Senate Bill sb1958c2

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    Florida Senate - 2005                    CS for CS for SB 1958

    By the Committees on Children and Families; Judiciary; and
    Senators Saunders and Fasano




    586-2272-05

  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.; authorizing revocation or suspension of a

  6         guardian's registration; providing that the

  7         Statewide Public Guardianship Office need not

  8         review credit and criminal investigations from

  9         a college or university before registering the

10         institution as a professional guardian;

11         amending s. 744.301, F.S.; providing that in

12         the event of death, the surviving parent is the

13         sole natural guardian of a minor; prohibiting a

14         natural guardian from using the property of the

15         ward for the guardian's benefit without a court

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

17         a court to appoint a guardian ad litem to

18         represent a minor's interest in certain claims

19         that exceed a specified amount; requiring a

20         court to appoint a guardian ad litem to

21         represent a minor's interest in certain claims

22         that exceed a specified amount; providing that

23         a court need not appoint a guardian ad litem

24         under certain circumstances; requiring a court

25         to award reasonable fees and costs to the

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

27         increasing the time an emergency temporary

28         guardian may serve to 90 days; authorizing an

29         extension; requiring an emergency temporary

30         guardian to file a final report; providing for

31         the contents of the final report; amending s.

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 1         744.304, F.S.; specifying the persons who may

 2         file a petition for a standby guardian;

 3         requiring that notice of the appointment

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

 5         clarifying when a standby guardian may assume

 6         the duties of guardian; requiring that each

 7         standby guardian submit to credit and criminal

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

 9         providing a cross-reference; amending s.

10         744.3135, F.S.; providing procedures for

11         completing a guardians' criminal history record

12         check; authorizing a guardian to use electronic

13         fingerprinting equipment that is available for

14         criminal history record checks of public

15         employees; providing that a guardian need not

16         be rescreened if he or she uses certain

17         electronic fingerprinting equipment; requiring

18         the Department of Law Enforcement to retain

19         electronically submitted fingerprints and to

20         enter them into the statewide automated

21         fingerprint identification system; requiring

22         the department to search all fingerprint cards

23         received from each guardian and each employee

24         of such guardian against fingerprints retained

25         in the statewide automated fingerprint

26         identification system; requiring a guardian to

27         pay an annual fee to the clerk of court for the

28         background investigation; requiring a guardian

29         and each employee of such guardian to complete

30         an investigation of his or her credit history;

31         requiring the Statewide Public Guardianship

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 1         Office to adopt a rule for credit

 2         investigations of guardians; authorizing the

 3         office to inspect the results of any criminal

 4         or credit investigation; amending s. 744.3145,

 5         F.S.; reducing the time in which a guardian

 6         must complete the education courses from 1 year

 7         to 4 months; amending s. 744.3215, F.S.;

 8         providing that an incapacitated person retains

 9         the right to receive necessary services and

10         rehabilitation necessary to maximize the

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

12         744.331, F.S.; requiring that the court appoint

13         an attorney from a specified registry;

14         requiring attorneys to complete certain

15         training programs; providing that a member of

16         the examining committee may not be related to

17         or associated with certain persons; prohibiting

18         a person who served on an examining committee

19         from being appointed as the guardian; requiring

20         each member of an examining committee to file

21         an affidavit stating that he or she has

22         completed the mandatory training; providing for

23         training programs; requiring each member to

24         report the time and date that he or she

25         examined the person alleged to be

26         incapacitated; providing for an award of

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

28         requiring the voluntary guardian to include

29         certain information in the annual report;

30         requiring that certain specified information be

31         included in the notice to terminate a voluntary

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

 2         requiring a professional guardian to ensure

 3         that each of his or her wards is personally

 4         visited at least quarterly; providing for the

 5         assessment of certain conditions during the

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

 7         requiring that the verified inventory include

 8         information on any trust to which a ward is a

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

10         requiring that the annual report of the

11         guardian be filed on or before April 1 of each

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

13         that the annual guardianship plan include

14         information on the mental condition of the

15         ward; providing for an annual guardianship plan

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

17         F.S.; providing that property of or a trust

18         benefiting the ward which is not under the

19         control of the guardian is not subject to

20         annual accounting; requiring certain

21         documentation for the annual accounting;

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

23         provision prohibiting the clerk of court from

24         having responsibility for monitoring or

25         auditing accounts in certain cases; amending s.

