HB 305

1	A bill to be entitled
2	An act relating to adult guardianship; designating ss.
3	415.101-415.113, F.S., as pt. I of ch. 415, F.S.; creating
4	pt. II of ch. 415, F.S., the "Uniform Adult Guardianship
5	and Protective Proceedings Jurisdiction Act"; providing
6	definitions; providing for international application of
7	the part; authorizing communication and cooperation
8	between courts; establishing procedures for taking
9	testimony in another state; providing exclusive
10	jurisdictional basis for a court in this state to appoint
11	a guardian or issue a protective order for an adult;
12	providing conditions under which a court has jurisdiction
13	to appoint a guardian or issue a protective order for a
14	respondent; providing conditions under which a court may
15	exercise special or exclusive and continuing jurisdiction
16	to appoint a guardian or issue a protective order;
17	requiring a court to dismiss a petition for appointment of
18	a guardian under certain circumstances; authorizing a
19	court to decline to exercise its jurisdiction under
20	certain circumstances; providing for determination of the
21	appropriate forum for a proceeding to appoint a guardian
22	or issue a protective order; requiring that certain
23	factors be considered in making the determination;
24	providing circumstances under which a court may decline to
25	exercise jurisdiction; authorizing the court to assess
26	specified fees, costs, and expenses under certain
27	circumstances; requiring notice of proceedings to appoint
28	a guardian or issue a protective order to comply with
29	certain requirements; providing requirements for
30	proceedings conducted in more than one state; providing
31	conditions for transfer of guardianship or conservatorship
32	to another state; providing for the court to hold a
33	hearing on a petition for transfer; providing for the
34	court to issue a provisional order granting transfer;
35	requiring the court to issue a final order confirming
36	transfer upon receipt of specified documentation;
37	providing conditions for accepting guardianship or
38	conservatorship transferred from another state; requiring
39	the guardian or conservator to petition the court for
40	transfer and providing requirements therefor; providing
41	for the court to hold a hearing on a petition for
42	transfer; providing for the court to issue a provisional
43	order granting a petition for transfer; requiring the
44	court to issue a final order accepting the proceeding upon
45	receipt of specified documentation; providing a time limit
46	on modification of guardianship or conservatorship;
47	requiring the court to recognize guardianship and
48	conservatorship orders from other states; providing
49	circumstances under which appointment of a guardian or
50	conservator may continue; permitting a guardian appointed
51	in another state to register a guardianship order under
52	certain conditions; permitting a conservator appointed in
53	another state to register a protective order under certain
54	conditions; providing for effect of registration;
55	providing for uniformity of application and construction
56	of pt. II of ch. 415, F.S.; providing for applicability of
57	the federal Electronic Signatures in Global and National
58	Commerce Act; providing for applicability; amending ss.
59	39.509, 400.0067, 400.0069, 415.101, 415.102, 415.104,
60	415.1045, 415.106, 415.107, 415.1099, 415.111, 415.1111,
61	415.112, and  415.113, F.S.; conforming references to
62	changes made by the act; providing an effective date.
63
64	Be It Enacted by the Legislature of the State of Florida:
65
66	Section 1.  Chapter 415, Florida Statutes, is designated as
67	part I of that chapter, and part II of that chapter, consisting
68	of sections 415.201, 415.202, 415.203, 415.204, 415.205,
69	415.206, 415.207, 415.208, 415.209, 415.2095, 415.211, 415.212,
70	415.213, 415.214, 415.215, 415.216, 415.217, 415.218, 415.219,
71	415.221, 415.222, and 415.223, is created to read:
72	PART II
73	UNIFORM ADULT GUARDIANSHIP AND PROTECTIVE PROCEEDINGS
74	JURISDICTION ACT
75	415.201  Short title.--This part may be cited as the
76	"Uniform Adult Guardianship and Protective Proceedings
77	Jurisdiction Act."
78	415.202  Definitions.--As used in this part:
79	(1)  "Adult" means an individual who has attained 18 years
80	of age.
81	(2)  "Conservator" means a person appointed by the court to
82	administer the property of an adult.
83	(3)  "Emergency" means a circumstance that may result in
84	substantial harm to a respondent's health, safety, or welfare
85	and for which the appointment of a guardian is necessary because
86	no other person has authority or is willing to act on the
87	respondent's behalf.
