HB 0457

CS

CHAMBER ACTION

1	The Future of Florida's Families Committee recommends the
2	following:
3
4	Council/Committee Substitute
5	Remove the entire bill and insert:
6	A bill to be entitled
7	An act relating to guardianship; amending s. 744.102,
8	F.S.; defining the terms "audit" and "surrogate guardian";
9	amending s. 744.1083, F.S.; revising provisions relating
10	to identification information provided by professional
11	guardians for registration; providing that the Statewide
12	Public Guardianship Office need not review credit and
13	criminal investigations from a state college or university
14	before registering the institution as a professional
15	guardian; amending s. 744.301, F.S.; providing that in the
16	event of death, the surviving parent is the sole natural
17	guardian of a minor; prohibiting a natural guardian from
18	using the property of the ward for the guardian's benefit
19	without a court order; creating s. 744.3025, F.S.;
20	authorizing a court to appoint a guardian ad litem to
21	represent a minor's interest in certain claims that exceed
22	a specified amount; requiring a court to appoint a
23	guardian ad litem to represent a minor's interest in
24	certain claims that exceed a specified amount; providing
25	that a court need not appoint a guardian ad litem under
26	certain circumstances; requiring a court to award
27	reasonable fees and costs to the guardian ad litem;
28	amending s. 744.3031, F.S.; increasing the time an
29	emergency temporary guardian may serve; increasing the
30	time of an extension; requiring an emergency temporary
31	guardian to file a final report; providing for the
32	contents of the final report; amending s. 744.304, F.S.;
33	specifying the persons who may file a petition for a
34	standby guardian; requiring that notice of the appointment
35	hearing be served on the ward's next of kin; clarifying
36	when a standby guardian may assume the duties of guardian;
37	requiring that each standby guardian submit to credit and
38	criminal background checks; amending s. 744.3115, F.S.;
39	defining the term "health care decision"; amending s.
40	744.3135, F.S.; providing procedures for completing a
41	guardian's criminal background investigation; authorizing
42	a guardian to use inkless electronic fingerprinting
43	equipment that is available for background investigations
44	of public employees; providing that a guardian need not be
45	rescreened if he or she uses certain inkless electronic
46	fingerprinting equipment; providing for fees; requiring
47	the Statewide Public Guardianship Office to adopt a rule
48	for credit investigations of guardians; amending s.
49	744.3145, F.S.; reducing the time in which a guardian must
50	complete the education courses; amending s. 744.3215,
51	F.S.; providing that an incapacitated person retains the
52	right to receive services and rehabilitation necessary to
53	maximize the quality of the person's life; revising
54	provisions relating to rights that may be removed from a
55	person determined incapacitated; amending s. 744.331,
56	F.S.; requiring that the court appoint an attorney for an
57	alleged incapacitated person from a specified registry;
58	requiring attorneys to complete certain training programs;
59	providing that a member of the examining committee may not
60	be related to or associated with certain persons;
61	prohibiting a person who served on an examining committee
62	from being appointed as the guardian; requiring each
63	member of an examining committee to file an affidavit
64	stating that he or she has completed or will timely
65	complete the mandatory training; providing for training
66	programs; requiring each member to report the time and
67	date that he or she examined the person alleged to be
68	incapacitated, the names of all persons present during the
69	examination, and the response and name of each person
70	supplying an answer posed to the examinee; providing for
71	an award of attorney's fees; amending s. 744.341, F.S.;
72	requiring the voluntary guardian to include certain
73	information in the annual report; amending s. 744.361,
74	F.S.; requiring a professional guardian to ensure that
75	each of his or her wards is personally visited at least
76	quarterly; providing for the assessment of certain
77	conditions during the personal visit; providing an
78	exemption; amending s. 744.365, F.S.; requiring that the
79	verified inventory include information on any trust to
80	which a ward is a beneficiary; amending s. 744.367, F.S.;
81	requiring that the annual report of the guardian filing on
82	a calendar-year basis be filed on or before a specified
83	date; exempting all minor wards from service of the annual
84	report; amending s. 744.3675, F.S.; requiring that the
85	annual guardianship plan include information on the mental
86	condition of the ward; providing for an annual
87	guardianship plan for wards who are minors; amending s.
88	744.3678, F.S.; providing that property of the ward which
89	is not under the control of the guardian, including
90	certain trusts, is not subject to annual accounting;
91	requiring certain documentation for the annual accounting;
92	amending s. 744.3679, F.S.; removing a provision
93	prohibiting the clerk of the court from having
94	responsibility for monitoring or auditing accounts in
95	certain cases; amending s. 744.368, F.S.; requiring that
96	the verified inventory and the accountings be audited
97	within a specified time period; amending s. 744.441, F.S.;
98	requiring the court to retain oversight for assets of a
99	ward transferred to a trust; creating s. 744.442, F.S.;
100	providing that a guardian may designate a surrogate
101	guardian to exercise the powers of the guardian if the
102	guardian is unavailable to act; requiring the surrogate
103	guardian to be a professional guardian; providing the
104	procedures to be used in appointing a surrogate guardian;
105	providing the duties of a surrogate guardian; requiring
106	the guardian to be liable for the acts of the surrogate
107	guardian; authorizing the guardian to terminate the
108	services of the surrogate guardian by filing a written
109	notice of the termination with the court; amending s.
110	744.464, F.S.; removing the state attorney from the list
111	of persons to be served a notice of a hearing on
112	restoration of capacity; removing a time limitation on the
113	filing of a suggestion of capacity; amending s. 744.474,
114	F.S.; revising provisions relating to removal of a
115	guardian who is not a family member; revising provisions
116	relating to removal of a guardian upon a showing that
117	removal of the current guardian is in the best interest of
118	the ward; amending s. 744.511, F.S.; providing that a ward
119	who is a minor need not be served with the final report of
120	a removed guardian; amending s. 744.527, F.S.; providing
121	that final reports for a deceased ward be filed at a
122	specified time; amending s. 744.528, F.S.; providing for a
123	notice of the hearing for objections to a report filed by
124	a guardian; amending s. 744.708, F.S.; revising provisions
125	relating to audits and investigations of each office of
126	public guardian; requiring a public guardian to ensure
127	that each of his or her wards is personally visited at
128	least quarterly; providing for the assessment of certain
129	conditions during the personal visit; providing for
130	additional distribution of a specified annual report;
131	deleting a definition; amending s. 765.101, F.S.;
132	redefining the term "health care decision" to include
133	informed consent for mental health treatment services;
134	amending s. 28.345, F.S.; revising provisions relating to
135	exemptions from paying court-related fees and charges;
136	amending ss. 121.091, 121.4501, 709.08, and 744.1085,
137	F.S.; conforming cross-references; reenacting s.
138	117.107(4), F.S., relating to prohibited acts of a notary
139	public, to incorporate the amendment made to s. 744.3215,
140	F.S., in a reference thereto; amending s. 318.18, F.S.;
141	authorizing a county to impose a surcharge on certain
142	civil penalties to fund local participation in the public
143	guardianship program; prescribing prerequisites for
144	imposing the surcharge; providing a limit on the
145	surcharge; creating s. 938.065, F.S.; requiring that a
146	specified surcharge be assessed against all misdemeanor
147	offenses; providing that the clerk of the court may retain
148	a service charge; directing that the funds collected be
149	used to fund public guardianship programs; providing an
150	effective date.
151
152	Be It Enacted by the Legislature of the State of Florida:
153
154	Section 1.  Section 744.102, Florida Statutes, is amended
155	to read:
156	744.102  Definitions.--As used in this chapter, the term:
157	(1)  "Attorney for the alleged incapacitated person" means
158	an attorney who represents the alleged incapacitated person. The
159	Such attorney shall represent the expressed wishes of the
160	alleged incapacitated person to the extent it is consistent with
161	the rules regulating The Florida Bar.
162	(2)  "Audit" means a systematic review of financial
163	documents with adherence to generally accepted auditing
164	standards.
165	(3)(2)  "Clerk" means the clerk or deputy clerk of the
166	court.
167	(4)(3)  "Corporate guardian" means a corporation authorized
168	to exercise fiduciary or guardianship powers in this state and
169	includes a nonprofit corporate guardian.
170	(5)(4)  "Court" means the circuit court.
171	(6)(5)  "Court monitor" means a person appointed by the
172	court under pursuant to s. 744.107 to provide the court with
173	information concerning a ward.
174	(7)(6)  "Estate" means the property of a ward subject to
175	administration.
176	(8)(7)  "Foreign guardian" means a guardian appointed in
177	another state or country.
178	(9)(8)  "Guardian" means a person who has been appointed by
179	the court to act on behalf of a ward's person or property, or
180	both.