26         744.368, F.S.; requiring that the verified

27         inventory and the accountings be audited within

28         a specified time period; amending s. 744.441,

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

30         for assets of a ward transferred to a trust;

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

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 1         guardian may designate a surrogate guardian to

 2         exercise the powers of the guardian if the

 3         guardian is unavailable to act; requiring the

 4         surrogate guardian to be a professional

 5         guardian; providing the procedures to be used

 6         in appointing a surrogate guardian; providing

 7         the duties of a surrogate guardian; requiring

 8         the guardian to be liable for the acts of the

 9         surrogate guardian; authorizing the guardian to

10         terminate the services of the surrogate

11         guardian by filing a written notice of the

12         termination with the court; amending s.

13         744.464, F.S.; removing the state attorney from

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

15         hearing on restoration of capacity; removing a

16         time limitation on the filing of a suggestion

17         of capacity; amending s. 744.474, F.S.;

18         revising the circumstances under which a

19         guardian may be removed; providing a rebuttable

20         presumption that certain relatives act in the

21         best interests of the ward; amending s.

22         744.511, F.S.; providing that a ward who is a

23         minor need not be served with the final report

24         of a removed guardian; amending s. 744.527,

25         F.S.; providing that final reports for a

26         deceased ward be filed at a specified time;

27         amending s. 744.528, F.S.; providing for a

28         notice of the hearing for objections to a

29         report filed by a guardian; amending s.

30         744.708, F.S.; requiring a public guardian to

31         ensure that each of his or her wards is

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 1         personally visited at least quarterly;

 2         providing for the assessment of certain

 3         conditions during the personal visit; amending

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

 5         care decision" to include informed consent for

 6         mental health treatment services; amending s.

 7         28.345, F.S.; exempting a public guardian from

 8         paying court-related fees and charges; amending

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

10         conforming cross-references; reenacting s.

11         117.107(4), F.S., relating to prohibited acts

12         of a notary public, to incorporate the

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

14         reference thereto; providing an effective date.

15  

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

17  

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  

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 1         (11)(10)  "Guardian advocate" means a person appointed

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

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

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

 5  appointed for a person determined incompetent to consent to

 6  treatment under s. 394.4598.

 7         (12)(11)  "Incapacitated person" means a person who has

 8  been judicially determined to lack the capacity to manage at

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

10  essential health and safety requirements of the such person.

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

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

13  personal property, intangible property, business property,

14  benefits, and income.

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

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

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

18  other care without which serious and imminent physical injury

19  or illness is more likely than not to occur.

20         (13)(12)  "Minor" means a person under 18 years of age

21  whose disabilities have not been removed by marriage or

22  otherwise.

23         (14)(13)  "Next of kin" means those persons who would

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

25  the such person were deceased and includes the lineal

26  descendants of the such ward or alleged incapacitated person.

27         (15)(14)  "Nonprofit corporate guardian" means a

28  nonprofit corporation organized for religious or charitable

29  purposes and existing under the laws of this state.

30  

31  

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 1         (16)(15)  "Preneed guardian" means a person named in a

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

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

 4         (17)(16)  "Professional guardian" means any guardian

 5  who receives or has at any time received compensation for

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

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

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

 9  professional guardian. A public guardian shall be considered a

10  professional guardian for purposes of regulation, education,

11  and registration.

12         (18)(17)  "Property" means both real and personal

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

14  subject of ownership.

15         (19)(18)  "Standby guardian" means a person empowered

16  to assume the duties of guardianship upon the death or

17  adjudication of incapacity of the last surviving natural or

18  appointed guardian.

