HB 0457

1	A bill to be entitled
2	An act relating to guardianship; amending s. 737.2065,
3	F.S.; excepting the contesting of trust validity by
4	property guardians of incapacitated grantors from a
5	prohibition against commencing certain actions; amending
6	s. 744.107, F.S.; revising provisions relating to court
7	monitors; requiring orders of appointment and monitors'
8	reports to be served upon certain persons; authorizing the
9	court to determine which persons may inspect certain
10	orders or reports; authorizing the court to enter any
11	order necessary to protect a ward or ward's estate;
12	requiring notice and hearing; authorizing a court to
13	assess certain costs and attorney's fees under certain
14	circumstances; creating s. 744.1075, F.S.; authorizing a
15	court to appoint a court monitor on an emergency basis
16	under certain circumstances; requiring the court to make
17	certain findings; requiring the monitor to report findings
18	and recommendations; providing duties of the court
19	relating to probable cause for the emergency appointment;
20	authorizing the court to determine which persons may
21	inspect certain orders or reports; providing requirements
22	for a court order to show cause for the emergency
23	appointment; specifying a time period for a monitor's
24	authority; providing for extending such time period;
25	authorizing the court to issue certain injunctions or
26	orders for certain purposes; requiring the court to
27	provide copies of such injunctions or orders to all
28	parties; authorizing the court to impose sanctions or take
29	certain enforcement actions; providing for payment of
30	reasonable fees to the monitor; prohibiting certain
31	persons from receiving certain fees; authorizing a court
32	to assess certain costs and attorney's fees under certain
33	circumstances; amending s. 744.331, F.S.; requiring a
34	court to determine whether acceptable alternatives to
35	guardianship of incapacitated persons exist under certain
36	circumstances; requiring appointment of a guardian if no
37	alternative exists; prohibiting such appointment if an
38	alternative exists; specifying circumstances of
39	nonexistence of an alternative; preserving certain court
40	authority to determine exercise of certain powers of
41	attorney; amending s. 744.441, F.S.; requiring a court to
42	make certain findings in a ward's best interest before
43	authorizing a guardian to bring certain actions; requiring
44	a court to review certain continuing needs for guardians
45	and delegation of a ward's rights; creating s. 744.462,
46	F.S.; requiring guardians to immediately report certain
47	judicial determinations in certain guardianship
48	proceedings; requiring a court to review certain
49	continuing needs for guardians and delegation of a ward's
50	rights under certain circumstances; providing an effective
51	date.
52
53	Be It Enacted by the Legislature of the State of Florida:
54
55	Section 1.  Section 737.2065, Florida Statutes, is amended
56	to read:
57	737.2065  Trust contests.--An action to contest the
58	validity of all or part of a trust may not be commenced until
59	the trust becomes irrevocable, except this section shall not
60	prohibit such action by the guardian of the property of an
61	incapacitated grantor.
62	Section 2.  Section 744.107, Florida Statutes, is amended
63	to read:
64	744.107  Court monitors.--
65	(1)  The court may, upon inquiry from any interested person
66	or upon its own motion in any proceeding over which it has
67	jurisdiction, appoint a monitor. The court shall not appoint as
68	a monitor a family member or any person with a personal interest
69	in the proceedings. The order of appointment shall be served
70	upon the guardian, the ward, and such other persons as the court
71	may determine.
72	(2)  The monitor may investigate, seek information, examine
73	documents, or interview the ward and shall report to the court
74	his or her findings. The report shall be verified and shall be
75	served on the guardian, the ward, and such other persons as the
76	court may determine. The court shall not appoint as a monitor a
77	family member or any person with a personal interest in the
78	proceedings.
79	(3)  Unless otherwise ordered by the court, the order of
80	appointment and the report are confidential as provided by s.
81	744.1076 and subject to inspection only by the court, the clerk
82	of the court, the clerk's representative, the guardian, the
83	guardian's attorney, the ward, unless he or she is a minor or
84	has been determined to be totally incapacitated, the ward's
85	attorney, and such other persons as the court may determine.