181	(a)  "Limited guardian" means a guardian who has been
182	appointed by the court to exercise the legal rights and powers
183	specifically designated by court order entered after the court
184	has found that the ward lacks the capacity to do some, but not
185	all, of the tasks necessary to care for his or her person or
186	property, or after the person has voluntarily petitioned for
187	appointment of a limited guardian.
188	(b)  "Plenary guardian" means a person who has been
189	appointed by the court to exercise all delegable legal rights
190	and powers of the ward after the court has found that the ward
191	lacks the capacity to perform all of the tasks necessary to care
192	for his or her person or property.
193	(10)(9)  "Guardian ad litem" means a person who is
194	appointed by the court having jurisdiction of the guardianship
195	or a court in which a particular legal matter is pending to
196	represent a ward in that proceeding.
197	(11)(10)  "Guardian advocate" means a person appointed by a
198	written order of the court to represent a person with
199	developmental disabilities under s. 393.12. As used in this
200	chapter, the term does not apply to a guardian advocate
201	appointed for a person determined incompetent to consent to
202	treatment under s. 394.4598.
203	(12)(11)  "Incapacitated person" means a person who has
204	been judicially determined to lack the capacity to manage at
205	least some of the property or to meet at least some of the
206	essential health and safety requirements of the such person.
207	(a)  To "manage property" means to take those actions
208	necessary to obtain, administer, and dispose of real and
209	personal property, intangible property, business property,
210	benefits, and income.
211	(b)  To "meet essential requirements for health or safety"
212	means to take those actions necessary to provide the health
213	care, food, shelter, clothing, personal hygiene, or other care
214	without which serious and imminent physical injury or illness is
215	more likely than not to occur.
216	(13)(12)  "Minor" means a person under 18 years of age
217	whose disabilities have not been removed by marriage or
218	otherwise.
219	(14)(13)  "Next of kin" means those persons who would be
220	heirs at law of the ward or alleged incapacitated person if the
221	such person were deceased and includes the lineal descendants of
222	the such ward or alleged incapacitated person.
223	(15)(14)  "Nonprofit corporate guardian" means a nonprofit
224	corporation organized for religious or charitable purposes and
225	existing under the laws of this state.
226	(16)(15)  "Preneed guardian" means a person named in a
227	written declaration to serve as guardian in the event of the
228	incapacity of the declarant as provided in s. 744.3045.
229	(17)(16)  "Professional guardian" means any guardian who
230	receives or has at any time received compensation for services
231	rendered services to three or more than two wards as their
232	guardian. A person serving as a guardian for two or more
233	relatives as defined in s. 744.309(2) is not considered a
234	professional guardian. A public guardian shall be considered a
235	professional guardian for purposes of regulation, education, and
236	registration.
237	(18)(17)  "Property" means both real and personal property
238	or any interest in it and anything that may be the subject of
239	ownership.
240	(19)(18)  "Standby guardian" means a person empowered to
241	assume the duties of guardianship upon the death or adjudication
242	of incapacity of the last surviving natural or appointed
243	guardian.
244	(20)  "Surrogate guardian" means a guardian designated
245	according to s. 744.442.
246	(21)(19)  "Totally incapacitated" means incapable of
247	exercising any of the rights enumerated in s. 744.3215(2) and
248	(3).
249	(22)(20)  "Ward" means a person for whom a guardian has
250	been appointed.
251	Section 2.  Subsections (3), (7), and (10) of section
252	744.1083, Florida Statutes, are amended to read:
253	744.1083  Professional guardian registration.--
254	(3)  Registration must include the following:
255	(a)  Sufficient information to identify the professional
256	guardian, as follows:
257	1.  If the professional guardian is a natural person, the
258	name, address, date of birth, and employer identification or
259	social security number of the person professional guardian.
260	2.(b)  If the professional guardian is a partnership or
261	association, the name, address, and date of birth of every
262	member, and the employer identification number of the entity
263	partnership or association.
264	(c)  If the professional guardian is a corporation, the
265	name, address, and employer identification number of the
266	corporation; the name, address, and date of birth of each of its
267	directors and officers; the name of its resident agent; and the
268	name, address, and date of birth of each person having at least
269	a 10-percent interest in the corporation.
270	(d)  The name, address, date of birth, and employer
271	identification number, if applicable, of each person providing
272	guardian-delegated financial or personal guardianship services
273	for wards.
274	(b)(e)  Documentation that the bonding and educational
275	requirements of s. 744.1085 have been met.
276	(c)(f)  Sufficient information to distinguish a guardian
277	providing guardianship services as a public guardian,
278	individually, through partnership, corporation, or any other
279	business organization.
280	(7)  A trust company, a state banking corporation or state
281	savings association authorized and qualified to exercise
282	fiduciary powers in this state, or a national banking
283	association or federal savings and loan association authorized
284	and qualified to exercise fiduciary powers in this state, may,
285	but is not required to, register as a professional guardian
286	under this section. If a trust company, state banking
287	corporation, state savings association, national banking
288	association, or federal savings and loan association described
289	in this subsection elects to register as a professional guardian
290	under this subsection, the requirements of subsections (3) and
291	(4) do not apply and the registration must include only the
292	name, address, and employer identification number of the
293	registrant, the name and address of its registered agent, if
294	any, and the documentation described in paragraph (3)(b)(e).
295	(10)  A state college or university or an independent
296	college or university described in s. 1009.98(3)(a), may, but is
297	not required to, register as a professional guardian under this
298	section. If a state college or university or independent college
299	or university elects to register as a professional guardian
300	under this subsection, the requirements of subsections (3) and
301	(4) subsection (3) do not apply and the registration must
302	include only the name, address, and employer identification
303	number of the registrant.
304	Section 3.  Section 744.301, Florida Statutes, is amended
305	to read:
306	744.301  Natural guardians.--
307	(1)  The mother and father jointly are natural guardians of
308	their own children and of their adopted children, during
309	minority. If one parent dies, the surviving parent remains the
310	sole natural guardian even if he or she the natural guardianship
311	shall pass to the surviving parent, and the right shall continue
312	even though the surviving parent remarries. If the marriage
313	between the parents is dissolved, the natural guardianship
314	belongs shall belong to the parent to whom the custody of the
315	child is awarded. If the parents are given joint custody, then
316	both shall continue as natural guardians. If the marriage is
317	dissolved and neither the father nor the mother is given custody
318	of the child, neither shall act as natural guardian of the
319	child. The mother of a child born out of wedlock is the natural
320	guardian of the child and is entitled to primary residential
321	care and custody of the child unless a court of competent
322	jurisdiction enters an order stating otherwise.
323	(2)  The Natural guardian or guardians are authorized, on
324	behalf of any of their minor children, to:
325	(a)  Settle and consummate a settlement of any claim or
326	cause of action accruing to any of their minor children for
327	damages to the person or property of any of said minor children;
328	(b)  Collect, receive, manage, and dispose of the proceeds
329	of any such settlement;
330	(c)  Collect, receive, manage, and dispose of any real or
331	personal property distributed from an estate or trust;
332	(d)  Collect, receive, manage, and dispose of and make
333	elections regarding the proceeds from a life insurance policy or
334	annuity contract payable to, or otherwise accruing to the
335	benefit of, the child; and
336	(e)  Collect, receive, manage, dispose of, and make
337	elections regarding the proceeds of any benefit plan as defined
338	by s. 710.102, of which the minor is a beneficiary, participant,
339	or owner,
340
341	without appointment, authority, or bond, when the amounts
342	received, in the aggregate, do amount involved in any instance
343	does not exceed $15,000.
344	(3)  All instruments executed by a natural guardian for the
345	benefit of the ward under the powers specified provided for in
346	subsection (2) shall be binding on the ward. The natural
347	guardian may not, without a court order, use the property of the
348	ward for the guardian's benefit or to satisfy the guardian's
349	support obligation to the ward.
350	(4)(a)  In any case where a minor has a claim for personal
351	injury, property damage, or wrongful death in which the gross
352	settlement for the claim of the minor exceeds $15,000, the court
353	may, prior to the approval of the settlement of the minor's
354	claim, appoint a guardian ad litem to represent the minor's
355	interests. In any case in which the gross settlement involving a
356	minor equals or exceeds $25,000, the court shall, prior to the
357	approval of the settlement of the minor's claim, appoint a
358	guardian ad litem to represent the minor's interests. The
359	appointment of the guardian ad litem must be without the
360	necessity of bond or a notice. The duty of the guardian ad litem
361	is to protect the minor's interests. The procedure for carrying
362	out that duty is as prescribed in the Florida Probate Rules. If
363	a legal guardian of the minor has previously been appointed and
364	has no potential adverse interest to the minor, the court may
365	not appoint a guardian ad litem to represent the minor's
366	interests, unless the court determines that the appointment is
367	otherwise necessary.