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

20  according to s. 744.442.

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

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

23  (3).

24         (22)(20)  "Ward" means a person for whom a guardian has

25  been appointed.

26         Section 2.  Subsections (5) and (10) of section

27  744.1083, Florida Statutes, are amended to read:

28         744.1083  Professional guardian registration.--

29         (5)  The executive director of the office may deny

30  registration to a professional guardian if the executive

31  director determines that the guardian's proposed registration,

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 1  including the guardian's credit or criminal investigations,

 2  indicates that registering the professional guardian would

 3  violate any provision of this chapter. If a guardian who is

 4  currently registered with the office violates a provision of

 5  this chapter, the executive director of the office may suspend

 6  or revoke the guardian's registration. If the executive

 7  director denies registration to a professional guardian or

 8  suspends or revokes a professional guardian's registration,

 9  the Statewide Public Guardianship Office must send written

10  notification of the denial, suspension, or revocation to the

11  chief judge of each judicial circuit in which the guardian was

12  serving on the day of the office's decision to deny, suspend,

13  or revoke the registration.

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

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

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

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

18  college or university elects to register as a professional

19  guardian under this subsection, the requirements of

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

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

22  identification number of the registrant.

23         Section 3.  Section 744.301, Florida Statutes, is

24  amended to read:

25         744.301  Natural guardians.--

26         (1)  The mother and father jointly are natural

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

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

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

30  natural guardianship shall pass to the surviving parent, and

31  the right shall continue even though the surviving parent

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

 2  the natural guardianship belongs shall belong to the parent to

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

 4  given joint custody, then both shall continue as natural

 5  guardians.  If the marriage is dissolved and neither the

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

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

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

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

10  child unless a court of competent jurisdiction enters an order

11  stating otherwise.

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

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

14  consummate a settlement of any claim or cause of action

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

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

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

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

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

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

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

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

23  $15,000, without appointment, authority, or bond.

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

25  the benefit of the ward under the powers specified provided

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

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

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

29  the guardian's support obligation to the ward.

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

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

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 1  the gross settlement for the claim of the minor exceeds

 2  $15,000, the court may, prior to the approval of the

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

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

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

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

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

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

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

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

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

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

13  of the minor has previously been appointed and has no

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

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

16  interests, unless the court determines that the appointment is

17  otherwise necessary.

18         (b)  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 4.  Section 744.3025, Florida Statutes, is

22  created to read:

23         744.3025  Claims of minors.--

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

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

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

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

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

29  settlement of the claim exceeds $15,000.

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

31  represent the minor's interest before approving a settlement

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

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

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

 4  without the necessity of bond or notice.

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

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

 7  Rules.

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

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

10  appointed and that guardian has no potential adverse interest

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

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

13  interests of the minor.

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

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

16  gross proceeds of the settlement.

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

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

19  section, to read:

20         744.3031  Emergency temporary guardianship.--

21         (3)  The authority of an emergency temporary guardian

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

23  guardian is appointed, whichever occurs first.  The authority

24  of the emergency temporary guardian may be extended for an

25  additional 90 30 days upon a showing that the emergency

26  conditions still exist.

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

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

29  emergency temporary guardianship.

30         (b)  An emergency temporary guardianship is a guardian

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

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

 2  the date the letters of emergency temporary guardianship were

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

 4  account of the receipts and disbursements of all the property

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

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

 7  the emergency temporary guardianship. If the emergency

 8  temporary guardian becomes the successor guardian of the

 9  property, the final report must satisfy the requirements of

10  the initial guardianship report for the guardian of the

11  property as provided in s. 744.362.

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

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

14  of the temporary guardian with regard to residential

15  placement, medical condition, mental health and rehabilitative

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

17  of the authority granted to the temporary guardian in the

18  letters of guardianship. If the emergency temporary guardian

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

20  satisfy the requirements of the initial report for a guardian

21  of the person as stated in s. 744.362.