88	(4)  "Guardian" means a person appointed by the court to
89	make decisions regarding the person of an adult.
90	(5)  "Guardianship order" means an order appointing a
91	guardian.
92	(6)  "Guardianship proceeding" means a judicial proceeding
93	in which an order for the appointment of a guardian is sought or
94	has been issued.
95	(7)  "Home state" means the state in which the respondent
96	was physically present, including any period of temporary
97	absence, for at least 6 consecutive months immediately prior to
98	the filing of a petition for a protective order or the
99	appointment of a guardian or, if no guardian has been appointed,
100	the state in which the respondent was physically present,
101	including any period of temporary absence, for at least 6
102	consecutive months ending within the 6 months prior to the
103	filing of the petition.
104	(8)  "Incapacitated person" means an adult for whom a
105	guardian has been appointed.
106	(9)  "Party" means the respondent, petitioner, guardian,
107	conservator, or any other person allowed by the court to
108	participate in a guardianship or protective proceeding.
109	(10)  "Person," except when used as part of the term
110	"incapacitated person" or "protected person," means an
111	individual, corporation, business trust, estate, trust,
112	partnership, limited liability company, association, joint
113	venture, or government; governmental subdivision, agency,
114	instrumentality, or public corporation; or any other legal or
115	commercial entity.
116	(11)  "Protected person" means an adult for whom a
117	protective order has been issued.
118	(12)  "Protective order" means an order appointing a
119	conservator or other order related to the management of an
120	adult's property.
121	(13)  "Protective proceeding" means a judicial proceeding
122	in which a protective order is sought or has been issued.
123	(14)  "Record" means information that is inscribed on a
124	tangible medium or that is stored in an electronic or other
125	medium and is retrievable in perceivable form.
126	(15)  "Respondent" means an adult for whom a protective
127	order or the appointment of a guardian is sought.
128	(16)  "Significant-connection state" means a state, other
129	than the home state, with which a respondent has a significant
130	connection other than mere physical presence and in which
131	substantial evidence concerning the respondent is available.
132	(17)  "State" means a state of the United States, the
133	District of Columbia, Puerto Rico, the United States Virgin
134	Islands, a federally recognized Indian tribe, or any territory
135	or insular possession subject to the jurisdiction of the United
136	States.
137	415.203  International application of this part.--A court
138	of this state may treat a foreign country as if it were a state
139	for the purpose of applying this part.
140	415.204  Communication between courts.--A court of this
141	state may communicate with a court in another state concerning a
142	proceeding arising under this part. The court may allow the
143	parties to participate in the communication.
144	415.205  Cooperation between courts.--
145	(1)  In a guardianship or protective proceeding in this
146	state, a court of this state may request the appropriate court
147	of another state to do any of the following:
148	(a)  Hold an evidentiary hearing;
149	(b)  Order a person in that state to produce evidence or
150	give testimony pursuant to procedures of that state;
151	(c)  Order that an evaluation or assessment be made of the
152	respondent;
153	(d)  Order any appropriate investigation of a person
154	involved in a proceeding;
155	(e)  Forward to the court of this state a certified copy of
156	the transcript or other record of a hearing under paragraph (a)
157	or any other proceeding, any evidence otherwise produced under
158	paragraph (b), and any evaluation or assessment prepared in
159	compliance with an order under paragraph (c) or paragraph (d);
160	(f)  Issue any order necessary to ensure the appearance in
161	the proceeding of a person whose presence is necessary for the
162	court to make a determination, including the respondent or the
163	incapacitated or protected person; or
164	(g)  Issue an order authorizing the release of medical,
165	financial, criminal, or other relevant information in that
166	state, including protected health information as defined in 45
167	C.F.R. s. 164.504.
168	(2)  If a court of another state in which a guardianship or
169	protective proceeding is pending requests assistance as provided
170	in subsection (1), a court of this state has jurisdiction for
171	the limited purpose of granting the request or making reasonable
172	efforts to comply with the request.
173	415.206  Taking testimony in another state.--
174	(1)  In addition to other procedures that may be available,
175	in a guardianship or protective proceeding testimony of a
176	witness who is located in another state may be offered by
177	deposition or other means allowable in this state for testimony
178	taken in another state. The court on its own motion may order
179	that the testimony of a witness be taken in another state and
180	may prescribe the manner in which and the terms upon which the
181	testimony is to be taken.