86	(4)  If it appears from the monitor's report that further
87	action by the court to protect the interests of the ward is
88	necessary, the court shall, after a hearing with notice, enter
89	any order necessary to protect the ward or the ward's estate,
90	including amending the plan, requiring an accounting, ordering
91	production of assets, freezing assets, suspending the guardian,
92	or initiating proceedings to remove a guardian.
93	(5)  Unless otherwise prohibited by law, a monitor may be
94	allowed a reasonable fee as determined by the court and paid
95	from the property of the ward. No full-time state, county, or
96	municipal employee or officer shall be paid a fee for such
97	investigation and report. If the court finds the motion for
98	court monitor to have been filed in bad faith, the costs of the
99	proceeding, including attorney's fees, may be assessed against
100	the movant.
101	Section 3.  Section 744.1075, Florida Statutes, is created
102	to read:
103	744.1075  Emergency court monitor.--
104	(1)  A court, upon inquiry from any interested person or
105	upon its own motion, in any proceeding over which the court has
106	jurisdiction, may appoint a court monitor on an emergency basis
107	without notice. The court must specifically find that there
108	appears to be imminent danger that the physical or mental health
109	or safety of the ward will be seriously impaired or that the
110	ward's property is in danger of being wasted, misappropriated,
111	or lost unless immediate action is taken. The scope of the
112	matters to be investigated and the powers and duties of the
113	monitor must be specifically enumerated by court order. Unless
114	otherwise provided by the court, the order of appointment is
115	confidential as provided in s. 744.1076 until a finding of
116	probable cause or no probable cause is established.
117	(2)  Within 15 days after the entry of the order of
118	appointment, the monitor shall file his or her report of
119	findings and recommendations to the court. The report shall be
120	verified and may be supported by documents or other evidence.
121	(3)  Upon review of the report, the court shall determine
122	whether there is probable cause to take further action to
123	protect the person or property of the ward. If the court finds
124	no probable cause, the court shall issue an order finding no
125	probable cause and discharging the monitor.
126	(4)  Unless otherwise ordered by the court, the order of
127	appointment, the report, and the order finding no probable cause
128	are confidential as provided in s. 744.1076 and subject to
129	inspection only by the court, the clerk of the court, the
130	clerk's representative, the guardian, the guardian's attorney,
131	the ward unless he or she is a minor or has been determined to
132	be totally incapacitated, the ward's attorney, and such other
133	persons as the court may determine.
134	(5)  If the court finds probable cause, the court shall
135	issue an order to show cause directed to the guardian or other
136	respondent stating the essential facts constituting the conduct
137	charged and requiring the respondent to appear before the court
138	to show cause why the court should not take further action. The
139	order shall specify the time and place of the hearing with a
140	reasonable time to allow for the preparation of a defense after
141	service of the order.
142	(6)  The authority of a monitor appointed under this
143	section expires 60 days after the date of appointment or upon a
144	finding of no probable cause, whichever occurs first. The
145	authority of the monitor may be extended for an additional 30
146	days upon a showing that the emergency conditions still exist.
147	(7)  At any time prior to the hearing on the order to show
148	cause, the court may issue a temporary injunction, a restraining
149	order, or an order freezing assets, may suspend a guardian or
150	appoint a guardian ad litem, or may issue any other appropriate
151	order to protect the physical or mental health or safety or
152	property of the ward. A copy of all such orders or injunctions
153	shall be transmitted by the court or under its direction to all
154	parties at the time of entry of the order or injunction.
155	(8)  Following a hearing on the order to show cause, the
156	court may impose sanctions on the guardian or his or her
157	attorney or other respondent or take any other action authorized
158	by law, including entering a judgment of contempt, ordering an
159	accounting, freezing assets, referring the case to local law
160	enforcement agencies or the state attorney, filing an abuse,
161	neglect, or exploitation complaint with the Department of
162	Children and Family Services, or initiating proceedings to
163	remove a guardian.
