychologist, gerontologist, another

27  psychiatrist, or other physician, a registered nurse, nurse

28  practitioner, licensed social worker, a person with an

29  advanced degree in gerontology from an accredited institution

30  of higher education, or other person who by knowledge, skill,

31  experience, training, or education may, in the court's

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 1  discretion, advise the court in the form of an expert opinion,

 2  including a professional guardian. One of three members of the

 3  committee must have knowledge of the type of incapacity

 4  alleged in the petition. Unless good cause is shown, the

 5  attending or family physician may not be appointed to the

 6  committee.  If the attending or family physician is available

 7  for consultation, the committee must consult with the

 8  physician.  Members of the examining committee may not be

 9  related to or associated with one another, or with the

10  petitioner, with counsel for the petitioner or the proposed

11  guardian, or the person alleged to be totally or partially

12  incapacitated.  A member may not be employed by any private or

13  governmental agency that has custody of, or furnishes,

14  services or subsidies, directly or indirectly, to the person

15  or the family of the person alleged to be incapacitated or for

16  whom a guardianship is sought.  A petitioner may not serve as

17  a member of the examining committee. Members of the examining

18  committee must be able to communicate, either directly or

19  through an interpreter, in the language that the alleged

20  incapacitated person speaks or to communicate in a medium

21  understandable to the alleged incapacitated person if she or

22  he is able to communicate. The clerk of the court shall send

23  notice of the appointment to each person appointed no later

24  than 3 days after the court's appointment.

25         (b)  A person who has been appointed to serve as a

26  member of an examining committee to examine an alleged

27  incapacitated person may not thereafter be appointed as a

28  guardian for the person who was the subject of the

29  examination.

30         (c)  Each person appointed to an examining committee

31  must file an affidavit with the court stating that he or she

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 1  has completed the required courses or will do so no later than

 2  4 months after his or her initial appointment. Each year, the

 3  chief judge of the circuit must prepare a list of persons

 4  qualified to be members of the examining committee.

 5         (d)  A member of an examining committee must complete a

 6  minimum of 4 hours of initial training. The person must

 7  complete 2 hours of continuing education during each 2-year

 8  period after the initial training. The initial training and

 9  continuing education program must be developed under the

10  supervision of the Statewide Public Guardianship Office, in

11  consultation with the Florida Conference of Circuit Court

12  Judges, the Elder Law and Real Property, Probate and Trust Law

13  sections of The Florida Bar, the Florida State Guardianship

14  Association, and the Florida Guardianship Foundation. The

15  court may waive the initial training requirement for a person

16  who has served for not less than 5 years on examining

17  committees. If a person wishes to obtain his or her continuing

18  education on the Internet or by watching a video course, the

19  person must first obtain the approval of the chief judge

20  before taking an Internet or video course.

21         (e)(b)  Each member of the examining committee shall

22  examine the person. Each The examining committee member must

23  shall determine the alleged incapacitated person's ability to

24  exercise those rights specified in s. 744.3215. In addition to

25  the examination, each the examining committee member must

26  shall have access to, and may consider, previous examinations

27  of the person, including, but not limited to, habilitation

28  plans, school records, and psychological and psychosocial

29  reports voluntarily offered for use by the alleged

30  incapacitated person. Each member of the examining committee

31  must shall submit a report within 15 days after appointment.

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 1         (f)(c)  The examination of the alleged incapacitated

 2  person must include a comprehensive examination, a report of

 3  which shall be filed by the examining committee as part of its

 4  written report. The comprehensive examination report should be

 5  an essential element, but not necessarily the only element,

 6  used in making a capacity and guardianship decision.  The

 7  comprehensive examination must include, if indicated:

 8         1.  A physical examination;

 9         2.  A mental health examination; and

10         3.  A functional assessment.

11  

12  If any of these three aspects of the examination is not

13  indicated or cannot be accomplished for any reason, the

14  written report must explain the reasons for its omission.

15         (g)(d)  The committee's written report must include:

16         1.  To the extent possible, a diagnosis, prognosis, and

17  recommended course of treatment.