182	(2)  In a guardianship or protective proceeding, a court in
183	this state may permit a witness located in another state to be
184	deposed or to testify by telephone or audiovisual or other
185	electronic means. A court of this state shall cooperate with the
186	court of the other state in designating an appropriate location
187	for the deposition or testimony.
188	(3)  Documentary evidence transmitted from another state to
189	a court of this state by technological means that do not produce
190	an original writing may not be excluded from evidence on an
191	objection based on the best evidence rule pursuant to s. 90.952.
192	415.207  Exclusive basis.--This part provides the exclusive
193	jurisdictional basis for a court of this state to appoint a
194	guardian or issue a protective order for an adult.
195	415.208  Jurisdiction.--
196	(1)  A court of this state has jurisdiction to appoint a
197	guardian or issue a protective order for a respondent if:
198	(a)  This state is the respondent's home state;
199	(b)  On the date the petition is filed, this state is a
200	significant-connection state and:
201	1.  The respondent does not have a home state or a court of
202	the respondent's home state has declined to exercise
203	jurisdiction because this state is a more appropriate forum; or
204	2.  The respondent has a home state, a petition for an
205	appointment or order is not pending in a court of that state or
206	another significant-connection state, and, before the court
207	makes the appointment or issues the order:
208	a.  A petition for an appointment or order is not filed in
209	the respondent's home state;
210	b.  An objection to the court's jurisdiction is not filed
211	by a person required to be notified of the proceeding; and
212	c.  The court in this state concludes that it is an
213	appropriate forum under s. 415.211;
214	(c)  This state does not have jurisdiction under paragraph
215	(a) or paragraph (b), the respondent's home state and all
216	significant-connection states have declined to exercise
217	jurisdiction because this state is the more appropriate forum,
218	and jurisdiction in this state is consistent with the State
219	Constitution and the Constitution and laws of the United States;
220	or
221	(d)  The requirements for special jurisdiction under s.
222	415.209 are met.
223	(2)  For purposes of determining under this section and s.
224	415.215(5) whether a respondent has a significant connection
225	with a particular state, the court shall consider:
226	(a)  The location of the respondent's family and other
227	persons required to be notified of the guardianship or
228	protective proceeding;
229	(b)  The length of time the respondent was physically
230	present at any time in the state and the duration of any
231	absence;
232	(c)  The location of the respondent's property; and
233	(d)  The extent to which the respondent has ties to the
234	state as evidenced by a voter registration record, filed state
235	or local tax returns, a vehicle registration certificate, a
236	driver's license, social relationships, or receipts for
237	services.
238	415.209  Special jurisdiction.--
239	(1)  A court of this state lacking jurisdiction under s.
240	415.2095 has special jurisdiction to do any of the following:
241	(a)  Appoint a guardian in an emergency for a term not
242	exceeding 90 days for a respondent who is physically present in
243	this state;
244	(b)  Issue a protective order with respect to real or
245	tangible personal property located in this state; or
246	(c)  Appoint a guardian or conservator for an incapacitated
247	or protected person for whom a provisional order to transfer the
248	proceeding from another state has been issued under procedures
249	similar to those provided in s. 415.215.
250	(2)  If a petition for the appointment of a guardian in an
251	emergency is brought in this state and this state was not the
252	respondent's home state on the date the petition was filed, the
253	court shall dismiss the proceeding at the request of the court
254	of the home state, if any, whether dismissal is requested before
255	or after the emergency appointment.
256	415.2095  Exclusive and continuing jurisdiction.--Except as
257	otherwise provided in s. 415.209, a court that has appointed a
258	guardian or issued a protective order consistent with this part
259	has exclusive and continuing jurisdiction over the proceeding
260	until it is terminated by the court or the appointment or order
261	expires by its own terms.
262	415.211  Appropriate forum.--
263	(1)  A court of this state having jurisdiction under s.
264	415.208 to appoint a guardian or issue a protective order may
265	decline to exercise its jurisdiction if it determines at any
266	time that a court of another state is a more appropriate forum.
267	(2)  If a court of this state declines to exercise its
268	jurisdiction under subsection (1), it shall either dismiss or
269	stay the proceeding. The court may impose any condition the
270	court considers just and proper, including the condition that a
271	petition for the appointment of a guardian or issuance of a
272	protective order be filed promptly in another state.