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

23  temporary guardianship shall be served on the successor

24  guardian and the ward.

25         Section 6.  Section 744.304, Florida Statutes, is

26  amended to read:

27         744.304  Standby guardianship.--

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

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

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

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

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

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

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

 4  standby guardian does not serve or ceases to serve after

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

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

 7  guardian currently serving unless the notice is waived in

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

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

10  of the last surviving parent of the minor.

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

12  standby guardian of the person or property of an incapacitated

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

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

15         (3)  The standby guardian or alternate shall be

16  empowered to assume the duties of guardianship his or her

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

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

19  incapacity of the last surviving natural guardian or adoptive

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

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

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

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

24  issuance of letters of guardianship.  If the ward

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

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

27  confirming the appointment of the standby guardian, unless the

28  ward has previously been found to be incapacitated.

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

30  guardian, a standby guardian shall petition for confirmation

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

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

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

 3  Each guardian so confirmed shall file an oath in accordance

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

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

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

 7  manner provided in s. 744.345.

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

 9  guardian, the court shall have jurisdiction over the guardian

10  and the ward.

11         Section 7.  Section 744.3115, Florida Statutes, is

12  amended to read:

13         744.3115  Advance directives for health care.--In each

14  proceeding in which a guardian is appointed under this

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

16  incapacity, has executed any valid advance directive under

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

18  the court shall specify in its order and letters of

19  guardianship what authority, if any, the guardian shall

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

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

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

23  revoke the authority of the surrogate to make health care

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

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

26         Section 8.  Section 744.3135, Florida Statutes, is

27  amended to read:

28         744.3135  Credit and criminal investigation.--

29         (1)  The court may require a nonprofessional guardian

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

31  employees of a professional guardian who have a fiduciary

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

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

 3  undergo level 2 background screening as required under s.

 4  435.04. If a credit or criminal investigation is required, the

 5  court must consider the results of any investigation before

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

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

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

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

10  the results of any investigation when reappointing a guardian.

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

12  appointed by the court and retain in the file documentation of

13  the result of any investigation conducted under this section.

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

15  of up to $7.50 for handling and processing professional

16  guardian files.

17         (2)  The court and the Statewide Public Guardianship

18  Office shall accept the satisfactory completion of a criminal

19  history record check by any method described in this

20  subsection. A guardian satisfies the requirements of this

21  section by undergoing:

22         (a)  An electronic fingerprint criminal history record

23  check. A guardian may use any electronic fingerprinting

24  equipment used for criminal history record checks of public

25  employees. The guardian shall pay the actual costs incurred by

26  the Federal Bureau of Investigation or the Department of Law

27  Enforcement for the criminal history record check. The agency

28  that operates the equipment used by the guardian may charge

29  the guardian an additional fee, not to exceed $10, for the use

30  of the equipment. The agency completing the investigation must

31  immediately send the results of the criminal history record

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 1  check to the clerk of the court and the Statewide Public

 2  Guardianship Office. The clerk of the court shall maintain the

 3  results in the guardian's file and shall make the results

 4  available to the court; or

 5         (b)  A criminal history record check using a

 6  fingerprint card. The clerk of the court shall obtain

 7  fingerprint cards from the Federal Bureau of Investigation and

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

 9  required shall have his or her fingerprints taken and forward

10  the proper fingerprint card along with the necessary fee to

11  the Florida Department of Law Enforcement for processing. The

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

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

14  guardian files. The results of the fingerprint card criminal

15  history record checks shall be forwarded to the clerk of the

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

17  guardian file and shall make the results available to the

18  court and the Statewide Public Guardianship Office. If credit

19  or criminal investigations are required, the court must

20  consider the results of the investigations before appointing a

21  guardian. Professional guardians and all employees of a

22  professional guardian who have a fiduciary responsibility to a

23  ward, so appointed, must resubmit, at their own expense, to an

24  investigation of credit history, and undergo level 1

25  background screening as required under s. 435.03, at least

26  every 2 years after the date of their appointment. At any

27  time, the court may require guardians or their employees to

28  submit to an investigation of credit history and undergo level

29  1 background screening as required under s. 435.03. The court

30  must consider the results of these investigations in

31  reappointing a guardian.