18         2.  An evaluation of the alleged incapacitated person's

19  ability to retain her or his rights, including, without

20  limitation, the rights to marry; vote; contract; manage or

21  dispose of property; have a driver's license; determine her or

22  his residence; consent to medical treatment; and make

23  decisions affecting her or his social environment.

24         3.  The results of the comprehensive examination and

25  the committee members' assessment of information provided by

26  the attending or family physician, if any.

27         4.  A description of any matters with respect to which

28  the person lacks the capacity to exercise rights, the extent

29  of that incapacity, and the factual basis for the

30  determination that the person lacks that capacity.

31  

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 1         5.  The names of all persons present during the time

 2  the committee member conducted his or her examination. If a

 3  person other than the person who is the subject of the

 4  examination supplies answers posed to the alleged

 5  incapacitated person, the report must include the response and

 6  the name of the person supplying the answer.

 7         6.5.  The signature of each member of the committee and

 8  the date and time each member conducted his or her

 9  examination.

10         (h)(e)  A copy of the report must be served on the

11  petitioner and on the attorney for the alleged incapacitated

12  person within 3 days after the report is filed and at least 5

13  days before the hearing on the petition.

14         (7)  FEES.--

15         (a)  The examining committee and any attorney appointed

16  under subsection (2) are entitled to reasonable fees to be

17  determined by the court.

18         (b)  The fees awarded under paragraph (a) shall be paid

19  by the guardian from the property of the ward or, if the ward

20  is indigent, by the state. The state shall have a creditor's

21  claim against the guardianship property for any amounts paid

22  under this section. The state may file its claim within 90

23  days after the entry of an order awarding attorney ad litem

24  fees. If the state does not file its claim within the 90-day

25  period, the state is thereafter barred from asserting the

26  claim. Upon petition by the state for payment of the claim,

27  the court shall enter an order authorizing immediate payment

28  out of the property of the ward. The state shall keep a record

29  of the such payments.

30         (c)  If the petition is dismissed, costs and attorney's

31  fees of the proceeding may be assessed against the petitioner

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 1  if the court finds the petition to have been filed in bad

 2  faith.

 3         Section 12.  Present subsection (4) of section 744.341,

 4  Florida Statutes, is redesignated as subsection (5) and

 5  amended, and a new subsection (4) is added to that section, to

 6  read:

 7         744.341  Voluntary guardianship.--

 8         (4)  A guardian must include in the annual report filed

 9  with the court a certificate from a licensed physician who

10  examined the ward not more than 90 days before the annual

11  report is filed with the court. The certificate must certify

12  that the ward is competent to understand the nature of the

13  guardianship and of the ward's authority to delegate powers to

14  the voluntary guardian.

15         (5)(4)  A voluntary guardianship may be terminated by

16  the ward by filing a notice with the court that the voluntary

17  guardianship is terminated. The notice must be accompanied by

18  a certificate from a licensed physician who has examined the

19  ward not more than 30 days before the ward filed the notice

20  with the court. The physician must certify that the ward is

21  competent to understand the implications of terminating the

22  guardianship. A copy of the notice and certificate must be

23  served on all interested persons.

24         Section 13.  Subsection (9) is added to section

25  774.361, Florida Statutes, to read:

26         744.361  Powers and duties of guardian.--

27         (9)  A professional guardian must ensure that each of

28  the guardian's wards is personally visited by the guardian or

29  one of the guardian's professional staff at least once each

30  calendar quarter. During the personal visit, the guardian or

31  the guardian's professional staff person shall assess:

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 1         (a)  The ward's physical appearance and condition;

 2         (b)  The appropriateness of the ward's current living

 3  situation; and

 4         (c)  The need for any additional services and the

 5  necessity for continuation of existing services, taking into

 6  consideration all aspects of social, psychological,

 7  educational, direct service, health, and personal care needs.

 8  

 9  This subsection does not apply to a professional guardian who

10  has been appointed only as guardian of the property.