273	(3)  In determining whether it is an appropriate forum, the
274	court shall consider all relevant factors, including:
275	(a)  Any expressed preference of the respondent.
276	(b)  Whether abuse, neglect, or exploitation of the
277	respondent has occurred or is likely to occur and which state
278	could best protect the respondent from the abuse, neglect, or
279	exploitation.
280	(c)  The length of time the respondent was physically
281	present in or was a legal resident of this or another state.
282	(d)  The distance of the respondent from the court in each
283	state.
284	(e)  The financial circumstances of the respondent's
285	estate.
286	(f)  The nature and location of the evidence.
287	(g)  The ability of the court in each state to decide the
288	issue expeditiously and the procedures necessary to present
289	evidence.
290	(h)  The familiarity of the court of each state with the
291	facts and issues in the proceeding.
292	(i)  If an appointment is made, the court's ability to
293	monitor the conduct of the guardian or conservator.
294	415.212  Jurisdiction declined by reason of conduct.--
295	(1)  If at any time a court of this state determines that
296	it acquired jurisdiction to appoint a guardian or issue a
297	protective order because of unjustifiable conduct, the court
298	may:
299	(a)  Decline to exercise jurisdiction;
300	(b)  Exercise jurisdiction for the limited purpose of
301	fashioning an appropriate remedy to ensure the health, safety,
302	and welfare of the respondent or the protection of the
303	respondent's property or prevent a repetition of the
304	unjustifiable conduct, including staying the proceeding until a
305	petition for the appointment of a guardian or issuance of a
306	protective order is filed in a court of another state having
307	jurisdiction; or
308	(c)  Continue to exercise jurisdiction after considering:
309	1.  The extent to which the respondent and all persons
310	required to be notified of the proceedings have acquiesced in
311	the exercise of the court's jurisdiction;
312	2.  Whether a court of this state is a more appropriate
313	forum than the court of any other state pursuant to the factors
314	set forth in s. 415.211(3); and
315	3.  Whether the court of any other state would have
316	jurisdiction under factual circumstances in substantial
317	conformity with the jurisdictional standards of s. 415.208.
318	(2)  If a court of this state determines that it acquired
319	jurisdiction to appoint a guardian or issue a protective order
320	because a party seeking to invoke its jurisdiction engaged in
321	unjustifiable conduct, it may assess against that party
322	necessary and reasonable expenses, including attorney's fees,
323	investigative fees, court costs, communication expenses, witness
324	fees and expenses, and travel expenses. The court may not assess
325	fees, costs, or expenses of any kind against this state or a
326	governmental subdivision, agency, or instrumentality of this
327	state unless authorized by law other than this part.
328	415.213  Notice of proceeding.--If a petition for the
329	appointment of a guardian or issuance of a protective order is
330	brought in this state and this state was not the respondent's
331	home state on the date the petition was filed, in addition to
332	complying with the notice requirements of this state, notice of
333	the petition must be given to those persons who would be
334	entitled to notice of the petition if a proceeding were brought
335	in the respondent's home state. The notice must be given in the
336	same manner as notice is required to be given in this state.
337	415.214  Proceedings in more than one state.--Except for a
338	petition for the appointment of a guardian in an emergency under
339	s. 415.209(1)(a) or issuance of a protective order limited to
340	property located in this state under s. 415.209(1)(b), if a
341	petition for the appointment of a guardian or issuance of a
342	protective order is filed in this state and in another state and
343	neither petition has been dismissed or withdrawn, the following
344	requirements apply:
345	(1)  If the court in this state has jurisdiction under s.
346	415.208, it may proceed with the case unless a court in another
347	state acquires jurisdiction under provisions similar to s.
348	415.208 before the appointment of the guardian or issuance of
349	the order.
350	(2)  If the court in this state does not have jurisdiction
351	under s. 415.208, whether at the time the petition is filed or
352	at any time before the appointment of the guardian or issuance
353	of the order, the court shall stay the proceeding and
354	communicate with the court in the other state. If the court in
355	the other state has jurisdiction, the court in this state shall
356	dismiss the petition unless the court in the other state
357	determines that the court in this state is a more appropriate
358	forum.
359	415.215  Transfer of guardianship or conservatorship to
360	another state.--
361	(1)  A guardian or conservator appointed in this state may
362	petition the court to transfer the guardianship or
363	conservatorship to another state.