164	(9)  Unless otherwise prohibited by law, a monitor may be
165	allowed a reasonable fee as determined by the court and paid
166	from the property of the ward. No full-time state, county, or
167	municipal employee or officer shall be paid a fee for such
168	investigation and report. If the court finds the motion for a
169	court monitor to have been filed in bad faith, the costs of the
170	proceeding, including attorney's fees, may be assessed against
171	the movant.
172	Section 4.  Paragraphs (b) and (f) of subsection (6) of
173	section 744.331, Florida Statutes, are amended to read:
174	744.331  Procedures to determine incapacity.--
175	(6)  ORDER DETERMINING INCAPACITY.--If, after making
176	findings of fact on the basis of clear and convincing evidence,
177	the court finds that a person is incapacitated with respect to
178	the exercise of a particular right, or all rights, the court
179	shall enter a written order determining such incapacity. A
180	person is determined to be incapacitated only with respect to
181	those rights specified in the order.
182	(b)  When an order is entered which determines that a
183	person is incapable of exercising delegable rights, the court
184	must consider and find whether there is an alternative to
185	guardianship that will sufficiently address the problems of the
186	incapacitated person. A guardian must be appointed to exercise
187	the incapacitated person's delegable rights unless the court
188	finds that there is an alternative. A guardian shall not be
189	appointed if the court finds that there is an alternative to
190	guardianship that will sufficiently address the problems of the
191	incapacitated person In any order declaring a person
192	incapacitated the court must find that alternatives to
193	guardianship were considered and that no alternative to
194	guardianship will sufficiently address the problems of the ward.
195	(f)  Upon the filing of a verified statement by an
196	interested person stating:
197	1.  That he or she has a good faith belief that the alleged
198	incapacitated person's trust, trust amendment, or durable power
199	of attorney is invalid; and
200	2.  A reasonable factual basis for that belief,
201
202	the trust, trust amendment, or durable power of attorney shall
203	not be deemed to be an alternative to the appointment of a
204	guardian. The appointment of a guardian shall not limit the
205	court's authority to determine that certain authority granted by
206	a durable power of attorney is to remain exercisable by the
207	attorney in fact When an order is entered which determines that
208	a person is incapable of exercising delegable rights, a guardian
209	must be appointed to exercise those rights.
210	Section 5.  Subsection (11) of section 744.441, Florida
211	Statutes, is amended to read:
212	744.441  Powers of guardian upon court approval.--After
213	obtaining approval of the court pursuant to a petition for
214	authorization to act, a plenary guardian of the property, or a
215	limited guardian of the property within the powers granted by
216	the order appointing the guardian or an approved annual or
217	amended guardianship report, may:
218	(11)  Prosecute or defend claims or proceedings in any
219	jurisdiction for the protection of the estate and of the
220	guardian in the performance of his or her duties. Before
221	authorizing a guardian to bring an action described in s.
222	737.2065, the court shall first find that the action appears to
223	be in the ward's best interests during the ward's probable
224	lifetime. If the court denies a request that a guardian be
225	authorized to bring an action described in s. 737.2065, the
226	court shall review the continued need for a guardian and the
227	extent of the need for delegation of the ward's rights.
228	Section 6.  Section 744.462, Florida Statutes, is created
229	to read:
230	744.462  Determination regarding alternatives to
231	guardianship.--Any judicial determination concerning the
232	validity of the ward's trust, trust amendment, or durable power
233	of attorney shall be promptly reported in the guardianship
234	proceeding by the guardian of the property. If the instrument
235	has been judicially determined to be valid, or if after the
236	appointment of a guardian a petition is filed alleging that
237	there is an alternative to guardianship that will sufficiently
238	address the problems of the ward, the court shall review the
239	continued need for a guardian and the extent of the need for
240	delegation of the ward's rights.
241	Section 7.  This act shall take effect upon becoming a law.

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