368	(b)  Unless waived, the court shall award reasonable fees
369	and costs to the guardian ad litem to be paid out of the gross
370	proceeds of the settlement.
371	Section 4.  Section 744.3025, Florida Statutes, is created
372	to read:
373	744.3025  Claims of minors.--
374	(1)(a)  The court may appoint a guardian ad litem to
375	represent the minor's interest before approving a settlement of
376	the minor's portion of the claim in any case in which a minor
377	has a claim for personal injury, property damage, wrongful
378	death, or other cause of action in which the gross settlement of
379	the claim exceeds $15,000.
380	(b)  The court shall appoint a guardian ad litem to
381	represent the minor's interest before approving a settlement of
382	the minor's claim in any case in which the gross settlement
383	involving a minor equals or exceeds $50,000.
384	(c)  The appointment of the guardian ad litem must be
385	without the necessity of bond or notice.
386	(d)  The duty of the guardian ad litem is to protect the
387	minor's interests as described in the Florida Probate Rules.
388	(e)  A court need not appoint a guardian ad litem for the
389	minor if a guardian of the minor has previously been appointed
390	and that guardian has no potential adverse interest to the
391	minor. A court may appoint a guardian ad litem if the court
392	believes a guardian ad litem is necessary to protect the
393	interests of the minor.
394	(2)  Unless waived, the court shall award reasonable fees
395	and costs to the guardian ad litem to be paid out of the gross
396	proceeds of the settlement.
397	Section 5.  Subsection (3) of section 744.3031, Florida
398	Statutes, is amended, and subsection (8) is added to that
399	section, to read:
400	744.3031  Emergency temporary guardianship.--
401	(3)  The authority of an emergency temporary guardian
402	expires 90 60 days after the date of appointment or when a
403	guardian is appointed, whichever occurs first. The authority of
404	the emergency temporary guardian may be extended for an
405	additional 90 30 days upon a showing that the emergency
406	conditions still exist.
407	(8)(a)  An emergency temporary guardian shall file a final
408	report no later than 30 days after the expiration of the
409	emergency temporary guardianship.
410	(b)  An emergency temporary guardian is a guardian for the
411	property. The final report must consist of a verified inventory
412	of the property, as provided in s. 744.365, as of the date the
413	letters of emergency temporary guardianship were issued, a final
414	accounting that gives a full and correct account of the receipts
415	and disbursements of all the property of the ward over which the
416	guardian had control, and a statement of the property of the
417	ward on hand at the end of the emergency temporary guardianship.
418	If the emergency temporary guardian becomes the successor
419	guardian of the property, the final report must satisfy the
420	requirements of the initial guardianship report for the guardian
421	of the property as provided in s. 744.362.
422	(c)  If the emergency temporary guardian is a guardian of
423	the person, the final report must summarize the activities of
424	the temporary guardian with regard to residential placement,
425	medical condition, mental health and rehabilitative services,
426	and the social condition of the ward to the extent of the
427	authority granted to the temporary guardian in the letters of
428	guardianship. If the emergency temporary guardian becomes the
429	successor guardian of the person, the report must satisfy the
430	requirements of the initial report for a guardian of the person
431	as stated in s. 744.362.
432	(d)  A copy of the final report of the emergency temporary
433	guardianship shall be served on the successor guardian and the
434	ward.
435	Section 6.  Section 744.304, Florida Statutes, is amended
436	to read:
437	744.304  Standby guardianship.--
438	(1)  Upon a petition by the natural guardians or a guardian
439	appointed under s. 744.3021, the court may appoint a standby
440	guardian of the person or property of a minor or consent of both
441	parents, natural or adoptive, if living, or of the surviving
442	parent, a standby guardian of the person or property of a minor
443	may be appointed by the court. The court may also appoint an
444	alternate to the guardian to act if the standby guardian does
445	not serve or ceases to serve after appointment. Notice of a
446	hearing on the petition must be served on the parents, natural
447	or adoptive, and on any guardian currently serving unless the
448	notice is waived in writing by them or waived by the court for
449	good cause shown shall renounce, die, or become incapacitated
450	after the death of the last surviving parent of the minor.
451	(2)  Upon petition of a currently serving guardian, a
452	standby guardian of the person or property of an incapacitated
453	person may be appointed by the court. Notice of the hearing
454	shall be served on the ward's next of kin.
455	(3)  The standby guardian or alternate shall be empowered
456	to assume the duties of guardianship his or her office
457	immediately on the death, removal, or resignation of the
458	guardian of a minor, or on the death or adjudication of
459	incapacity of the last surviving natural guardian or adoptive
460	parent of a minor, or upon the death, removal, or resignation of
461	the guardian for an adult. The; however, such a guardian of the
462	ward's property may not be empowered to deal with the ward's
463	property, other than to safeguard it, before prior to issuance
464	of letters of guardianship. If the ward incapacitated person is
465	over the age of 18 years, the court shall conduct a hearing as
466	provided in s. 744.331 before confirming the appointment of the
467	standby guardian, unless the ward has previously been found to
468	be incapacitated.
469	(4)  Within 20 days after assumption of duties as guardian,
470	a standby guardian shall petition for confirmation of
471	appointment. If the court finds the standby guardian to be
472	qualified to serve as guardian under pursuant to ss. 744.309 and
473	744.312, appointment of the guardian must be confirmed. Each
474	guardian so confirmed shall file an oath in accordance with s.
475	744.347, and shall file a bond, and shall submit to a credit and
476	criminal investigation as set forth in s. 744.3135, if required.
477	Letters of guardianship must then be issued in the manner
478	provided in s. 744.345.
479	(5)  After the assumption of duties by a standby guardian,
480	the court shall have jurisdiction over the guardian and the
481	ward.
482	Section 7.  Section 744.3115, Florida Statutes, is amended
483	to read:
484	744.3115  Advance directives for health care.--In each
485	proceeding in which a guardian is appointed under this chapter,
486	the court shall determine whether the ward, prior to incapacity,
487	has executed any valid advance directive under pursuant to
488	chapter 765. If any such advance directive exists, the court
489	shall specify in its order and letters of guardianship what
490	authority, if any, the guardian shall exercise over the
491	surrogate. Pursuant to the grounds listed in s. 765.105, the
492	court, upon its own motion, may, with notice to the surrogate
493	and any other appropriate parties, modify or revoke the
494	authority of the surrogate to make health care decisions for the
495	ward. For purposes of this section, the term "health care
496	decision" has the same meaning as in s. 765.101.
497	Section 8.  Section 744.3135, Florida Statutes, is amended
498	to read:
499	744.3135  Credit and criminal investigation.--
500	(1)  The court may require a nonprofessional guardian and
501	shall require a professional or public guardian, and all
502	employees of a professional guardian who have a fiduciary
503	responsibility to a ward, to submit, at their own expense, to an
504	investigation of the guardian's credit history and to undergo
505	level 2 background screening as required under s. 435.04. If a
506	credit or criminal investigation is required, the court must
507	consider the results of any investigation before appointing a
508	guardian. At any time, the court may require a guardian or the
509	guardian's employees to submit to an investigation of the
510	person's credit history and complete a level 1 background
511	screening as set forth in s. 435.03. The court shall consider
512	the results of any investigation when reappointing a guardian.
513	The clerk of the court shall maintain a file on each guardian
514	appointed by the court and retain in the file documentation of
515	the result of any investigation conducted under this section. A
516	professional guardian must pay the clerk of the court a fee of
517	up to $7.50 for handling and processing professional guardian
518	files.
519	(2)  The court and the Statewide Public Guardianship Office
520	shall accept the satisfactory completion of a criminal
521	background investigation by any method described in this
522	subsection. A guardian satisfies the requirements of this
523	section by undergoing:
524	(a)  An inkless electronic fingerprint criminal background
525	investigation. A guardian may use any inkless electronic
526	fingerprinting equipment used for criminal background
527	investigations of public employees. The guardian shall pay the
528	actual costs incurred by the Federal Bureau of Investigation and
529	the Department of Law Enforcement for the criminal background
530	investigation. The agency that operates the equipment used by
531	the guardian may charge the guardian an additional fee, not to
532	exceed $10, for the use of the equipment. The agency completing
533	the investigation must immediately send the results of the
534	criminal background investigation to the clerk of the court and
535	the Statewide Public Guardianship Office. The clerk of the court
536	shall maintain the results in the guardian's file and shall make
537	the results available to the court; or
538	(b)  A criminal background investigation using a
539	fingerprint card. The clerk of the court shall obtain
540	fingerprint cards from the Federal Bureau of Investigation and
541	make them available to guardians. Any guardian who is so
542	required shall have his or her fingerprints taken and forward
543	the proper fingerprint card along with the necessary fee to the
544	Florida Department of Law Enforcement for processing. The
545	professional guardian shall pay to the clerk of the court a fee
546	of up to $7.50 for handling and processing professional guardian
547	files. The results of the fingerprint card background
548	investigations checks shall be forwarded to the clerk of the
549	court who shall maintain the results in the guardian's a
550	guardian file and shall make the results available to the court
551	and the Statewide Public Guardianship Office.