364	(2)  Notice of a petition under subsection (1) must be
365	given to the persons who would be entitled to notice of a
366	petition in this state for the appointment of a guardian or
367	conservator.
368	(3)  On the court's own motion or on request of the
369	guardian or conservator, the incapacitated or protected person,
370	or any other person required to be notified of the petition, the
371	court shall hold a hearing on a petition filed pursuant to
372	subsection (1).
373	(4)  The court shall issue a provisional order granting a
374	petition to transfer a guardianship and shall direct the
375	guardian to petition for guardianship in the other state if the
376	court is satisfied that the guardianship will be accepted by the
377	court in the other state and the court finds that:
378	(a)  The incapacitated person is physically present in or
379	is reasonably expected to move permanently to the other state.
380	(b)  An objection to the transfer has not been made or, if
381	an objection has been made, the objector has not established
382	that the transfer would be contrary to the interests of the
383	incapacitated person.
384	(c)  Plans for care and services for the incapacitated
385	person in the other state are reasonable and sufficient.
386	(5)  The court shall issue a provisional order granting a
387	petition to transfer a conservatorship and shall direct the
388	conservator to petition for conservatorship in the other state
389	if the court is satisfied that the conservatorship will be
390	accepted by the court of the other state and the court finds
391	that:
392	(a)  The protected person is physically present in or is
393	reasonably expected to move permanently to the other state or
394	the protected person has a significant connection to the other
395	state pursuant to the factors set forth in s. 415.208(2).
396	(b)  An objection to the transfer has not been made or, if
397	an objection has been made, the objector has not established
398	that the transfer would be contrary to the interests of the
399	protected person.
400	(c)  Adequate arrangements will be made for management of
401	the protected person's property.
402	(6)  The court shall issue a final order confirming the
403	transfer and terminating the guardianship or conservatorship
404	upon its receipt of both of the following:
405	(a)  A provisional order accepting the proceeding from the
406	court to which the proceeding is to be transferred which is
407	issued under provisions similar to s. 415.216.
408	(b)  The documents required to terminate a guardianship or
409	conservatorship in this state.
410	415.216  Accepting guardianship or conservatorship
411	transferred from another state.--
412	(1)  To confirm transfer of a guardianship or
413	conservatorship transferred to this state under provisions
414	similar to s. 415.215, the guardian or conservator must petition
415	the court in this state to accept the guardianship or
416	conservatorship. The petition must include a certified copy of
417	the other state's provisional order of transfer.
418	(2)  Notice of a petition under subsection (1) must be
419	given to those persons who would be entitled to notice if the
420	petition were a petition for the appointment of a guardian or
421	issuance of a protective order in both the transferring state
422	and this state. The notice must be given in the same manner as
423	notice is required to be given in this state.
424	(3)  On the court's own motion or on request of the
425	guardian or conservator, the incapacitated or protected person,
426	or any other person required to be notified of the proceeding,
427	the court shall hold a hearing on a petition filed pursuant to
428	subsection (1).
429	(4)  The court shall issue a provisional order granting a
430	petition filed under subsection (1), unless:
431	(a)  An objection is made and the objector establishes that
432	transfer of the proceeding would be contrary to the interests of
433	the incapacitated or protected person; or
434	(b)  The guardian or conservator is ineligible for
435	appointment in this state.
436	(5)  The court shall issue a final order accepting the
437	proceeding and appointing the guardian or conservator as
438	guardian or conservator in this state upon its receipt from the
439	court from which the proceeding is being transferred of a final
440	order issued under provisions similar to s. 415.215 transferring
441	the proceeding to this state.
442	(6)  Not later than 90 days after issuance of a final order
443	accepting transfer of a guardianship or conservatorship, the
444	court shall determine whether the guardianship or
445	conservatorship needs to be modified to conform to the laws of
446	this state.
447	(7)  In granting a petition under this section, the court
448	shall recognize a guardianship or conservatorship order from the
449	other state, including the determination of the incapacitated or
450	protected person's incapacity and the appointment of the
451	guardian or conservator.
452	(8)  The denial by a court of this state of a petition to
453	accept a guardianship or conservatorship transferred from
454	another state does not affect the ability of the guardian or
455	conservator to seek appointment as a guardian or conservator in
456	this state if the court has jurisdiction to make an appointment
457	other than by reason of the provisional order of transfer.