11         Section 14.  Subsection (2) of section 744.365, Florida

12  Statutes, is amended to read:

13         744.365  Verified inventory.--

14         (2)  CONTENTS.--The verified inventory must include the

15  following:

16         (a)  All property of the ward, real and personal, that

17  has come into the guardian's possession or knowledge,

18  including a statement of all encumbrances, liens, and other

19  secured claims on any item, any claims against the property,

20  and any cause of action accruing to the ward and any trusts of

21  which the ward is a beneficiary;

22         (b)  The location of the real and personal property in

23  sufficient detail so that it may be clearly identified or

24  located; and

25         (c)  A description of all sources of income, including,

26  without limitation, social security benefits and pensions.

27         Section 15.  Subsections (1) and (3) of section

28  744.367, Florida Statutes, are amended to read:

29         744.367  Duty to file annual guardianship report.--

30         (1)  Unless the court requires filing on a

31  calendar-year basis, each guardian of the person shall file

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 1  with the court an annual guardianship plan within 90 days

 2  after the last day of the anniversary month the letters of

 3  guardianship were signed, and the plan must cover the coming

 4  fiscal year, ending on the last day in such anniversary month.

 5  If the court requires calendar-year filing, the guardianship

 6  plan must be filed on or before April 1 of each year within 90

 7  days after the end of the calendar year.

 8         (3)  The annual guardianship report of a guardian of

 9  the property must consist of an annual accounting, and the

10  annual report of a guardian of the person of an incapacitated

11  person must consist of an annual guardianship plan. The annual

12  report shall be served on the ward, unless the ward is a minor

13  under the age of 14 years or is totally incapacitated, and on

14  the attorney for the ward, if any. The guardian shall provide

15  a copy to any other person as the court may direct.

16         Section 16.  Section 744.3675, Florida Statutes, is

17  amended to read:

18         744.3675  Annual guardianship plan.--Each guardian of

19  the person must file with the court an annual guardianship

20  plan which updates information about the condition of the

21  ward.  The annual plan must specify the current needs of the

22  ward and how those needs are proposed to be met in the coming

23  year.

24         (1)  Each plan for an adult ward must, if applicable,

25  include:

26         (a)  Information concerning the residence of the ward,

27  including:

28         1.  The ward's address at the time of filing the plan;

29         2.  The name and address of each place where the ward

30  was maintained during the preceding year;

31         3.  The length of stay of the ward at each place;

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 1         4.  A statement of whether the current residential

 2  setting is best suited for the current needs of the ward; and

 3         5.  Plans for ensuring during the coming year that the

 4  ward is in the best residential setting to meet his or her

 5  needs.

 6         (b)  Information concerning the medical and mental

 7  health conditions condition and treatment and rehabilitation

 8  needs of the ward, including:

 9         1.  A resume of any professional medical treatment

10  given to the ward during the preceding year;

11         2.  The report of a physician who examined the ward no

12  more than 90 days before the beginning of the applicable

13  reporting period. The Such report must contain an evaluation

14  of the ward's condition and a statement of the current level

15  of capacity of the ward; and

16         3.  The plan for providing provision of medical, mental

17  health, and rehabilitative services in the coming year.

18         (c)  Information concerning the social condition of the

19  ward, including:

20         1.  The social and personal services currently used

21  utilized by the ward;

22         2.  The social skills of the ward, including a

23  statement of how well the ward communicates and maintains

24  interpersonal relationships with others; and

25         3.  A description of the ward's activities at

26  communication and visitation; and

27         3.4.  The social needs of the ward.

28         (2)  Each plan filed by the legal guardian of a minor

29  must include:

30         (a)  Information concerning the residence of the minor,

31  including:

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 1         1.  The minor's address at the time of filing the plan;

 2  and

 3         2.  The name and address of each place where the minor

 4  lived during the preceding year.

 5         (b)  Information concerning the medical and mental

 6  health conditions and treatment and rehabilitation needs of

 7  the minor, including:

 8         1.  A resume of any professional medical treatment

 9  given to the minor during the preceding year;

10         2.  A report from the physician who examined the minor

11  no more than 180 days before the beginning of the applicable

12  reporting period which contains an evaluation of the minor's

13  physical and mental conditions; and

14         3.  The plan for providing medical services in the

15  coming year.