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

 2  professional guardian who has a fiduciary responsibility to a

 3  ward, must complete, at his or her own expense, a level 2

 4  background screening as set forth in s. 435.04, before and at

 5  least once every 5 years after the date the guardian is

 6  appointed. A professional guardian, and each employee of a

 7  professional guardian who has a fiduciary responsibility to a

 8  ward, must complete, at his or her own expense, a level 1

 9  background screening as set forth in s. 435.03, at least once

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

11  However, a person is not required to resubmit fingerprints for

12  a criminal history record check if he or she has been screened

13  using electronic fingerprinting equipment and the fingerprints

14  are retained by the Department of Law Enforcement in order to

15  notify the clerk of the court of any crime charged against the

16  person in the State of Florida or elsewhere as appropriate.

17         (b)  Effective December 15, 2005, all fingerprints

18  electronically submitted to the Department of Law Enforcement

19  under this section shall be retained by the Department of Law

20  Enforcement in a manner provided by rule and entered in the

21  statewide automated fingerprint identification system

22  authorized by s. 943.05(2)(b). The fingerprints shall

23  thereafter be available for all purposes and uses authorized

24  for arrest fingerprint cards entered in the statewide

25  automated fingerprint identification system under s. 943.051.

26         (c)  Effective December 15, 2005, the Department of Law

27  Enforcement shall search all arrest fingerprint cards received

28  under s. 943.051 against the fingerprints retained in the

29  statewide automated fingerprint identification system under

30  paragraph (b). Any arrest record that is identified with the

31  fingerprints of a person described in this paragraph must be

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 1  reported as soon as possible to the clerk of court. The clerk

 2  of court must forward any arrest record received for a

 3  professional guardian to the Statewide Public Guardianship

 4  Office within 5 days. Each guardian who elects to submit

 5  fingerprint information electronically shall participate in

 6  this search process by paying an annual fee to the clerk of

 7  court and by informing the clerk of court of any change in the

 8  status of his or her guardianship appointment. The amount of

 9  the annual fee to be imposed upon each clerk of court for

10  performing these searches and the procedures for the retention

11  of guardian fingerprints and the dissemination of search

12  results shall be established by rule of the Department of Law

13  Enforcement. The fee may be borne by the clerk of court or the

14  guardian, but may not exceed $10.

15         (4)(a)  A professional guardian, and each employee of a

16  professional guardian who has a fiduciary responsibility to a

17  ward, must complete, at his or her own expense, an

18  investigation of the credit history of the person before and

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

20  appointment.

21         (b)  The Statewide Public Guardianship Office shall

22  adopt a rule detailing the acceptable methods for completing a

23  credit investigation under this section. If appropriate, the

24  Statewide Public Guardianship Office may administer credit

25  investigations. If the office chooses to administer the credit

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

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

28  administration of a credit investigation.

29         (5)  The Statewide Public Guardianship Office may

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

31  investigation of a public or professional guardian conducted

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

 2  credit or criminal history record results in the guardian's

 3  registration file. If the results of a credit or criminal

 4  investigation of a public or professional guardian have not

 5  been forwarded to the Statewide Public Guardianship Office by

 6  the investigating agency, the clerk of the court shall forward

 7  copies of the results of the investigations to the office upon

 8  receiving them.

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

10  investigation of any public or professional guardian, the

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

12  Statewide Public Guardianship Office in order that the results

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

14         (6)(2)  The requirements of this section do does not

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

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

17  banking corporation or state savings association authorized

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

19  national banking association or federal savings and loan

20  association authorized and qualified to exercise fiduciary

21  powers in this state.