552	(3)(a)  A professional guardian, and each employee of a
553	professional guardian who has a fiduciary responsibility to a
554	ward, must complete, at his or her own expense, a level 2
555	background screening as set forth in s. 435.04 before and at
556	least once every 5 years after the date the guardian is
557	appointed. A professional guardian, and each employee of a
558	professional guardian who has a fiduciary responsibility to a
559	ward, must complete, at his or her own expense, a level 1
560	background screening as set forth in s. 435.03 at least once
561	every 2 years after the date the guardian is appointed. However,
562	a person is not required to resubmit fingerprints for a criminal
563	background investigation if he or she has been screened using
564	inkless electronic fingerprinting equipment that is capable of
565	notifying the clerk of the court of any crime charged against
566	the person in this state or elsewhere, as appropriate.
567	(b)  Effective December 15, 2006, all fingerprints
568	electronically submitted to the Department of Law Enforcement
569	under this section shall be retained by the Department of Law
570	Enforcement in a manner provided by rule and entered in the
571	statewide automated fingerprint identification system authorized
572	by s. 943.05(2)(b). The fingerprints shall thereafter be
573	available for all purposes and uses authorized for arrest
574	fingerprint cards entered in the Criminal Justice Information
575	Program under s. 943.051.
576	(c)  Effective December 15, 2006, the Department of Law
577	Enforcement shall search all arrest fingerprint cards received
578	under s. 943.051 against the fingerprints retained in the
579	statewide automated fingerprint identification system under
580	paragraph (b). Any arrest record that is identified with the
581	fingerprints of a person described in this paragraph must be
582	reported as soon as possible to the clerk of the court. The
583	clerk of the court must forward any arrest record received for a
584	professional guardian to the Statewide Public Guardianship
585	Office within 5 days. Each guardian who elects to undergo an
586	inkless electronic background investigation shall participate in
587	this search process by paying an annual fee to the clerk of the
588	court and by informing the clerk of the court of any change in
589	the status of his or her guardianship appointment. The amount of
590	the annual fee to be imposed upon each clerk of the court for
591	performing these searches and the procedures for the retention
592	of guardian fingerprints and the dissemination of search results
593	shall be established by rule of the Department of Law
594	Enforcement. The fee may be borne by the clerk of the court or
595	the guardian, but may not exceed $10.
596	(4)(a)  A professional guardian, and each employee of a
597	professional guardian who has a fiduciary responsibility to a
598	ward, must complete, at his or her own expense, an investigation
599	of his or her credit history before and at least once every 2
600	years after the date of the guardian's appointment.
601	(b)  The Statewide Public Guardianship Office shall adopt a
602	rule detailing the acceptable methods for completing a credit
603	investigation under this section. If appropriate, the Statewide
604	Public Guardianship Office may administer credit investigations.
605	If the office chooses to administer the credit investigation,
606	the office may adopt a rule setting a fee, not to exceed $25, to
607	reimburse the costs associated with the administration of a
608	credit investigation.
609	(5)  The Statewide Public Guardianship Office may inspect
610	at any time the results of any credit or criminal investigation
611	of a public or professional guardian conducted under this
612	section. The office shall maintain copies of the credit or
613	criminal results in the guardian's registration file. If the
614	results of a credit or criminal investigation of a public or
615	professional guardian have not been forwarded to the Statewide
616	Public Guardianship Office by the investigating agency, the
617	clerk of the court shall forward copies of the results of the
618	investigations to the office upon receiving them. If credit or
619	criminal investigations are required, the court must consider
620	the results of the investigations before appointing a guardian.
621	Professional guardians and all employees of a professional
622	guardian who have a fiduciary responsibility to a ward, so
623	appointed, must resubmit, at their own expense, to an
624	investigation of credit history, and undergo level 1 background
625	screening as required under s. 435.03, at least every 2 years
626	after the date of their appointment. At any time, the court may
627	require guardians or their employees to submit to an
628	investigation of credit history and undergo level 1 background
629	screening as required under s. 435.03. The court must consider
630	the results of these investigations in reappointing a guardian.
631	(1)  Upon receiving the results of a credit or criminal
632	investigation of any public or professional guardian, the clerk
633	of the court shall forward copies of the results to the
634	Statewide Public Guardianship Office in order that the results
635	may be maintained in the guardian's registration file.
636	(6)(2)  The requirements of this section do does not apply
637	to a professional guardian, or to the employees of a
638	professional guardian, that which is a trust company, a state
639	banking corporation or state savings association authorized and
640	qualified to exercise fiduciary powers in this state, or a
641	national banking association or federal savings and loan
642	association authorized and qualified to exercise fiduciary
643	powers in this state.
644	Section 9.  Subsection (4) of section 744.3145, Florida
645	Statutes, is amended to read:
646	744.3145  Guardian education requirements.--
647	(4)  Each person appointed by the court to be a guardian
648	must complete the required number of hours of instruction and
649	education within 4 months 1 year after his or her appointment as
650	guardian. The instruction and education must be completed
651	through a course approved by the chief judge of the circuit
652	court and taught by a court-approved organization. Court-
653	approved organizations may include, but are not limited to,
654	community or junior colleges, guardianship organizations, and
655	the local bar association or The Florida Bar.
656	Section 10.  Paragraph (i) of subsection (1) and subsection
657	(2) of section 744.3215, Florida Statutes, are amended to read:
658	744.3215  Rights of persons determined incapacitated.--
659	(1)  A person who has been determined to be incapacitated
660	retains the right:
661	(i)  To receive necessary services and rehabilitation
662	necessary to maximize the quality of life.
663	(2)  Rights that may be removed from a person by an order
664	determining incapacity but not delegated to a guardian include
665	the right:
666	(a)  To marry. If the right to enter into a contract has
667	been removed, the right to marry is subject to court approval.
668	(b)  To vote.
669	(c)  To personally apply for government benefits.
670	(d)  To have a driver's license.
671	(e)  To travel.
672	(f)  To seek or retain employment.
673	Section 11.  Subsections (2), (3), and (7) of section
674	744.331, Florida Statutes, are amended to read:
675	744.331  Procedures to determine incapacity.--
676	(2)  ATTORNEY FOR THE ALLEGED INCAPACITATED PERSON.--
677	(a)  When a court appoints an attorney for an alleged
678	incapacitated person, the court must appoint an attorney who is
679	included in the attorney registry compiled by the circuit's
680	Article V indigent services committee. Appointments must be made
681	on a rotating basis, taking into consideration conflicts arising
682	under this chapter.
683	(b)(a)  The court shall appoint an attorney for each person
684	alleged to be incapacitated in all cases involving a petition
685	for adjudication of incapacity. The alleged incapacitated person
686	may substitute her or his own attorney for the attorney
687	appointed by the court, subject to court approval.
688	(c)(b)  Any attorney representing an alleged incapacitated
689	person may not serve as guardian of the alleged incapacitated
690	person or as counsel for the guardian of the alleged
691	incapacitated person or the petitioner.
692	(d)  Effective January 1, 2007, an attorney seeking to be
693	appointed by a court for incapacity and guardianship proceedings
694	must have completed a minimum of 8 hours of education in
695	guardianship. A court may waive the initial training requirement
696	for an attorney who has served as a court-appointed attorney in
697	incapacity proceedings or as an attorney of record for guardians
698	for not less than 3 years.
699	(3)  EXAMINING COMMITTEE.--
700	(a)  Within 5 days after a petition for determination of
701	incapacity has been filed, the court shall appoint an examining
702	committee consisting of three members. One member must be a
703	psychiatrist or other physician. The remaining members must be
704	either a psychologist, gerontologist, another psychiatrist, or
705	other physician, a registered nurse, nurse practitioner,
706	licensed social worker, a person with an advanced degree in
707	gerontology from an accredited institution of higher education,
708	or other person who by knowledge, skill, experience, training,
709	or education may, in the court's discretion, advise the court in
710	the form of an expert opinion, including a professional
711	guardian. One of three members of the committee must have
712	knowledge of the type of incapacity alleged in the petition.