16         (c)  Information concerning the education of the minor,

17  including:

18         1.  A summary of the school progress report;

19         2.  The social development of the minor, including a

20  statement of how well the minor communicates and maintains

21  interpersonal relationships with others; and

22         3.  The social needs of the minor.

23         (3)(2)  Each plan for an adult ward must address the

24  issue of restoration of rights to the ward and include:

25         (a)  A summary of activities during the preceding year

26  which were designed to enhance increase the capacity of the

27  ward;

28         (b)  A statement of whether the ward can have any

29  rights restored; and

30         (c)  A statement of whether restoration of any rights

31  will be sought.

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 1         (4)(3)  The court, in its discretion, may require

 2  reexamination of the ward by a physician at any time.

 3         Section 17.  Subsections (2) and (3) of section

 4  744.3678, Florida Statutes, are amended to read:

 5         744.3678  Annual accounting.--

 6         (2)  The annual accounting must include:

 7         (a)  A full and correct account of the receipts and

 8  disbursements of all of the ward's property over which the

 9  guardian has control and a statement of the ward's property on

10  hand at the end of the accounting period. This paragraph does

11  not apply to any property under the control of the guardian,

12  including any trust of which the ward is a beneficiary but

13  which is not under the control or administration of the

14  guardian.

15         (b)  A copy of the annual or year-end statement of all

16  of the ward's cash accounts from each of the institutions

17  where the cash is deposited.

18         (3)  The guardian must obtain a receipt, or canceled

19  check, or other proof of payment for all expenditures and

20  disbursements made on behalf of the ward. The guardian must

21  preserve all evidence of payment the receipts and canceled

22  checks, along with other substantiating papers, for a period

23  of 3 years after his or her discharge. The receipts, proof of

24  payment checks, and substantiating papers need not be filed

25  with the court but shall be made available for inspection and

26  review at the such time and in such place and before such

27  persons as the court may from time to time order.

28         Section 18.  Section 744.3679, Florida Statutes, is

29  amended to read:

30         744.3679  Simplified accounting procedures in certain

31  cases.--

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 1         (1)  In a guardianship of property, when all assets of

 2  the estate are in designated depositories under s. 69.031 and

 3  the only transactions that occur in that account are interest

 4  accrual, deposits from a pursuant to settlement, or financial

 5  institution service charges, the guardian may elect to file an

 6  accounting consisting of:

 7         (a)  The original or a certified copy of the year-end

 8  statement of the ward's account from the financial

 9  institution; and

10         (b)  A statement by the guardian under penalty of

11  perjury that the guardian has custody and control of the

12  ward's property as shown in the year-end statement.

13         (2)  The clerk has no responsibility to monitor or

14  audit the accounts and may not accept a fee for doing so.

15         (2)(3)  The accounting allowed by subsection (1) is in

16  lieu of the accounting and auditing procedures under s.

17  744.3678(2) ss. 744.3678 and 744.368(1)(f). However, any

18  interested party may seek judicial review as provided in s.

19  744.3685.

20         (3)(4)  The guardian need not be represented by an

21  attorney in order to file the annual accounting allowed by

22  subsection (1).

23         Section 19.  Subsection (3) of section 744.368, Florida

24  Statutes, is amended to read:

25         744.368  Responsibilities of the clerk of the circuit

26  court.--

27         (3)  Within 90 days after the filing of the verified

28  inventory and accountings initial or annual guardianship

29  report by a guardian of the property, the clerk shall audit

30  the verified inventory and or the accountings annual

31  

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 1  accounting. The clerk shall advise the court of the results of

 2  the audit.