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

23  Statutes, is amended to read:

24         744.3145  Guardian education requirements.--

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

26  guardian must complete the required number of hours of

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

28  her appointment as guardian. The instruction and education

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

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

31  organization. Court-approved organizations may include, but

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

 2  organizations, and the local bar association or The Florida

 3  Bar.

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

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

 6  amended to read:

 7         744.3215  Rights of persons determined incapacitated.--

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

 9  incapacitated retains the right:

10         (i)  To receive necessary services and rehabilitation

11  necessary to maximize the quality of life.

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

13  order determining incapacity but not delegated to a guardian

14  include the right:

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

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

17  approval.

18         (b)  To vote.

19         (c)  To personally apply for government benefits.

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

21         (e)  To travel.

22         (f)  To seek or retain employment.

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

24  744.331, Florida Statutes, are amended to read:

25         744.331  Procedures to determine incapacity.--

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

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

28  incapacitated person, the court must appoint an attorney who

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

30  Article V indigent services committee. Appointments must be

31  

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 1  made on a rotating basis, taking into consideration conflicts

 2  arising under this chapter.

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

 4  person alleged to be incapacitated in all cases involving a

 5  petition for adjudication of incapacity.  The alleged

 6  incapacitated person may substitute her or his own attorney

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

 8  approval.

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

10  incapacitated person may not serve as guardian of the alleged

11  incapacitated person or as counsel for the guardian of the

12  alleged incapacitated person or the petitioner.

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

14  be appointed by a court for incapacity and guardianship

15  proceedings must have completed a minimum of 8 hours of

16  education in guardianship. A court may waive the initial

17  training requirement for an attorney who has served as a

18  court-appointed attorney in incapacity proceedings or as an

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

20         (3)  EXAMINING COMMITTEE.--

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

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

23  examining committee consisting of three members. One member

24  must be a psychiatrist or other physician.  The remaining

25  members must be either a psychologist, gerontologist, another

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

27  practitioner, licensed social worker, a person with an

28  advanced degree in gerontology from an accredited institution

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

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

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

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

 2  committee must have knowledge of the type of incapacity

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

 4  attending or family physician may not be appointed to the

 5  committee.  If the attending or family physician is available

 6  for consultation, the committee must consult with the

 7  physician.  Members of the examining committee may not be

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

 9  petitioner, with counsel for the petitioner or the proposed

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

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

12  governmental agency that has custody of, or furnishes,

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

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

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

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

17  committee must be able to communicate, either directly or

18  through an interpreter, in the language that the alleged

19  incapacitated person speaks or to communicate in a medium

20  understandable to the alleged incapacitated person if she or

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

22  notice of the appointment to each person appointed no later

23  than 3 days after the court's appointment.

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

25  member of an examining committee to examine an alleged

26  incapacitated person may not thereafter be appointed as a

27  guardian for the person who was the subject of the

28  examination.

29         (c)  Each person appointed to an examining committee

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

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

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 1  4 months after his or her initial appointment. Each year, the

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

 3  qualified to be members of the examining committee.

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

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

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

 7  period after the initial training. The initial training and

 8  continuing education program must be developed under the

 9  supervision of the Statewide Public Guardianship Office, in

10  consultation with the Florida Conference of Circuit Court

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

12  sections of The Florida Bar, the Florida State Guardianship

13  Association, and the Florida Guardianship Foundation. The

14  court may waive the initial training requirement for a person

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

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

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

18  person must first obtain the approval of the chief judge

19  before taking an Internet or video course.

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

21  examine the person. Each The examining committee member must

22  shall determine the alleged incapacitated person's ability to

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

24  the examination, each the examining committee member must

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

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

27  plans, school records, and psychological and psychosocial

28  reports voluntarily offered for use by the alleged

29  incapacitated person. Each member of the examining committee

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

31  

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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 or any trust of which the ward is a

12  beneficiary but which is not under the control or

13  administration of the guardian.

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

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

16  where the cash is deposited.