713	Unless good cause is shown, the attending or family physician
714	may not be appointed to the committee. If the attending or
715	family physician is available for consultation, the committee
716	must consult with the physician. Members of the examining
717	committee may not be related to or associated with one another,
718	or with the petitioner, with counsel for the petitioner or the
719	proposed guardian, or with the person alleged to be totally or
720	partially incapacitated. A member may not be employed by any
721	private or governmental agency that has custody of, or
722	furnishes, services or subsidies, directly or indirectly, to the
723	person or the family of the person alleged to be incapacitated
724	or for whom a guardianship is sought. A petitioner may not serve
725	as a member of the examining committee. Members of the examining
726	committee must be able to communicate, either directly or
727	through an interpreter, in the language that the alleged
728	incapacitated person speaks or to communicate in a medium
729	understandable to the alleged incapacitated person if she or he
730	is able to communicate. The clerk of the court shall send notice
731	of the appointment to each person appointed no later than 3 days
732	after the court's appointment.
733	(b)  A person who has been appointed to serve as a member
734	of an examining committee to examine an alleged incapacitated
735	person may not thereafter be appointed as a guardian for the
736	person who was the subject of the examination.
737	(c)  Each person appointed to an examining committee must
738	file an affidavit with the court stating that he or she has
739	completed the required courses or will do so no later than 4
740	months after his or her initial appointment. Each year, the
741	chief judge of the circuit must prepare a list of persons
742	qualified to be members of the examining committee.
743	(d)  A member of an examining committee must complete a
744	minimum of 4 hours of initial training. The person must complete
745	2 hours of continuing education during each 2-year period after
746	the initial training. The initial training and continuing
747	education program must be developed under the supervision of the
748	Statewide Public Guardianship Office, in consultation with the
749	Florida Conference of Circuit Court Judges; the Elder Law and
750	the Real Property, Probate and Trust Law sections of The Florida
751	Bar; the Florida State Guardianship Association; and the Florida
752	Guardianship Foundation. The court may waive the initial
753	training requirement for a person who has served for not less
754	than 5 years on examining committees. If a person wishes to
755	obtain his or her continuing education on the Internet or by
756	watching a video course, the person must first obtain the
757	approval of the chief judge before taking an Internet or video
758	course.
759	(e)(b)  Each member of the examining committee shall
760	examine the person. Each The examining committee member must
761	shall determine the alleged incapacitated person's ability to
762	exercise those rights specified in s. 744.3215. In addition to
763	the examination, each the examining committee member must shall
764	have access to, and may consider, previous examinations of the
765	person, including, but not limited to, habilitation plans,
766	school records, and psychological and psychosocial reports
767	voluntarily offered for use by the alleged incapacitated person.
768	Each member of the examining committee must shall submit a
769	report within 15 days after appointment.
770	(f)(c)  The examination of the alleged incapacitated person
771	must include a comprehensive examination, a report of which
772	shall be filed by the examining committee as part of its written
773	report. The comprehensive examination report should be an
774	essential element, but not necessarily the only element, used in
775	making a capacity and guardianship decision. The comprehensive
776	examination must include, if indicated:
777	1.  A physical examination;
778	2.  A mental health examination; and
779	3.  A functional assessment.
780
781	If any of these three aspects of the examination is not
782	indicated or cannot be accomplished for any reason, the written
783	report must explain the reasons for its omission.
784	(g)(d)  The committee's written report must include:
785	1.  To the extent possible, a diagnosis, prognosis, and
786	recommended course of treatment.
787	2.  An evaluation of the alleged incapacitated person's
788	ability to retain her or his rights, including, without
789	limitation, the rights to marry; vote; contract; manage or
790	dispose of property; have a driver's license; determine her or
791	his residence; consent to medical treatment; and make decisions
792	affecting her or his social environment.
793	3.  The results of the comprehensive examination and the
794	committee members' assessment of information provided by the
795	attending or family physician, if any.
796	4.  A description of any matters with respect to which the
797	person lacks the capacity to exercise rights, the extent of that
798	incapacity, and the factual basis for the determination that the
799	person lacks that capacity.
800	5.  The names of all persons present during the time the
801	committee member conducted his or her examination. If a person
802	other than the person who is the subject of the examination
803	supplies answers posed to the alleged incapacitated person, the
804	report must include the response and the name of the person
805	supplying the answer.
806	6.5.  The signature of each member of the committee and the
807	date and time that each member conducted his or her examination.
808	(h)(e)  A copy of the report must be served on the
809	petitioner and on the attorney for the alleged incapacitated
810	person within 3 days after the report is filed and at least 5
811	days before the hearing on the petition.
812	(7)  FEES.--
813	(a)  The examining committee and any attorney appointed
814	under subsection (2) are entitled to reasonable fees to be
815	determined by the court.
816	(b)  The fees awarded under paragraph (a) shall be paid by
817	the guardian from the property of the ward or, if the ward is
818	indigent, by the state. The state shall have a creditor's claim
819	against the guardianship property for any amounts paid under
820	this section. The state may file its claim within 90 days after
821	the entry of an order awarding attorney ad litem fees. If the
822	state does not file its claim within the 90-day period, the
823	state is thereafter barred from asserting the claim. Upon
824	petition by the state for payment of the claim, the court shall
825	enter an order authorizing immediate payment out of the property
826	of the ward. The state shall keep a record of the such payments.
827	(c)  If the petition is dismissed, costs and attorney's
828	fees of the proceeding may be assessed against the petitioner if
829	the court finds the petition to have been filed in bad faith.
830	Section 12.  Subsection (4) of section 744.341, Florida
831	Statutes, is renumbered as subsection (5) and a new subsection
832	(4) is added to that section to read:
833	744.341  Voluntary guardianship.--
834	(4)  A guardian must include in the annual report filed
835	with the court a certificate from a licensed physician who
836	examined the ward not more than 90 days before the annual report
837	is filed with the court. The certificate must certify that the
838	ward is competent to understand the nature of the guardianship
839	and of the ward's authority to delegate powers to the voluntary
840	guardian.
841	Section 13.  Subsection (9) is added to section 744.361,
842	Florida Statutes, to read:
843	744.361  Powers and duties of guardian.--
844	(9)  A professional guardian must ensure that each of the
845	guardian's wards is personally visited by the guardian or one of
846	the guardian's professional staff at least once each calendar
847	quarter. During the personal visit, the guardian or the
848	guardian's professional staff person shall assess:
849	(a)  The ward's physical appearance and condition.
850	(b)  The appropriateness of the ward's current living
851	situation.
852	(c)  The need for any additional services and the necessity
853	for continuation of existing services, taking into consideration
854	all aspects of social, psychological, educational, direct
855	service, health, and personal care needs.
856
857	This subsection does not apply to a professional guardian who
858	has been appointed only as guardian of the property.
859	Section 14.  Subsection (2) of section 744.365, Florida
860	Statutes, is amended to read:
861	744.365  Verified inventory.--
862	(2)  CONTENTS.--The verified inventory must include the
863	following:
864	(a)  All property of the ward, real and personal, that has
865	come into the guardian's possession or knowledge, including a
866	statement of all encumbrances, liens, and other secured claims
867	on any item, any claims against the property, and any cause of
868	action accruing to the ward, and any trusts of which the ward is
869	a beneficiary.;
870	(b)  The location of the real and personal property in
871	sufficient detail so that it may be clearly identified or
872	located.; and
873	(c)  A description of all sources of income, including,
874	without limitation, social security benefits and pensions.
875	Section 15.  Subsections (1) and (3) of section 744.367,
876	Florida Statutes, are amended to read:
877	744.367  Duty to file annual guardianship report.--
878	(1)  Unless the court requires filing on a calendar-year
879	basis, each guardian of the person shall file with the court an
880	annual guardianship plan within 90 days after the last day of
881	the anniversary month the letters of guardianship were signed,
882	and the plan must cover the coming fiscal year, ending on the
883	last day in such anniversary month. If the court requires
884	calendar-year filing, the guardianship plan must be filed on or
885	before April 1 of each year within 90 days after the end of the
886	calendar year.
887	(3)  The annual guardianship report of a guardian of the
888	property must consist of an annual accounting, and the annual
889	report of a guardian of the person of an incapacitated person
890	must consist of an annual guardianship plan. The annual report
891	shall be served on the ward, unless the ward is a minor under
892	the age of 14 years or is totally incapacitated, and on the
893	attorney for the ward, if any. The guardian shall provide a copy
894	to any other person as the court may direct.
895	Section 16.  Section 744.3675, Florida Statutes, is amended
896	to read:
897	744.3675  Annual guardianship plan.--Each guardian of the
898	person must file with the court an annual guardianship plan
899	which updates information about the condition of the ward. The
900	annual plan must specify the current needs of the ward and how
901	those needs are proposed to be met in the coming year.
902	(1)  Each plan for an adult ward must, if applicable,
903	include:
904	(a)  Information concerning the residence of the ward,
905	including:
906	1.  The ward's address at the time of filing the plan.;
907	2.  The name and address of each place where the ward was
908	maintained during the preceding year.;
909	3.  The length of stay of the ward at each place.;
910	4.  A statement of whether the current residential setting
911	is best suited for the current needs of the ward.; and
912	5.  Plans for ensuring during the coming year that the ward
913	is in the best residential setting to meet his or her needs.