 3         Section 20.  Subsection (19) of section 744.441,

 4  Florida Statutes, is amended to read:

 5         744.441  Powers of guardian upon court approval.--After

 6  obtaining approval of the court pursuant to a petition for

 7  authorization to act, a plenary guardian of the property, or a

 8  limited guardian of the property within the powers granted by

 9  the order appointing the guardian or an approved annual or

10  amended guardianship report, may:

11         (19)  Create or amend revocable or irrevocable trusts

12  of property of the ward's estate which may extend beyond the

13  disability or life of the ward in connection with estate,

14  gift, income, or other tax planning or in connection with

15  estate planning. The court shall retain oversight of the

16  assets transferred to a trust, unless otherwise ordered by the

17  court.

18         Section 21.  Section 744.442, Florida Statutes, is

19  created to read:

20         744.442  Delegation of authority.--

21         (1)  A guardian may designate a surrogate guardian to

22  exercise the powers of the guardian if the guardian is

23  unavailable to act. A person designated as a surrogate

24  guardian under this section must be a professional guardian.

25         (2)(a)  A guardian must file a petition with the court

26  requesting permission to designate a surrogate guardian.

27         (b)  If the court approves the designation, the order

28  must specify the name and business address of the surrogate

29  guardian, and the duration of appointment, which may not

30  exceed 30 days. The court may extend the appointment for good

31  cause shown. The surrogate guardian may exercise all powers of

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 1  the guardian unless limited by order of the court. The

 2  surrogate guardian must file with the court an oath swearing

 3  or affirming that he or she will faithfully perform the duties

 4  delegated. The court may require the surrogate guardian to

 5  post a bond.

 6         (3)  This section does not limit the responsibility of

 7  the guardian to the ward and to the court. The guardian is

 8  liable for the acts of the surrogate guardian. The guardian

 9  may terminate the authority of the surrogate guardian by

10  filing a written notice of the termination with the court.

11         (4)  The surrogate guardian is subject to the

12  jurisdiction of the court as if appointed to serve as

13  guardian.

14         Section 22.  Paragraphs (c), (e), and (f) of subsection

15  (2) and subsection (4) of section 744.464, Florida Statutes,

16  are amended to read:

17         744.464  Restoration to capacity.--

18         (2)  SUGGESTION OF CAPACITY.--

19         (c)  The court shall immediately send notice of the

20  filing of the suggestion of capacity to the ward, the

21  guardian, the attorney for the ward, if any, the state

22  attorney, and any other interested persons designated by the

23  court.  Formal notice must be served on the guardian.

24  Informal notice may be served on other persons. Notice need

25  not be served on the person who filed the suggestion of

26  capacity.

27         (e)  If an objection is timely filed, or if the medical

28  examination suggests that full restoration is not appropriate,

29  the court shall set the matter for hearing.  If the ward does

30  not have an attorney, the court shall appoint one to represent

31  the ward.

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 1         (f)  Notice of the hearing and copies of the objections

 2  and medical examination reports shall be served upon the ward,

 3  the ward's attorney, the guardian, the state attorney, the

 4  ward's next of kin, and any other interested persons as

 5  directed by the court.

 6         (4)  TIME LIMITATION FOR FILING SUGGESTION OF

 7  CAPACITY.--Notwithstanding this section, a suggestion of

 8  capacity may not be filed within 90 days after an adjudication

 9  of incapacity or denial of restoration, unless good cause is

10  shown.

11         Section 23.  Section 744.511, Florida Statutes, is

12  amended to read:

13         744.511  Accounting upon removal.--A removed guardian

14  shall file with the court a true, complete, and final report

15  of his or her guardianship within 20 days after removal and

16  shall serve a copy on the successor guardian and the ward,

17  unless the ward is a minor under 14 years of age or has been

18  determined to be totally incapacitated.

19         Section 24.  Section 744.527, Florida Statutes, is

20  amended to read:

21         744.527  Final reports and application for discharge;

22  hearing.--

23         (1)  When the court terminates the guardianship,

24  according to the reasons set forth in s. 744.521 the guardian

25  shall promptly file his or her final report. If the ward has

26  died, the guardian must file a final report with the court no

27  later than 45 days after he or she has been served with

28  letters of administration or letters of curatorship. If no

29  objections are filed and if it appears that the guardian has

30  made full and complete distribution to the person entitled and

31  has otherwise faithfully discharged his or her duties, the

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 1  court shall approve the final report.  If objections are

 2  filed, the court shall conduct a hearing in the same manner as

 3  provided for a hearing on objections to annual guardianship

 4  reports.