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

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

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

20  preserve all evidence of payment the receipts and canceled

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

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

23  payment checks, and substantiating papers need not be filed

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

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

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

27         Section 18.  Section 744.3679, Florida Statutes, is

28  amended to read:

29         744.3679  Simplified accounting procedures in certain

30  cases.--

31  

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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. Notwithstanding the provisions of s.

16  737.201(2), and unless otherwise ordered, the court shall

17  retain continuing supervisory jurisdiction over any trust so

18  created or amended, and over the trustee or trustees of any

19  trust so created or amended, who by accepting the trusteeship

20  or the amendment shall be deemed to have submitted personally

21  to the jurisdiction of the court for all purposes.

22         Section 21.  Section 744.442, Florida Statutes, is

23  created to read:

24         744.442  Delegation of authority.--

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

26  exercise the powers of the guardian if the guardian is

27  unavailable to act. A person designated as a surrogate

28  guardian under this section must be a professional guardian.

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

30  requesting permission to designate a surrogate guardian.

31  

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

 2  must specify the name and business address of the surrogate

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

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

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

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

 7  surrogate guardian must file with the court an oath swearing

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

 9  delegated. The court may require the surrogate guardian to

10  post a bond.

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

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

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

14  may terminate the authority of the surrogate guardian by

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

16         (4)  The surrogate guardian is subject to the

17  jurisdiction of the court as if appointed to serve as

18  guardian.

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

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

21  are amended to read:

22         744.464  Restoration to capacity.--

23         (2)  SUGGESTION OF CAPACITY.--

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

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

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

27  attorney, and any other interested persons designated by the

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

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

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

31  capacity.

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

 2  examination suggests that full restoration is not appropriate,

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

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

 5  the ward.

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

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

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

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

10  directed by the court.

11         (4)  TIME LIMITATION FOR FILING SUGGESTION OF

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

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

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

15  shown.

16         Section 23.  Subsection (19) of section 744.474,

17  Florida Statutes, is amended to read:

18         744.474  Reasons for removal of guardian.--A guardian

19  may be removed for any of the following reasons, and the

20  removal shall be in addition to any other penalties prescribed

21  by law:

22         (19)  Upon a showing by a person who did not receive

23  notice of the petition for adjudication of incapacity, when

24  such notice is required, or who is related to the ward within

25  the relationships specified for nonresident relatives in ss.

26  744.309(2) and 744.312(2) and who has not previously been

27  rejected by the court as a guardian that:

28         (a)  the current guardian is not a family member; and

29  subsection (20) applies, the court may remove the current

30  guardian and appoint the petitioner, or such person as the

31  

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 1  court deems in the best interest of the ward, as guardian of

 2  the person or of the property, or both.

 3         (20)(b)  Removal of the current guardian is in the best

 4  interest of the ward, the court may remove the current

 5  guardian and appoint the petitioner, or such person as the

 6  court deems in the best interest of the ward, either as

 7  guardian of the person or of the property, or both.

 8  

 9  In determining whether a guardian who is related by blood or

10  marriage to the ward is to be removed, there shall be a

11  rebuttable presumption that the guardian is acting in the best

12  interests of the ward.

13         Section 24.  Section 744.511, Florida Statutes, is

14  amended to read:

15         744.511  Accounting upon removal.--A removed guardian

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

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

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

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

20  determined to be totally incapacitated.

21         Section 25.  Section 744.527, Florida Statutes, is

22  amended to read:

23         744.527  Final reports and application for discharge;

24  hearing.--

25         (1)  When the court terminates the guardianship,

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

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

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

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

30  letters of administration or letters of curatorship. If no

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

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 1  made full and complete distribution to the person entitled and

 2  has otherwise faithfully discharged his or her duties, the

 3  court shall approve the final report.  If objections are

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

 5  provided for a hearing on objections to annual guardianship

 6  reports.

 7         (2)  The guardian applying for discharge may is

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

 9  sufficient amount to pay the final costs of administration,

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

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

12  returns and the order of discharge.