458	415.217  Registration of guardianship orders.--If a
459	guardian has been appointed in another state and a petition for
460	the appointment of a guardian is not pending in this state, the
461	guardian appointed in the other state, after giving notice to
462	the appointing court of an intent to register, may register the
463	guardianship order in this state by filing certified copies of
464	the order and letters of office as a foreign judgment in a court
465	in any appropriate county of this state.
466	415.218  Registration of protective orders.--If a
467	conservator has been appointed in another state and a petition
468	for a protective order is not pending in this state, the
469	conservator appointed in the other state, after giving notice to
470	the appointing court of an intent to register, may register the
471	protective order in this state by filing certified copies of the
472	order, letters of office, and any bond as a foreign judgment in
473	a court of this state in any county in which property belonging
474	to the protected person is located.
475	415.219  Effect of registration.--
476	(1)  Upon registration of a guardianship or protective
477	order from another state, the guardian or conservator may
478	exercise in this state all powers authorized in the order of
479	appointment, except as prohibited under the laws of this state,
480	including maintaining actions and proceedings in this state,
481	subject to any conditions imposed upon nonresident parties if
482	the guardian or conservator is not a resident of this state.
483	(2)  A court of this state may grant any relief available
484	under this part and other laws of this state to enforce a
485	registered order.
486	415.221  Uniformity of application and construction.--In
487	applying and construing this uniform act, consideration must be
488	given to the need to promote uniformity of the law with respect
489	to its subject matter among states that enact it.
490	415.222  Applicability of federal Electronic Signatures in
491	Global and National Commerce Act.--This part modifies, limits,
492	and supersedes the federal Electronic Signatures in Global and
493	National Commerce Act, 15 U.S.C. ss. 7001 et seq., but does not
494	modify, limit, or supersede s. 101(c) of the act or authorize
495	electronic delivery of the notices described in s. 103(b) of the
496	act.
497	415.223  Applicability.--
498	(1)  This part applies to guardianship and protective
499	proceedings begun on or after July 1, 2009.
500	(2)  Sections 415.201-415.206 and 415.215-415.222 apply to
501	proceedings begun before July 1, 2009, regardless of whether a
502	guardianship or protective order has been issued.
503	Section 2.  Paragraph (c) of subsection (6) of section
504	39.509, Florida Statutes, is amended to read:
505	39.509  Grandparents rights.--Notwithstanding any other
506	provision of law, a maternal or paternal grandparent as well as
507	a stepgrandparent is entitled to reasonable visitation with his
508	or her grandchild who has been adjudicated a dependent child and
509	taken from the physical custody of the parent unless the court
510	finds that such visitation is not in the best interest of the
511	child or that such visitation would interfere with the goals of
512	the case plan. Reasonable visitation may be unsupervised and,
513	where appropriate and feasible, may be frequent and continuing.
514	Any order for visitation or other contact must conform to the
515	provisions of s. 39.0139.
516	(6)  In determining whether grandparental visitation is not
517	in the child's best interest, consideration may be given to the
518	following:
519	(c)  A report of abuse, abandonment, or neglect under ss.
520	415.101-415.113 or this chapter or part I of chapter 415 and the
521	outcome of the investigation concerning such report.
522	Section 3.  Paragraph (c) of subsection (2) of section
523	400.0067, Florida Statutes, is amended to read:
524	400.0067  State Long-Term Care Ombudsman Council; duties;
525	membership.--
526	(2)  The State Long-Term Care Ombudsman Council shall:
527	(c)  Assist the ombudsman to discover, investigate, and
528	determine the existence of abuse or neglect in any long-term
529	care facility, and work with the adult protective services
530	program as required in part I of chapter 415 ss. 415.101-
531	415.113.
532	Section 4.  Paragraph (b) of subsection (2) of section
533	400.0069, Florida Statutes, is amended to read:
534	400.0069  Local long-term care ombudsman councils; duties;
535	membership.--
536	(2)  The duties of the local councils are to:
537	(b)  Discover, investigate, and determine the existence of
538	abuse or neglect in any long-term care facility and to use the
539	procedures provided for in part I of chapter 415 ss. 415.101-
540	415.113 when applicable.
