Senate Bill sb0064c1

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    Florida Senate - 2005                             CS for SB 64

    By the Committee on Judiciary; and Senator Campbell





    590-1066-05

  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. 744.107, F.S.;

  7         revising provisions relating to court monitors;

  8         requiring orders of appointment and monitors'

  9         reports to be served upon certain persons;

10         authorizing the court to enter any order

11         necessary to protect a ward or ward's estate;

12         requiring notice and a hearing; authorizing a

13         court to assess certain costs and attorney's

14         fees under certain circumstances; creating s.

15         744.1075, F.S.; authorizing a court to appoint

16         a court monitor on an emergency basis under

17         certain circumstances; requiring the court to

18         make certain findings; requiring the monitor to

19         report findings and recommendations; providing

20         duties of the court relating to probable cause

21         for the emergency appointment; providing

22         requirements for a court order to show cause

23         for the emergency appointment; specifying a

24         time period for a monitor's authority;

25         providing for extending such time period;

26         authorizing the court to issue certain

27         injunctions or orders for certain purposes;

28         requiring the court to provide copies of such

29         injunctions or orders to all parties;

30         authorizing the court to impose sanctions or

31         take certain enforcement actions; providing for

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    Florida Senate - 2005                             CS for SB 64
    590-1066-05




 1         payment of reasonable fees to the monitor;

 2         prohibiting certain persons from receiving

 3         certain fees; authorizing a court to assess

 4         certain costs and attorney's fees under certain

 5         circumstances; amending s. 744.331, F.S.;

 6         requiring the court to determine whether there

 7         is an alternative to guardianship if a person

 8         is determined incapable of exercising his or

 9         her delegable rights; authorizing an interested

10         person to file a verified statement indicating

11         a belief that an incapacitated person's trust,

12         trust amendment, or durable power of attorney

13         is invalid, in which case such instrument may

14         not be an alternative to the appointment of a

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

16         the court to determine whether an action

17         contesting the validity of a trust is in the

18         ward's best interests before authorizing a

19         guardian to bring such actions; creating s.

20         744.462, F.S.; requiring that the validity of a

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

22         trust amendment be reported in the guardianship

23         proceedings; requiring the court to review the

24         continued need for a guardian and delegation of

25         the ward's rights under certain conditions;

26         providing an effective date.

27  

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

29  

30         Section 1.  Section 737.2065, Florida Statutes, is

31  amended to read:

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    Florida Senate - 2005                             CS for SB 64
    590-1066-05




 1         737.2065  Trust contests.--An action to contest the

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

 3  the trust becomes irrevocable, except that this section does

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

 5  incapacitated grantor.

 6         Section 2.  Section 744.107, Florida Statutes, is

 7  amended to read:

 8         744.107  Court monitors.--

 9         (1)  The court may, upon inquiry from any interested

10  person or upon its own motion in any proceeding over which it

11  has jurisdiction, appoint a monitor. The court may not appoint

12  as a monitor a family member or any person having a personal

13  interest in the proceedings. The order of appointment shall be

14  served upon the guardian, the ward, and such other persons as

15  the court may determine.

16         (2)  The monitor may investigate, seek information,

17  examine documents, or interview the ward and shall report to

18  the court his or her findings. The report shall be verified

19  and shall be served on the guardian, the ward, and such other

20  persons as the court may determine.

21         (3)  If it appears from the monitor's report that

22  further action by the court to protect the interests of the

23  ward is necessary, the court shall, after a hearing with

24  notice, enter any order necessary to protect the ward or the

25  ward's estate, including an order amending the plan, requiring

26  an accounting, requiring the production of assets, freezing

27  assets, suspending the guardian, or removing a guardian. The

28  court shall not appoint as a monitor a family member or any

29  person with a personal interest in the proceedings.

30         (4)  Unless otherwise prohibited by law, a monitor may

31  be allowed a reasonable fee as determined by the court and

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    Florida Senate - 2005                             CS for SB 64
    590-1066-05




 1  paid from the property of the ward.  A No full-time state,

 2  county, or municipal employee or officer may not shall be paid

 3  a fee for such investigation and report. If the court finds

 4  the motion for court monitor to have been filed in bad faith,

 5  the costs of the proceeding, including attorney's fees, may be

 6  assessed against the movant.

 7         Section 3.  Section 744.1075, Florida Statutes, is

 8  created to read:

 9         744.1075  Emergency court monitor.--

10         (1)  A court, upon inquiry from any interested person

11  or upon its own motion in any proceeding over which it has

12  jurisdiction, may appoint a court monitor on an emergency

13  basis without notice. The court must specifically find that

14  there appears to be imminent danger that the physical or

15  mental health or safety of the ward will be seriously impaired

16  or that the ward's property is in danger of being wasted,

17  misappropriated, or lost unless immediate action is taken. The

18  scope of the matters to be investigated and the powers and

19  duties of the monitor must be specifically enumerated by court

20  order.

21         (2)  Within 15 days after the entry of the order of

22  appointment, the monitor shall file his or her report of

23  findings and recommendations to the court. The report must be

24  verified and may be supported by documents or other evidence.

