Senate Bill sb0356e1

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    SB 356                                   First Engrossed (ntc)



  1                      A bill to be entitled

  2         An act relating to guardianship; amending s.

  3         737.2065, F.S.; excepting the contesting of

  4         trust validity by property guardians of

  5         incapacitated grantors from a prohibition

  6         against commencing certain actions; amending s.

  7         744.107, F.S.; revising provisions relating to

  8         court monitors; requiring orders of appointment

  9         and monitors' reports to be served upon certain

10         persons; authorizing the court to determine

11         which persons may inspect certain orders or

12         reports; authorizing the court to enter any

13         order necessary to protect a ward or ward's

14         estate; requiring notice and hearing;

15         authorizing a court to assess certain costs and

16         attorney's fees under certain circumstances;

17         creating s. 744.1075, F.S.; authorizing a court

18         to appoint a court monitor on an emergency

19         basis under certain circumstances; requiring

20         the court to make certain findings; specifying

21         a time period for a monitor's authority;

22         providing for extending such time period;

23         requiring the monitor to report findings and

24         recommendations; providing duties of the court

25         relating to probable cause for the emergency

26         appointment; authorizing the court to determine

27         which persons may inspect certain orders or

28         reports; providing requirements for a court

29         order to show cause for the emergency

30         appointment; authorizing the court to issue

31         certain injunctions or orders for certain


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    SB 356                                   First Engrossed (ntc)



 1         purposes; requiring the court to provide copies

 2         of such injunctions or orders to all parties;

 3         authorizing the court to impose sanctions or

 4         take certain enforcement actions; providing for

 5         payment of reasonable fees to the monitor;

 6         prohibiting certain persons from receiving

 7         certain fees; authorizing a court to assess

 8         certain costs and attorney's fees under certain

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

10         requiring a court to determine whether

11         acceptable alternatives to guardianship of

12         incapacitated persons exist under certain

13         circumstances; requiring appointment of a

14         guardian if no alternative exists; prohibiting

15         such appointment if an alternative exists;

16         specifying circumstances of nonexistence of an

17         alternative; preserving certain court authority

18         to determine exercise of certain powers of

19         attorney; amending s. 744.441, F.S.; requiring

20         a court to make certain findings in a ward's

21         best interest before authorizing a guardian to

22         bring certain actions; requiring a court to

23         review certain continuing needs for guardians

24         and delegation of a ward's rights; creating s.

25         744.462, F.S.; requiring guardians to

26         immediately report certain judicial

27         determinations in certain guardianship

28         proceedings; requiring a court to review

29         certain continuing needs for guardians and

30         delegation of a ward's rights under certain

31         circumstances; providing an effective date.


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    SB 356                                   First Engrossed (ntc)



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

 2  

 3         Section 1.  Section 737.2065, Florida Statutes, is

 4  amended to read:

 5         737.2065  Trust contests.--An action to contest the

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

 7  the trust becomes irrevocable, except this section shall not

 8  prohibit such action by the guardian of the property of an

 9  incapacitated grantor.

10         Section 2.  Section 744.107, Florida Statutes, is

11  amended to read:

12         744.107  Court monitors.--

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

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

15  has jurisdiction, appoint a monitor. The court shall not

16  appoint as a monitor a family member or any person with a

17  personal interest in the proceedings. The order of appointment

18  shall be served upon the guardian, the ward, and such other

19  persons as the court may determine.

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

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

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

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

24  persons as the court may determine. The court shall not

25  appoint as a monitor a family member or any person with a

26  personal interest in the proceedings.

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

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

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

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

31  ward's estate, including amending the plan, requiring an


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    SB 356                                   First Engrossed (ntc)



 1  accounting, ordering production of assets, freezing assets,

 2  suspending a guardian, or initiating proceedings to remove a

 3  guardian.

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

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

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

 7  county, or municipal employee or officer shall be paid a fee

 8  for such investigation and report. If the court finds the

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

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

11  assessed against the movant.

12         Section 3.  Section 744.1075, Florida Statutes, is

13  created to read:

14         744.1075  Emergency court monitor.--

15         (1)(a)  A court, upon inquiry from any interested

16  person or upon its own motion, in any proceeding over which

17  the court has jurisdiction, may appoint a court monitor on an

18  emergency basis without notice. The court must specifically

19  find that there appears to be imminent danger that the

20  physical or mental health or safety of the ward will be

21  seriously impaired or that the ward's property is in danger of

22  being wasted, misappropriated, or lost unless immediate action

23  is taken. The scope of the matters to be investigated and the

24  powers and duties of the monitor must be specifically

25  enumerated by court order.

