HB 191

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

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