914	(b)  Information concerning the medical and mental health
915	conditions condition and treatment and rehabilitation needs of
916	the ward, including:
917	1.  A resume of any professional medical treatment given to
918	the ward during the preceding year.;
919	2.  The report of a physician who examined the ward no more
920	than 90 days before the beginning of the applicable reporting
921	period. The Such report must contain an evaluation of the ward's
922	condition and a statement of the current level of capacity of
923	the ward.; and
924	3.  The plan for providing provision of medical, mental
925	health, and rehabilitative services in the coming year.
926	(c)  Information concerning the social condition of the
927	ward, including:
928	1.  The social and personal services currently used
929	utilized by the ward.;
930	2.  The social skills of the ward, including a statement of
931	how well the ward communicates and maintains interpersonal
932	relationships. with others;
933	3.  A description of the ward's activities at communication
934	and visitation; and
935	3.4.  The social needs of the ward.
936	(2)  Each plan filed by the legal guardian of a minor must
937	include:
938	(a)  Information concerning the residence of the minor,
939	including:
940	1.  The minor's address at the time of filing the plan.
941	2.  The name and address of each place the minor lived
942	during the preceding year.
943	(b)  Information concerning the medical and mental health
944	conditions and treatment and rehabilitation needs of the minor,
945	including:
946	1.  A resume of any professional medical treatment given to
947	the minor during the preceding year.
948	2.  A report from the physician who examined the minor no
949	more than 180 days before the beginning of the applicable
950	reporting period that contains an evaluation of the minor's
951	physical and mental conditions.
952	3.  The plan for providing medical services in the coming
953	year.
954	(c)  Information concerning the education of the minor,
955	including:
956	1.  A summary of the school progress report.
957	2.  The social development of the minor, including a
958	statement of how well the minor communicates and maintains
959	interpersonal relationships.
960	3.  The social needs of the minor.
961	(3)(2)  Each plan for an adult ward must address the issue
962	of restoration of rights to the ward and include:
963	(a)  A summary of activities during the preceding year that
964	which were designed to enhance increase the capacity of the
965	ward.;
966	(b)  A statement of whether the ward can have any rights
967	restored.; and
968	(c)  A statement of whether restoration of any rights will
969	be sought.
970	(4)(3)  The court, in its discretion, may require
971	reexamination of the ward by a physician at any time.
972	Section 17.  Subsections (2) and (3) of section 744.3678,
973	Florida Statutes, are amended to read:
974	744.3678  Annual accounting.--
975	(2)  The annual accounting must include:
976	(a)  A full and correct account of the receipts and
977	disbursements of all of the ward's property over which the
978	guardian has control and a statement of the ward's property on
979	hand at the end of the accounting period. This paragraph does
980	not apply to any property or any trust of which the ward is a
981	beneficiary but which is not under the control or administration
982	of the guardian.
983	(b)  A copy of the annual or year-end statement of all of
984	the ward's cash accounts from each of the institutions where the
985	cash is deposited.
986	(3)  The guardian must obtain a receipt, or canceled check,
987	or other proof of payment for all expenditures and disbursements
988	made on behalf of the ward. The guardian must preserve all
989	evidence of payment the receipts and canceled checks, along with
990	other substantiating papers, for a period of 3 years after his
991	or her discharge. The receipts, proofs of payment checks, and
992	substantiating papers need not be filed with the court but shall
993	be made available for inspection and review at the such time and
994	in such place and before the such persons as the court may from
995	time to time order.
996	Section 18.  Section 744.3679, Florida Statutes, is amended
997	to read:
998	744.3679  Simplified accounting procedures in certain
999	cases.--
1000	(1)  In a guardianship of property, when all assets of the
1001	estate are in designated depositories under s. 69.031 and the
1002	only transactions that occur in that account are interest
1003	accrual, deposits from a pursuant to settlement, or financial
1004	institution service charges, the guardian may elect to file an
1005	accounting consisting of:
1006	(a)  The original or a certified copy of the year-end
1007	statement of the ward's account from the financial institution;
1008	and
1009	(b)  A statement by the guardian under penalty of perjury
1010	that the guardian has custody and control of the ward's property
1011	as shown in the year-end statement.
1012	(2)  The clerk has no responsibility to monitor or audit
1013	the accounts and may not accept a fee for doing so.
1014	(2)(3)  The accounting allowed by subsection (1) is in lieu
1015	of the accounting and auditing procedures under s. 744.3678(2)
1016	ss. 744.3678 and 744.368(1)(f). However, any interested party
1017	may seek judicial review as provided in s. 744.3685.
1018	(3)(4)  The guardian need not be represented by an attorney
1019	in order to file the annual accounting allowed by subsection
1020	(1).
1021	Section 19.  Subsection (3) of section 744.368, Florida
1022	Statutes, is amended to read:
1023	744.368  Responsibilities of the clerk of the circuit
1024	court.--
1025	(3)  Within 90 days after the filing of the verified
1026	inventory and accountings initial or annual guardianship report
1027	by a guardian of the property, the clerk shall audit the
1028	verified inventory and or the accountings annual accounting. The
1029	clerk shall advise the court of the results of the audit.
1030	Section 20.  Subsection (19) of section 744.441, Florida
1031	Statutes, is amended to read:
1032	744.441  Powers of guardian upon court approval.--After
1033	obtaining approval of the court pursuant to a petition for
1034	authorization to act, a plenary guardian of the property, or a
1035	limited guardian of the property within the powers granted by
1036	the order appointing the guardian or an approved annual or
1037	amended guardianship report, may:
1038	(19)  Create or amend revocable or irrevocable trusts of
1039	property of the ward's estate which may extend beyond the
1040	disability or life of the ward in connection with estate, gift,
1041	income, or other tax planning or in connection with estate
1042	planning. The court shall retain oversight of the assets
1043	transferred to a trust, unless otherwise ordered by the court.
1044	Section 21.  Section 744.442, Florida Statutes, is created
1045	to read:
1046	744.442  Delegation of authority.--
1047	(1)  A guardian may designate a surrogate guardian to
1048	exercise the powers of the guardian if the guardian is
1049	unavailable to act. A person designated as a surrogate guardian
1050	under this section must be a professional guardian.
1051	(2)(a)  A guardian must file a petition with the court
1052	requesting permission to designate a surrogate guardian.
1053	(b)  If the court approves the designation, the order must
1054	specify the name and business address of the surrogate guardian
1055	and the duration of appointment, which may not exceed 30 days.
1056	The court may extend the appointment for good cause shown. The
1057	surrogate guardian may exercise all powers of the guardian
1058	unless limited by order of the court. The surrogate guardian
1059	must file with the court an oath swearing or affirming that he
1060	or she will faithfully perform the duties delegated. The court
1061	may require the surrogate guardian to post a bond.
1062	(3)  This section does not limit the responsibility of the
1063	guardian to the ward and to the court. The guardian is liable
1064	for the acts of the surrogate guardian. The guardian may
1065	terminate the authority of the surrogate guardian by filing a
1066	written notice of the termination with the court.
1067	(4)  The surrogate guardian is subject to the jurisdiction
1068	of the court as if appointed to serve as guardian.
1069	Section 22.  Paragraphs (c), (e), and (f) of subsection (2)
1070	and subsection (4) of section 744.464, Florida Statutes, are
1071	amended to read:
1072	744.464  Restoration to capacity.--
1073	(2)  SUGGESTION OF CAPACITY.--
1074	(c)  The court shall immediately send notice of the filing
1075	of the suggestion of capacity to the ward, the guardian, the
1076	attorney for the ward, if any, the state attorney, and any other
1077	interested persons designated by the court. Formal notice must
1078	be served on the guardian. Informal notice may be served on
1079	other persons. Notice need not be served on the person who filed
1080	the suggestion of capacity.
1081	(e)  If an objection is timely filed, or if the medical
1082	examination suggests that full restoration is not appropriate,
1083	the court shall set the matter for hearing. If the ward does not
1084	have an attorney, the court shall appoint one to represent the
1085	ward.
1086	(f)  Notice of the hearing and copies of the objections and
1087	medical examination reports shall be served upon the ward, the
1088	ward's attorney, the guardian, the state attorney, the ward's
1089	next of kin, and any other interested persons as directed by the
1090	court.
1091	(4)  TIME LIMITATION FOR FILING SUGGESTION OF
1092	CAPACITY.--Notwithstanding this section, a suggestion of
1093	capacity may not be filed within 90 days after an adjudication
1094	of incapacity or denial of restoration, unless good cause is
1095	shown.