25         (3)  Upon review of the report, the court shall

26  determine whether there is probable cause to take further

27  action to protect the person or property of the ward. If the

28  court does not find any probable cause, the court shall issue

29  an order finding no probable cause and discharge the monitor.

30         (4)  If the court finds probable cause, it shall issue

31  an order to show cause directed to the guardian or other

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    Florida Senate - 2005                             CS for SB 64
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 1  respondent stating the essential facts constituting the

 2  conduct charged and requiring the respondent to appear before

 3  the court to show cause why the court should not take further

 4  action. The order shall specify the time and place of the

 5  hearing allowing a reasonable period of time for the

 6  preparation of a defense after service of the order.

 7         (5)  The authority of a monitor appointed under this

 8  section expires 60 days after the date of appointment or upon

 9  a finding of no probable cause, whichever occurs first. The

10  authority of the monitor may be extended for an additional 30

11  days upon a showing that the emergency conditions continue to

12  exist.

13         (6)  At any time before the hearing on the order to

14  show cause, the court may issue a temporary injunction, a

15  restraining order, an order freezing assets, an order

16  suspending a guardian, an order appointing a guardian ad

17  litem, or other appropriate order to protect the physical or

18  mental health or safety or property of the ward. A copy of all

19  such orders or injunctions shall be transmitted by the court

20  or under its direction to all parties at the time of entry of

21  the order or injunction.

22         (7)  Following a hearing on the order to show cause,

23  the court may impose sanctions on the guardian or his or her

24  attorney or other respondent or take any other action

25  authorized by law, including entering a judgment of contempt,

26  ordering an accounting, freezing assets, referring the case to

27  local law enforcement agencies or the state attorney, filing a

28  complaint for abuse, neglect, or exploitation with the

29  Department of Children and Family Services, or initiating

30  proceedings to remove a guardian.

31  

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    Florida Senate - 2005                             CS for SB 64
    590-1066-05




 1         (8)  Unless otherwise prohibited by law, a court

 2  monitor may receive a reasonable fee as determined by the

 3  court and paid from the property of the ward. A full-time

 4  state, county, or municipal employee or officer may not be

 5  paid a fee for such investigation and report. If the court

 6  finds the motion for court monitor to have been filed in bad

 7  faith, the cost of the proceeding, including attorney's fees,

 8  may be assessed against the movant.

 9         Section 4.  Paragraphs (b) and (f) of subsection (6) of

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

11         744.331  Procedures to determine incapacity.--

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

13  findings of fact on the basis of clear and convincing

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

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

16  the court shall enter a written order determining such

17  incapacity. A person is determined to be incapacitated only

18  with respect to those rights specified in the order.

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

20  incapable of exercising delegable rights, the court must

21  consider and find whether there is an alternative to

22  guardianship which will sufficiently address the problems of

23  the incapacitated person. A guardian must be appointed to

24  exercise the incapacitated person's delegable rights unless

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

26  appointed if the court finds there is an alternative to

27  guardianship which will sufficiently address the problems of

28  the incapacitated person. In any order declaring a person

29  incapacitated the court must find that alternatives to

30  guardianship were considered and that no alternative to

31  

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    Florida Senate - 2005                             CS for SB 64
    590-1066-05




 1  guardianship will sufficiently address the problems of the

 2  ward.

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

 4  interested person stating:

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

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

 7  durable power of attorney is invalid; and

 8         2.  A reasonable factual basis for that belief,

 9  

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

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

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

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

14  durable power of attorney is to remain exercisable by the

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

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

17  guardian must be appointed to exercise those rights.

18         Section 5.  Subsection (11) of section 744.441, Florida

19  Statutes, is amended to read:

20         744.441  Powers of guardian upon court approval.--After

21  obtaining approval of the court pursuant to a petition for

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

23  limited guardian of the property within the powers granted by

24  the order appointing the guardian or an approved annual or

25  amended guardianship report, may:

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

27  jurisdiction for the protection of the estate and of the

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

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

30  737.2065, the court shall first find that the action appears

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

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    Florida Senate - 2005                             CS for SB 64
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 1  lifetime. If the court denies a request that a guardian be

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

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

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

 5         Section 6.  Section 744.462, Florida Statutes, is

 6  created to read:

 7         744.462  Determination regarding alternatives to

 8  guardianship.--Any judicial determination concerning the

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

10  trust amendment shall be promptly reported in the guardianship

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

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

13  appointment of a guardian a petition is filed alleging that

14  there is an alternative to guardianship which will

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

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

17  need for delegation of the ward's rights.

18         Section 7.  This act shall take effect upon becoming a

19  law.

20  

21          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
22                          Senate Bill 64

23                                 

24  The committee substitute adds provisions to the bill which
    strengthen a court's ability to investigate guardianships and
25  protect wards.  Specifically, these provisions:

26  -    authorize courts to enter any order necessary to protect
         a ward's health, safety, and property;
27  
    -    permit courts to appoint emergency court monitors without
28       notice to interested parties when a ward's health,
         safety, and property are in imminent danger; and
29  
    -    allow costs and attorney's fees to be assessed against a
30       person who files a motion in bad faith for the
         appointment of a court monitor.
31  

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