 5         (2)  The guardian applying for discharge may is

 6  authorized to retain from the funds in his or her possession a

 7  sufficient amount to pay the final costs of administration,

 8  including guardian and attorney's fees regardless of the death

 9  of the ward, accruing between the filing of his or her final

10  returns and the order of discharge.

11         Section 25.  Subsection (3) of section 744.528, Florida

12  Statutes, is amended to read:

13         744.528  Discharge of guardian named as personal

14  representative.--

15         (3)  Any interested person may file a notice of The

16  court shall set a hearing on any objections filed by the

17  beneficiaries. Notice of the hearing must shall be served upon

18  the guardian, beneficiaries of the ward's estate, and any

19  other person to whom the court directs service. If a notice of

20  hearing on the objections is not served within 90 days after

21  filing of the objections, the objections are deemed abandoned.

22         Section 26.  Subsection (6) of section 744.708, Florida

23  Statutes, is amended to read:

24         744.708  Reports and standards.--

25         (6)  A The public guardian shall ensure that each of

26  the guardian's wards is personally visited ward is seen by the

27  public guardian or by a professional staff person of the

28  public guardian at least once each calendar quarter four times

29  a year. During this personal visit, the public guardian or the

30  professional staff person shall assess:

31         (a)  The ward's physical appearance and condition;

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 1         (b)  The appropriateness of the ward's current living

 2  situation; and

 3         (c)  The need for any additional services and the

 4  necessity for continuation of existing services, taking into

 5  consideration all aspects of social, psychological,

 6  educational, direct service, health, and personal care needs.

 7         Section 27.  Paragraph (a) of subsection (5) of section

 8  765.101, Florida Statutes, is amended to read:

 9         765.101  Definitions.--As used in this chapter:

10         (5)  "Health care decision" means:

11         (a)  Informed consent, refusal of consent, or

12  withdrawal of consent to any and all health care, including

13  life-prolonging procedures and mental health treatment, unless

14  otherwise stated in the advance directives.

15         Section 28.  Section 28.345, Florida Statutes, is

16  amended to read:

17         28.345  Exemption from court-related fees and

18  charges.--Notwithstanding any other provision of this chapter

19  or law to the contrary, judges, state attorneys, guardians ad

20  litem, public guardians, and public defenders, acting in their

21  official capacity, and state agencies, are exempt from all

22  court-related fees and charges assessed by the clerks of the

23  circuit courts.

24         Section 29.  Paragraph (c) of subsection (8) of section

25  121.091, Florida Statutes, is amended to read:

26         121.091  Benefits payable under the system.--Benefits

27  may not be paid under this section unless the member has

28  terminated employment as provided in s. 121.021(39)(a) or

29  begun participation in the Deferred Retirement Option Program

30  as provided in subsection (13), and a proper application has

31  been filed in the manner prescribed by the department. The

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 1  department may cancel an application for retirement benefits

 2  when the member or beneficiary fails to timely provide the

 3  information and documents required by this chapter and the

 4  department's rules. The department shall adopt rules

 5  establishing procedures for application for retirement

 6  benefits and for the cancellation of such application when the

 7  required information or documents are not received.

 8         (8)  DESIGNATION OF BENEFICIARIES.--

 9         (c)  Notwithstanding the member's designation of

10  benefits to be paid through a trust to a beneficiary that is a

11  natural person as provided in s. 121.021(46), and

12  notwithstanding the provisions of the trust, benefits shall be

13  paid directly to the beneficiary if the such person is no

14  longer a minor or incapacitated as defined in s. 744.102(12)

15  and (13) s. 744.102(11) and (12).