1096	Section 23.  Paragraph (a) of subsection (19) of section
1097	744.474, Florida Statutes, is amended, and paragraph (b) of that
1098	subsection is redesignated as subsection (20) of that section
1099	and amended, to read:
1100	744.474  Reasons for removal of guardian.--A guardian may
1101	be removed for any of the following reasons, and the removal
1102	shall be in addition to any other penalties prescribed by law:
1103	(19)  Upon a showing by a person who did not receive notice
1104	of the petition for adjudication of incapacity, when such notice
1105	is required, or who is related to the ward within the
1106	relationships specified for nonresident relatives in ss.
1107	744.309(2) and 744.312(2) and who has not previously been
1108	rejected by the court as a guardian that:
1109	(a)  the current guardian is not a family member; and
1110	subsection (20) applies.
1111	(20)(b)  Upon a showing that removal of the current
1112	guardian is in the best interest of the ward, the court may
1113	remove the current guardian and appoint the petitioner, or such
1114	person as the court deems in the best interest of the ward,
1115	either as guardian of the person or of the property, or both.
1116	Section 24.  Section 744.511, Florida Statutes, is amended
1117	to read:
1118	744.511  Accounting upon removal.--A removed guardian shall
1119	file with the court a true, complete, and final report of his or
1120	her guardianship within 20 days after removal and shall serve a
1121	copy on the successor guardian and the ward, unless the ward is
1122	a minor under 14 years of age or has been determined to be
1123	totally incapacitated.
1124	Section 25.  Section 744.527, Florida Statutes, is amended
1125	to read:
1126	744.527  Final reports and application for discharge;
1127	hearing.--
1128	(1)  When the court terminates the guardianship for any of
1129	the reasons set forth in s. 744.521, the guardian shall promptly
1130	file his or her final report. If the ward has died, the guardian
1131	must file a final report with the court no later than 45 days
1132	after he or she has been served with letters of administration
1133	or letters of curatorship. If no objections are filed and if it
1134	appears that the guardian has made full and complete
1135	distribution to the person entitled and has otherwise faithfully
1136	discharged his or her duties, the court shall approve the final
1137	report. If objections are filed, the court shall conduct a
1138	hearing in the same manner as provided for a hearing on
1139	objections to annual guardianship reports.
1140	(2)  The guardian applying for discharge may is authorized
1141	to retain from the funds in his or her possession a sufficient
1142	amount to pay the final costs of administration, including
1143	guardian and attorney's fees regardless of the death of the
1144	ward, accruing between the filing of his or her final returns
1145	and the order of discharge.
1146	Section 26.  Subsection (3) of section 744.528, Florida
1147	Statutes, is amended to read:
1148	744.528  Discharge of guardian named as personal
1149	representative.--
1150	(3)  Any interested person may file a notice of The court
1151	shall set a hearing on any objections filed by the
1152	beneficiaries. Notice of the hearing must shall be served upon
1153	the guardian, beneficiaries of the ward's estate, and any other
1154	person to whom the court directs service. If a notice of hearing
1155	on the objections is not served within 90 days after filing of
1156	the objections, the objections are deemed abandoned.
1157	Section 27.  Subsections (5) through (8) of section
1158	744.708, Florida Statutes, are amended to read:
1159	744.708  Reports and standards.--
1160	(5)(a)  Each office of public guardian shall undergo an
1161	independent audit by a qualified certified public accountant
1162	shall be performed at least once every 2 years. The audit should
1163	include an investigation into the practices of the office for
1164	managing the person and property of the wards. A copy of the
1165	audit report shall be submitted to the Statewide Public
1166	Guardianship Office.
1167	(b)  In addition to regular monitoring activities, the
1168	Statewide Public Guardianship Office shall conduct an
1169	investigation into the practices of each office of public
1170	guardian related to the managing of each ward's personal affairs
1171	and property. When feasible, the investigation required under
1172	this paragraph shall be conducted in conjunction with the
1173	financial audit of each office of public guardian under
1174	paragraph (a).
1175	(c)  In addition, each the office of public guardian shall
1176	be subject to audits or examinations by the Auditor General and
1177	the Office of Program Policy Analysis and Government
1178	Accountability pursuant to law.
1179	(6)  A The public guardian shall ensure that each of the
1180	guardian's wards is personally visited ward is seen by the
1181	public guardian or by one of the guardian's a professional staff
1182	person at least once each calendar quarter four times a year.
1183	During this personal visit, the public guardian or the
1184	professional staff person shall assess:
1185	(a)  The ward's physical appearance and condition.
1186	(b)  The appropriateness of the ward's current living
1187	situation.
1188	(c)  The need for any additional services and the necessity
1189	for continuation of existing services, taking into consideration
1190	all aspects of social, psychological, educational, direct
1191	service, health, and personal care needs.
1192	(7)  The ratio for professional staff to wards shall be 1
1193	professional to 40 wards. The Statewide Public Guardianship
1194	Office may increase or decrease the ratio after consultation
1195	with the local public guardian and the chief judge of the
1196	circuit court. The basis of the decision to increase or decrease
1197	the prescribed ratio shall be reported in the annual report to
1198	the Secretary of Elderly Affairs, the Governor, the President of
1199	the Senate, the Speaker of the House of Representatives, and the
1200	Chief Justice of the Supreme Court.
1201	(8)  The term "professional," for purposes of this part,
1202	shall not include the public guardian nor the executive director
1203	of the Statewide Public Guardianship Office. The term
1204	"professional" shall be limited to those persons who exercise
1205	direct supervision of individual wards under the direction of
1206	the public guardian.
1207	Section 28.  Paragraph (a) of subsection (5) of section
1208	765.101, Florida Statutes, is amended to read:
1209	765.101  Definitions.--As used in this chapter:
1210	(5)  "Health care decision" means:
1211	(a)  Informed consent, refusal of consent, or withdrawal of
1212	consent to any and all health care, including life-prolonging
1213	procedures and mental health treatment, unless otherwise stated
1214	in the advance directives.
1215	Section 29.  Section 28.345, Florida Statutes, is amended
1216	to read:
1217	28.345  Exemption from court-related fees and
1218	charges.--Notwithstanding any other provision of this chapter or
1219	law to the contrary, judges and those court staff acting on
1220	behalf of judges, state attorneys, guardians ad litem, public
1221	guardians, attorneys ad litem, court-appointed private counsel,
1222	and public defenders, acting in their official capacity, and
1223	state agencies, are exempt from all court-related fees and
1224	charges assessed by the clerks of the circuit courts.
1225	Section 30.  Paragraph (c) of subsection (8) of section
1226	121.091, Florida Statutes, is amended to read:
1227	121.091  Benefits payable under the system.--Benefits may
1228	not be paid under this section unless the member has terminated
1229	employment as provided in s. 121.021(39)(a) or begun
1230	participation in the Deferred Retirement Option Program as
1231	provided in subsection (13), and a proper application has been
1232	filed in the manner prescribed by the department. The department
1233	may cancel an application for retirement benefits when the
1234	member or beneficiary fails to timely provide the information
1235	and documents required by this chapter and the department's
1236	rules. The department shall adopt rules establishing procedures
1237	for application for retirement benefits and for the cancellation
1238	of such application when the required information or documents
1239	are not received.
1240	(8)  DESIGNATION OF BENEFICIARIES.--
1241	(c)  Notwithstanding the member's designation of benefits
1242	to be paid through a trust to a beneficiary that is a natural
1243	person as provided in s. 121.021(46), and notwithstanding the
1244	provisions of the trust, benefits shall be paid directly to the
1245	beneficiary if the such person is no longer a minor or an
1246	incapacitated person as defined in s. 744.102(11) and (12).
1247	Section 31.  Paragraph (c) of subsection (20) of section
1248	121.4501, Florida Statutes, is amended to read:
1249	121.4501  Public Employee Optional Retirement Program.--
1250	(20)  DESIGNATION OF BENEFICIARIES.--
1251	(c)  Notwithstanding the participant's designation of
1252	benefits to be paid through a trust to a beneficiary that is a
1253	natural person, and notwithstanding the provisions of the trust,
1254	benefits shall be paid directly to the beneficiary if the such
1255	person is no longer a minor or an incapacitated person as
1256	defined in s. 744.102(11) and (12).
1257	Section 32.  Subsection (1) and paragraphs (b), (d), and
1258	(f) of subsection (4) of section 709.08, Florida Statutes, are
1259	amended to read:
1260	709.08  Durable power of attorney.--
1261	(1)  CREATION OF DURABLE POWER OF ATTORNEY.--A durable
1262	power of attorney is a written power of attorney by which a
1263	principal designates another as the principal's attorney in
1264	fact. The durable power of attorney must be in writing, must be
1265	executed with the same formalities required for the conveyance
1266	of real property by Florida law, and must contain the words:
1267	"This durable power of attorney is not affected by subsequent
1268	incapacity of the principal except as provided in s. 709.08,
1269	Florida Statutes"; or similar words that show the principal's
1270	intent that the authority conferred is exercisable
1271	notwithstanding the principal's subsequent incapacity, except as
1272	otherwise provided by this section. The durable power of
1273	attorney is exercisable as of the date of execution; however, if
1274	the durable power of attorney is conditioned upon the
1275	principal's lack of capacity to manage property as defined in s.