13         Section 26.  Subsection (3) of section 744.528, Florida

14  Statutes, is amended to read:

15         744.528  Discharge of guardian named as personal

16  representative.--

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

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

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

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

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

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

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

24         Section 27.  Subsection (6) of section 744.708, Florida

25  Statutes, is amended to read:

26         744.708  Reports and standards.--

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

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

29  public guardian or by a professional staff person of the

30  public guardian at least once each calendar quarter four times

31  

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

 2  professional staff person shall assess:

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

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

 5  situation; and

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

 7  necessity for continuation of existing services, taking into

 8  consideration all aspects of social, psychological,

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

10         Section 28.  Paragraph (a) of subsection (5) of section

11  765.101, Florida Statutes, is amended to read:

12         765.101  Definitions.--As used in this chapter:

13         (5)  "Health care decision" means:

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

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

16  life-prolonging procedures and mental health treatment, unless

17  otherwise stated in the advance directives.

18         Section 29.  Section 28.345, Florida Statutes, is

19  amended to read:

20         28.345  Exemption from court-related fees and

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

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

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

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

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

26  circuit courts.

27         Section 30.  Paragraph (c) of subsection (8) of section

28  121.091, Florida Statutes, is amended to read:

29         121.091  Benefits payable under the system.--Benefits

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

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

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 1  begun participation in the Deferred Retirement Option Program

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

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

 4  department may cancel an application for retirement benefits

 5  when the member or beneficiary fails to timely provide the

 6  information and documents required by this chapter and the

 7  department's rules. The department shall adopt rules

 8  establishing procedures for application for retirement

 9  benefits and for the cancellation of such application when the

10  required information or documents are not received.

11         (8)  DESIGNATION OF BENEFICIARIES.--

12         (c)  Notwithstanding the member's designation of

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

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

15  notwithstanding the provisions of the trust, benefits shall be

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

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

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

19         Section 31.  Subsection (1) of section 709.08, Florida

20  Statutes, is amended to read:

21         709.08  Durable power of attorney.--

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

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

24  principal designates another as the principal's attorney in

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

26  be executed with the same formalities required for the

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

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

29  subsequent incapacity of the principal except as provided in

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

31  principal's intent that the authority conferred is exercisable

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 1  notwithstanding the principal's subsequent incapacity, except

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

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

 4  if the durable power of attorney is conditioned upon the

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

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

 7  attorney is exercisable upon the delivery of affidavits in

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

 9         Section 32.  Subsection (3) of section 744.1085,

10  Florida Statutes, is amended to read:

11         744.1085  Regulation of professional guardians;

12  application; bond required; educational requirements.--

13         (3)  Each professional guardian defined in s.

14  744.102(17) s. 744.102(16) and public guardian must receive a

15  minimum of 40 hours of instruction and training. Each

16  professional guardian must receive a minimum of 16 hours of

17  continuing education every 2 calendar years after the year in

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

19  instruction and education must be completed through a course

20  approved or offered by the Statewide Public Guardianship

21  Office. The expenses incurred to satisfy the educational

22  requirements prescribed in this section may not be paid with

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

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

25         Section 33.  For the purpose of incorporating the

26  amendment made by this act to section 744.3215, Florida

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

28  117.107, Florida Statutes, is reenacted to read:

29         117.107  Prohibited acts.--

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

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

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 1  actually knows to have been adjudicated mentally incapacitated

 2  by a court of competent jurisdiction, where the acknowledgment

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

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

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

 6  record.

 7         Section 34.  This act shall take effect July 1, 2005.

 8  

 9          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
10                            CS/SB 1958

11                                 

12  Makes technical and clarifying changes to statutory provisions
    relating to background screening for guardians and to
13  provisions relating to annual accounting requirements and
    continued court jurisdiction over certain trusts.
14  
    Provides that when the court is considering removing a
15  guardian and the guardian is a relative by blood or marriage,
    there is a rebuttable presumption that the guardian is acting
16  in the ward's best interest.

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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