16         Section 30.  Subsection (1) of section 709.08, Florida

17  Statutes, is amended to read:

18         709.08  Durable power of attorney.--

19         (1)  CREATION OF DURABLE POWER OF ATTORNEY.--A durable

20  power of attorney is a written power of attorney by which a

21  principal designates another as the principal's attorney in

22  fact. The durable power of attorney must be in writing, must

23  be executed with the same formalities required for the

24  conveyance of real property by Florida law, and must contain

25  the words: "This durable power of attorney is not affected by

26  subsequent incapacity of the principal except as provided in

27  s. 709.08, Florida Statutes"; or similar words that show the

28  principal's intent that the authority conferred is exercisable

29  notwithstanding the principal's subsequent incapacity, except

30  as otherwise provided by this section.  The durable power of

31  attorney is exercisable as of the date of execution; however,

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 1  if the durable power of attorney is conditioned upon the

 2  principal's lack of capacity to manage property as defined in

 3  s. 744.102(12)(a) s. 744.102(11)(a), the durable power of

 4  attorney is exercisable upon the delivery of affidavits in

 5  paragraphs (4)(c) and (d) to the third party.

 6         Section 31.  Subsection (3) of section 744.1085,

 7  Florida Statutes, is amended to read:

 8         744.1085  Regulation of professional guardians;

 9  application; bond required; educational requirements.--

10         (3)  Each professional guardian defined in s.

11  744.102(17) s. 744.102(16) and public guardian must receive a

12  minimum of 40 hours of instruction and training. Each

13  professional guardian must receive a minimum of 16 hours of

14  continuing education every 2 calendar years after the year in

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

16  instruction and education must be completed through a course

17  approved or offered by the Statewide Public Guardianship

18  Office. The expenses incurred to satisfy the educational

19  requirements prescribed in this section may not be paid with

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

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

22         Section 32.  For the purpose of incorporating the

23  amendment made by this act to section 744.3215, Florida

24  Statutes, in a reference thereto, subsection (4) of section

25  117.107, Florida Statutes, is reenacted to read:

26         117.107  Prohibited acts.--

27         (4)  A notary public may not take the acknowledgment of

28  or administer an oath to a person whom the notary public

29  actually knows to have been adjudicated mentally incapacitated

30  by a court of competent jurisdiction, where the acknowledgment

31  or oath necessitates the exercise of a right that has been

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 1  removed pursuant to s. 744.3215(2) or (3), and where the

 2  person has not been restored to capacity as a matter of

 3  record.

 4         Section 33.  Subsection (13) of section 318.18, Florida

 5  Statutes, is amended to read:

 6         318.18  Amount of civil penalties.--The penalties

 7  required for a noncriminal disposition pursuant to s. 318.14

 8  are as follows:

 9         (13)  In addition to any penalties imposed for

10  noncriminal traffic infractions under pursuant to this chapter

11  or imposed for criminal violations listed in s. 318.17, a

12  board of county commissioners or any unit of local government

13  which is consolidated as provided by s. 9, Art. VIII of the

14  State Constitution of 1885, as preserved by s. 6(e), Art. VIII

15  of the Constitution of 1968:

16         (a)1.  May impose by ordinance a surcharge of up to $15

17  for any infraction or violation to fund state court

18  facilities. The court may shall not waive this surcharge.

19         2.  May impose an additional $15 surcharge to fund the

20  county's participation in the public guardianship program

21  under chapter 744. Imposition of this surcharge must be by

22  vote of two-thirds of the board of county commissioners or

23  after a referendum approved by the electors of the county.

24  Before imposing the surcharge, the county commission must

25  demonstrate that available revenue sources are insufficient to

26  fund such participation. The court may not waive this

27  surcharge.

