Senate Bill sb0064

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    Florida Senate - 2005                                    SB 64

    By Senator Campbell





    32-39-05

  1                      A bill to be entitled

  2         An act relating to guardianship; amending s.

  3         737.2065, F.S.; authorizing the guardian of the

  4         property of an incapacitated person to contest

  5         the validity of a trust before it becomes

  6         irrevocable; amending s. 744.311, F.S.;

  7         requiring the court to determine whether there

  8         is an alternative to guardianship if a person

  9         is determined incapable of exercising his or

10         her delegable rights; authorizing an interested

11         person to file a verified statement indicating

12         a belief that an incapacitated person's trust,

13         trust amendment, or durable power of attorney

14         is invalid, in which case such instrument may

15         not be an alternative to the appointment of a

16         guardian; amending s. 744.441, F.S.; requiring

17         the court to determine whether an action

18         contesting the validity of a trust is in the

19         ward's best interests before authorizing a

20         guardian to bring such actions; creating s.

21         744.462, F.S.; requiring that the validity of a

22         ward's durable power of attorney, trust, or

23         trust amendment be reported in the guardianship

24         proceedings; requiring the court to review the

25         continued need for a guardian and delegation of

26         the ward's rights under certain conditions;

27         providing an effective date.

28  

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

30  

31  

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    Florida Senate - 2005                                    SB 64
    32-39-05




 1         Section 1.  Section 737.2065, Florida Statutes, is

 2  amended to read:

 3         737.2065  Trust contests.--An action to contest the

 4  validity of all or part of a trust may not be commenced until

 5  the trust becomes irrevocable, except that this section does

 6  not prohibit such action by the guardian of the property of an

 7  incapacitated grantor.

 8         Section 2.  Paragraphs (b) and (f) of subsection (6) of

 9  section 744.331, Florida Statutes, are amended to read:

10         744.331  Procedures to determine incapacity.--

11         (6)  ORDER DETERMINING INCAPACITY.--If, after making

12  findings of fact on the basis of clear and convincing

13  evidence, the court finds that a person is incapacitated with

14  respect to the exercise of a particular right, or all rights,

15  the court shall enter a written order determining such

16  incapacity. A person is determined to be incapacitated only

17  with respect to those rights specified in the order.

18         (b)  When an order determines that a person is

19  incapable of exercising delegable rights, the court must

20  consider and find whether there is an alternative to

21  guardianship which will sufficiently address the problems of

22  the incapacitated person. A guardian must be appointed to

23  exercise the incapacitated person's delegable rights unless

24  the court finds there is an alternative. A guardian may not be

25  appointed if the court finds there is an alternative to

26  guardianship which will sufficiently address the problems of

27  the incapacitated person. In any order declaring a person

28  incapacitated the court must find that alternatives to

29  guardianship were considered and that no alternative to

30  guardianship will sufficiently address the problems of the

31  ward.

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    Florida Senate - 2005                                    SB 64
    32-39-05




 1         (f)  Upon the filing of a verified statement by an

 2  interested person stating:

 3         1.  That he or she has a good faith belief that the

 4  alleged incapacitated person's trust, trust amendment, or

 5  durable power of attorney is invalid; and

 6         2.  A reasonable factual basis for that belief,

 7  

 8  the trust, trust amendment, or durable power of attorney shall

 9  not be deemed to be an alternative to the appointment of a

10  guardian. The appointment of a guardian does not limit the

11  court's power to determine that certain authority granted by a

12  durable power of attorney is to remain exercisable by the

13  attorney in fact. When an order is entered which determines

14  that a person is incapable of exercising delegable rights, a

15  guardian must be appointed to exercise those rights.

16         Section 3.  Subsection (11) of section 744.441, Florida

17  Statutes, is amended to read:

18         744.441  Powers of guardian upon court approval.--After

19  obtaining approval of the court pursuant to a petition for

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

21  limited guardian of the property within the powers granted by

22  the order appointing the guardian or an approved annual or

23  amended guardianship report, may:

24         (11)  Prosecute or defend claims or proceedings in any

25  jurisdiction for the protection of the estate and of the

26  guardian in the performance of his or her duties. Before

27  authorizing a guardian to bring an action described in s.

28  737.2065, the court shall first find that the action appears

29  to be in the ward's best interests during the ward's probable

30  lifetime. If the court denies a request that a guardian be

31  authorized to bring an action described in s. 737.2065, the

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    Florida Senate - 2005                                    SB 64
    32-39-05




 1  court shall review the continued need for a guardian and the

 2  extent of the need for delegation of the ward's rights.

 3         Section 4.  Section 744.462, Florida Statutes, is

 4  created to read:

 5         744.462  Determination regarding alternatives to

 6  guardianship.--Any judicial determination concerning the

 7  validity of the ward's durable power of attorney, trust, or

 8  trust amendment shall be promptly reported in the guardianship

 9  proceeding by the guardian of the property. If the instrument

10  has been judicially determined to be valid, or if after the

11  appointment of a guardian a petition is filed alleging that

12  there is an alternative to guardianship which will

13  sufficiently address the problems of the ward, the court shall

14  review the continued need for a guardian and the extent of the

15  need for delegation of the ward's rights.

16         Section 5.  This act shall take effect upon becoming a

17  law.

18  

19            *****************************************

20                          SENATE SUMMARY

21    Authorizes a guardian of property of an incapacitated
      person to contest the validity of a trust before it
22    becomes irrevocable. Requires the court to find an
      alternative to guardianship under certain circumstances.
23    Authorizes an interested person to file a verified
      statement indicating a reasonable factual basis that the
24    incapacitated person's trust, trust amendment, or durable
      power of attorney is invalid. Provides that the
25    appointment of a guardian does not limit the court's
      power to determine certain authority granted by a durable
26    power of attorney. Requires the court to determine
      whether an action contesting the validity of a trust is
27    in the ward's best interests before authorizing a
      guardian to bring such action. Requires the validity of a
28    ward's durable power of attorney, trust, or trust
      amendment to be reported in the guardianship proceedings.
29  

30  

31  

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