26         (b)  The authority of a monitor appointed under this

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

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

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

30  days upon a showing that the emergency conditions still exist.

31  


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    SB 356                                   First Engrossed (ntc)



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

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

 3  findings and recommendations to the court. The report shall be

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

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

 6  determine whether there is probable cause to take further

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

 8  court finds no probable cause, the court shall issue an order

 9  finding no probable cause and discharging the monitor.

10         (4)(a)  If the court finds probable cause, the court

11  shall issue an order to show cause directed to the guardian or

12  other respondent stating the essential facts constituting the

13  conduct charged and requiring the respondent to appear before

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

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

16  hearing with a reasonable time to allow for the preparation of

17  a defense after service of the order.

18         (b)  At any time prior to the hearing on the order to

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

20  restraining order, or an order freezing assets, may suspend

21  the guardian or appoint a guardian ad litem, or may issue any

22  other appropriate order to protect the physical or mental

23  health or safety or property of the ward. A copy of all such

24  orders or injunctions shall be transmitted by the court or

25  under its direction to all parties at the time of entry of the

26  order or injunction.

27         (c)  Following a hearing on the order to show cause,

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

29  attorney or other respondent or take any other action

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

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


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    SB 356                                   First Engrossed (ntc)



 1  local law enforcement agencies or the state attorney, filing

 2  an abuse, neglect, or exploitation complaint with the

 3  Department of Children and Family Services, or initiating

 4  proceedings to remove the guardian. Nothing in this subsection

 5  shall be construed to preclude the mandatory reporting

 6  requirements in chapter 39.

 7         (5)  Unless otherwise prohibited by law, a monitor may

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

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

10  county, or municipal employee or officer shall be paid a fee

11  for such investigation and report. If the court finds the

12  motion for a court monitor to have been filed in bad faith,

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

14  assessed against the movant.

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

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

17         744.331  Procedures to determine incapacity.--

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

19  findings of fact on the basis of clear and convincing

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

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

22  the court shall enter a written order determining such

23  incapacity. A person is determined to be incapacitated only

24  with respect to those rights specified in the order.

25         (b)  When an order is entered that determines that a

26  person is incapable of exercising delegable rights, the court

27  must consider and find whether there is an alternative to

28  guardianship that will sufficiently address the problems of

29  the incapacitated person. A guardian must be appointed to

30  exercise the incapacitated person's delegable rights unless

31  the court finds that there is an alternative. A guardian shall


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    SB 356                                   First Engrossed (ntc)



 1  not be appointed if the court finds that there is an

 2  alternative to guardianship that will sufficiently address the

 3  problems of the incapacitated person In any order declaring a

 4  person incapacitated the court must find that alternatives to

 5  guardianship were considered and that no alternative to

 6  guardianship will sufficiently address the problems of the

 7  ward.

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

 9  interested person stating:

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

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

12  durable power of attorney is invalid; and

13         2.  A reasonable factual basis for that belief,

14  

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

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

17  guardian. The appointment of a guardian shall not limit the

18  court's authority to determine that certain authority granted

19  by a durable power of attorney is to remain exercisable by the

20  attorney in fact When an order is entered which determines

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

22  guardian must be appointed to exercise those rights.

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

24  Statutes, is amended to read:

25         744.441  Powers of guardian upon court approval.--After

26  obtaining approval of the court pursuant to a petition for

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

28  limited guardian of the property within the powers granted by

29  the order appointing the guardian or an approved annual or

30  amended guardianship report, may:

31  


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    SB 356                                   First Engrossed (ntc)



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

 2  jurisdiction for the protection of the estate and of the

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

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

 5  737.2065, the court shall first find that the action appears

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

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

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

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

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

11         Section 6.  Section 744.462, Florida Statutes, is

12  created to read:

13         744.462  Determination regarding alternatives to

14  guardianship.--Any judicial determination concerning the

15  validity of the ward's trust, trust amendment, or durable

16  power of attorney shall be promptly reported in the

17  guardianship proceeding by the guardian of the property. If

18  the instrument has been judicially determined to be valid, or

19  if after the appointment of a guardian a petition is filed

20  alleging that there is an alternative to guardianship that

21  will sufficiently address the problems of the ward, the court

22  shall review the continued need for a guardian and the extent

23  of the need for delegation of the ward's rights.

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

25  law.

26  

27  

28  

29  

30  

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