28         (b)  That imposed increased fees or service charges by

29  ordinance under s. 28.2401, s. 28.241, or s. 34.041 for the

30  purpose of securing payment of the principal and interest on

31  bonds issued by the county before July 1, 2003, to finance

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 1  state court facilities, may impose by ordinance a surcharge

 2  for any infraction or violation for the exclusive purpose of

 3  securing payment of the principal and interest on bonds issued

 4  by the county before July 1, 2003, to fund state court

 5  facilities until the date of stated maturity. The court may

 6  shall not waive this surcharge. The Such surcharge may not

 7  exceed an amount per violation calculated as the quotient of

 8  the maximum annual payment of the principal and interest on

 9  the bonds as of July 1, 2003, divided by the number of traffic

10  citations for county fiscal year 2002-2003 certified as paid

11  by the clerk of the court of the county. The Such quotient

12  shall be rounded up to the next highest dollar amount. The

13  bonds may be refunded only if savings will be realized on

14  payments of debt service and the refunding bonds are scheduled

15  to mature on the same date or before the bonds being refunded.

16  

17  A county may not impose both of the surcharges authorized

18  under both paragraphs (a) and (b) concurrently.

19         Section 34.  Section 938.065, Florida Statutes, is

20  created to read:

21         938.065  Additional cost for public guardianship

22  programs.--

23         (1)  In addition to any fine prescribed by law for any

24  misdemeanor offense, there is assessed as a court cost an

25  additional surcharge of $18 on each fine, which shall be

26  imposed by each county and circuit court and collected by the

27  clerk of the court together with the fine.

28         (2)  The clerk of the court shall collect and forward,

29  on a monthly basis, all costs assessed under this section,

30  less $3 per assessment as a service charge to be retained by

31  the clerk, to the Department of Revenue for deposit into the

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 1  General Revenue Fund. The funds collected shall be used

 2  exclusively to fund public guardianship programs in this

 3  state.

 4         Section 35.  This act shall take effect July 1, 2005.

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 1            *****************************************

 2                          SENATE SUMMARY

 3    Revises various provisions of guardianship law. Provides
      that in the event of death, the surviving parent is the
 4    sole natural guardian of the minor. Prohibits a natural
      guardian from using the property of the ward for the
 5    guardian's benefit without a court order. Permits a court
      to appoint a guardian ad litem to represent a minor's
 6    interest in certain claims that exceed a specified
      amount. Requires a court to appoint a guardian ad litem
 7    to represent a minor's interest in certain claims that
      exceed a specified amount. Requires a court to award
 8    reasonable fees and costs to the guardian ad litem.
      Increases the time an emergency temporary guardian may
 9    serve from 60 to 90 days. Specifies the persons who may
      file a petition for a standby guardian. Requires that
10    notice of hearing be served on the ward's next of kin.
      Clarifies when a standby guardian may assume the duties
11    of guardian. Requires each standby guardian to submit to
      credit and criminal background checks. Reduces the time
12    in which a guardian must complete the education courses
      from 1 year to 4 months. Requires the court to appoint an
13    attorney from a specified registry. Requires appointed
      attorneys to complete certain training programs. Provides
14    that a member of the examining committee may not be
      related to or associated with certain persons. Requires
15    each member of an examining committee to file an
      affidavit stating that he or she has completed the
16    mandatory training. Requires the voluntary guardian to
      include certain information in the annual report and the
17    notice to terminate a voluntary guardianship. Requires
      that the verified inventory include information on any
18    trust to which a ward is a beneficiary. Requires that the
      annual report of the guardian be filed on or before April
19    1 of each year. Provides for an annual guardianship plan
      for wards who are minors. Requires certain documentation
20    for the annual accounting. Requires that the verified
      inventory and the accountings be audited within a
21    specified time period. Removes the state attorney from
      the list of persons to be served a notice of a hearing on
22    restoration of capacity. Provides that a ward who is a
      minor need not be served with the final report of a
23    removed guardian. Provides that final reports for a
      deceased ward be filed at a specified time. Exempts a
24    public guardian from paying court-related fees and
      charges. Authorizes a county to impose a surcharge on
25    certain civil penalties to fund local participation in
      the public guardianship program. Prescribes prerequisites
26    for imposing the surcharge and a limit on the surcharge.
      Requires that a surcharge of $18 be assessed against all
27    misdemeanor offenses. Provides that the clerk of the
      court may retain a service charge. Directs that the funds
28    collected be used to fund public guardianship programs.
      (See bill for details.)
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