1276	744.102(12)(11)(a), the durable power of attorney is exercisable
1277	upon the delivery of affidavits in paragraphs (4)(c) and (d) to
1278	the third party.
1279	(4)  PROTECTION WITHOUT NOTICE; GOOD FAITH ACTS;
1280	AFFIDAVITS.--
1281	(b)  Any third party may rely upon the authority granted in
1282	a durable power of attorney that is conditioned on the
1283	principal's lack of capacity to manage property as defined in s.
1284	744.102(12)(11)(a) only after receiving the affidavits provided
1285	in paragraphs (c) and (d), and such reliance shall end when the
1286	third party has received notice as provided in subsection (5).
1287	(d)  A determination that a principal lacks the capacity to
1288	manage property as defined in s. 744.102(12)(11)(a) must be made
1289	and evidenced by the affidavit of a physician licensed to
1290	practice medicine pursuant to chapters 458 and 459 as of the
1291	date of the affidavit. A judicial determination that the
1292	principal lacks the capacity to manage property pursuant to
1293	chapter 744 is not required prior to the determination by the
1294	physician and the execution of the affidavit. For purposes of
1295	this section, the physician executing the affidavit must be the
1296	primary physician who has responsibility for the treatment and
1297	care of the principal. The affidavit executed by a physician
1298	must state where the physician is licensed to practice medicine,
1299	that the physician is the primary physician who has
1300	responsibility for the treatment and care of the principal, and
1301	that the physician believes that the principal lacks the
1302	capacity to manage property as defined in s. 744.102(12)(11)(a).
1303	The affidavit may, but need not, be in the following form:
1304
1305	STATE OF_______________
1306	COUNTY OF_______________
1307
1308	Before me, the undersigned authority, personally appeared
1309	(name of physician)  , Affiant, who swore or affirmed that:
1310	1.  Affiant is a physician licensed to practice medicine in
1311	(name of state, territory, or foreign country)  .
1312	2.  Affiant is the primary physician who has responsibility
1313	for the treatment and care of   (principal's name)  .
1314	3.  To the best of Affiant's knowledge after reasonable
1315	inquiry, Affiant believes that the principal lacks the capacity
1316	to manage property, including taking those actions necessary to
1317	obtain, administer, and dispose of real and personal property,
1318	intangible property, business property, benefits, and income.
1319
1320
1321	____________________
1322	(Affiant)
1323
1324	Sworn to (or affirmed) and subscribed before me this   (day
1325	of)     (month)  ,   (year)  , by   (name of person making
1326	statement)
1327
1328	(Signature of Notary Public-State of Florida)
1329
1330	(Print, Type, or Stamp Commissioned Name of Notary Public)
1331
1332	Personally Known OR Produced Identification
1333	(Type of Identification Produced)
1334	(f)  A third party may not rely on the authority granted in
1335	a durable power of attorney conditioned on the principal's lack
1336	of capacity to manage property as defined in s.
1337	744.102(12)(11)(a) when any affidavit presented has been
1338	executed more than 6 months prior to the first presentation of
1339	the durable power of attorney to the third party.
1340	Section 33.  Subsection (3) of section 744.1085, Florida
1341	Statutes, is amended to read:
1342	744.1085  Regulation of professional guardians;
1343	application; bond required; educational requirements.--
1344	(3)  Each professional guardian defined in s.
1345	744.102(17)(16) and public guardian must receive a minimum of 40
1346	hours of instruction and training. Each professional guardian
1347	must receive a minimum of 16 hours of continuing education every
1348	2 calendar years after the year in which the initial 40-hour
1349	educational requirement is met. The instruction and education
1350	must be completed through a course approved or offered by the
1351	Statewide Public Guardianship Office. The expenses incurred to
1352	satisfy the educational requirements prescribed in this section
1353	may not be paid with the assets of any ward. This subsection
1354	does not apply to any attorney who is licensed to practice law
1355	in this state.
1356	Section 34.  For the purpose of incorporating the amendment
1357	made by this act to section 744.3215, Florida Statutes, in a
1358	reference thereto, subsection (4) of section 117.107, Florida
1359	Statutes, is reenacted to read:
1360	117.107  Prohibited acts.--
1361	(4)  A notary public may not take the acknowledgment of or
1362	administer an oath to a person whom the notary public actually
1363	knows to have been adjudicated mentally incapacitated by a court
1364	of competent jurisdiction, where the acknowledgment or oath
1365	necessitates the exercise of a right that has been removed
1366	pursuant to s. 744.3215(2) or (3), and where the person has not
1367	been restored to capacity as a matter of record.
1368	Section 35.  Subsection (13) of section 318.18, Florida
1369	Statutes, is amended to read:
1370	318.18  Amount of civil penalties.--The penalties required
1371	for a noncriminal disposition pursuant to s. 318.14 are as
1372	follows:
1373	(13)  In addition to any penalties imposed for noncriminal
1374	traffic infractions under pursuant to this chapter or imposed
1375	for criminal violations listed in s. 318.17, notwithstanding s.
1376	318.121, a board of county commissioners or any unit of local
1377	government which is consolidated as provided by s. 9, Art. VIII
1378	of the State Constitution of 1885, as preserved by s. 6(e), Art.
1379	VIII of the Constitution of 1968:
1380	(a)  May impose by ordinance a surcharge of up to $15 for
1381	any infraction or violation to fund state court facilities. The
1382	court may shall not waive this surcharge. Up to 25 percent of
1383	the revenue from such surcharge may be used to support local law
1384	libraries provided that the county or unit of local government
1385	provides a level of service equal to that provided prior to July
1386	1, 2004, which shall include the continuation of library
1387	facilities located in or near the county courthouse or annexes.
1388	(b)  That imposed increased fees or service charges by
1389	ordinance under s. 28.2401, s. 28.241, or s. 34.041 for the
1390	purpose of securing payment of the principal and interest on
1391	bonds issued by the county before July 1, 2003, to finance state
1392	court facilities, may impose by ordinance a surcharge for any
1393	infraction or violation for the exclusive purpose of securing
1394	payment of the principal and interest on bonds issued by the
1395	county before July 1, 2003, to fund state court facilities until
1396	the date of stated maturity. The court may shall not waive this
1397	surcharge. The Such surcharge may not exceed an amount per
1398	violation calculated as the quotient of the maximum annual
1399	payment of the principal and interest on the bonds as of July 1,
1400	2003, divided by the number of traffic citations for county
1401	fiscal year 2002-2003 certified as paid by the clerk of the
1402	court of the county. The Such quotient shall be rounded up to
1403	the next highest dollar amount. The bonds may be refunded only
1404	if savings will be realized on payments of debt service and the
1405	refunding bonds are scheduled to mature on the same date or
1406	before the bonds being refunded.
1407	(c)  May impose an additional $15 surcharge to fund the
1408	county's participation in the public guardianship program under
1409	chapter 744. Imposition of this surcharge must be by vote of
1410	two-thirds of the board of county commissioners or after a
1411	referendum approved by the electors of the county. Before
1412	imposing the surcharge, the county commission must demonstrate
1413	that available revenue sources are insufficient to fund such
1414	participation. The court may not waive this surcharge.
1415
1416	A county may not impose both of the surcharges authorized under
1417	both paragraphs (a) and (b) concurrently. The clerk of court
1418	shall report, no later than 30 days after the end of the
1419	quarter, the amount of funds collected under this subsection
1420	during each quarter of the fiscal year. The clerk shall submit
1421	the report, in a format developed by the Office of State Courts
1422	Administrator, to the chief judge of the circuit, the Governor,
1423	the President of the Senate, and the Speaker of the House of
1424	Representatives.
1425	Section 36.  Section 938.065, Florida Statutes, is created
1426	to read:
1427	938.065  Additional cost for public guardianship
1428	programs.--
1429	(1)  In addition to any fine prescribed by law for any
1430	misdemeanor offense, there is assessed as a court cost an
1431	additional surcharge of $18 on each fine, which shall be imposed
1432	by each county and circuit court and collected by the clerk of
1433	the court together with the fine.
1434	(2)  The clerk of the court shall collect and forward, on a
1435	monthly basis, all costs assessed under this section, less $3
1436	per assessment as a service charge to be retained by the clerk,
1437	to the Department of Revenue for deposit into the General
1438	Revenue Fund. The funds collected shall be used exclusively to
1439	fund public guardianship programs in this state.
1440	Section 37.  This act shall take effect July 1, 2006.

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