HB 0191

CS

CHAMBER ACTION

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

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