541	Section 5.  Subsection (1) of section 415.101, Florida
542	Statutes, is amended to read:
543	415.101  Adult Protective Services Act; legislative
544	intent.--
545	(1)  This part Sections 415.101-415.113 may be cited as the
546	"Adult Protective Services Act."
547	Section 6.  Section 415.102, Florida Statutes, is amended
548	to read:
549	415.102  Definitions of terms used in ss. 415.101-
550	415.113.--As used in this part ss. 415.101-415.113, the term:
551	(1)  "Abuse" means any willful act or threatened act by a
552	relative, caregiver, or household member which causes or is
553	likely to cause significant impairment to a vulnerable adult's
554	physical, mental, or emotional health. Abuse includes acts and
555	omissions.
556	(2)  "Alleged perpetrator" means a person who has been
557	named by a reporter as the person responsible for abusing,
558	neglecting, or exploiting a vulnerable adult.
559	(3)  "Capacity to consent" means that a vulnerable adult
560	has sufficient understanding to make and communicate responsible
561	decisions regarding the vulnerable adult's person or property,
562	including whether or not to accept protective services offered
563	by the department.
564	(4)  "Caregiver" means a person who has been entrusted with
565	or has assumed the responsibility for frequent and regular care
566	of or services to a vulnerable adult on a temporary or permanent
567	basis and who has a commitment, agreement, or understanding with
568	that person or that person's guardian that a caregiver role
569	exists. "Caregiver" includes, but is not limited to, relatives,
570	household members, guardians, neighbors, and employees and
571	volunteers of facilities as defined in subsection (8). For the
572	purpose of departmental investigative jurisdiction, the term
573	"caregiver" does not include law enforcement officers or
574	employees of municipal or county detention facilities or the
575	Department of Corrections while acting in an official capacity.
576	(5)  "Deception" means a misrepresentation or concealment
577	of a material fact relating to services rendered, disposition of
578	property, or the use of property intended to benefit a
579	vulnerable adult.
580	(6)  "Department" means the Department of Children and
581	Family Services.
582	(7)(a)  "Exploitation" means a person who:
583	1.  Stands in a position of trust and confidence with a
584	vulnerable adult and knowingly, by deception or intimidation,
585	obtains or uses, or endeavors to obtain or use, a vulnerable
586	adult's funds, assets, or property with the intent to
587	temporarily or permanently deprive a vulnerable adult of the
588	use, benefit, or possession of the funds, assets, or property
589	for the benefit of someone other than the vulnerable adult; or
590	2.  Knows or should know that the vulnerable adult lacks
591	the capacity to consent, and obtains or uses, or endeavors to
592	obtain or use, the vulnerable adult's funds, assets, or property
593	with the intent to temporarily or permanently deprive the
594	vulnerable adult of the use, benefit, or possession of the
595	funds, assets, or property for the benefit of someone other than
596	the vulnerable adult.
597	(b)  "Exploitation" may include, but is not limited to:
598	1.  Breaches of fiduciary relationships, such as the misuse
599	of a power of attorney or the abuse of guardianship duties,
600	resulting in the unauthorized appropriation, sale, or transfer
601	of property;
602	2.  Unauthorized taking of personal assets;
603	3.  Misappropriation, misuse, or transfer of moneys
604	belonging to a vulnerable adult from a personal or joint
605	account; or
606	4.  Intentional or negligent failure to effectively use a
607	vulnerable adult's income and assets for the necessities
608	required for that person's support and maintenance.
609	(8)  "Facility" means any location providing day or
610	residential care or treatment for vulnerable adults. The term
611	"facility" may include, but is not limited to, any hospital,
612	state institution, nursing home, assisted living facility, adult
613	family-care home, adult day care center, residential facility
614	licensed under chapter 393, adult day training center, or mental
615	health treatment center.
616	(9)  "False report" means a report of abuse, neglect, or
617	exploitation of a vulnerable adult to the central abuse hotline
618	which is not true and is maliciously made for the purpose of:
619	(a)  Harassing, embarrassing, or harming another person;
620	(b)  Personal financial gain for the reporting person;
621	(c)  Acquiring custody of a vulnerable adult; or
622	(d)  Personal benefit for the reporting person in any other
623	private dispute involving a vulnerable adult.
624
625	The term "false report" does not include a report of abuse,
626	neglect, or exploitation of a vulnerable adult which is made in
627	good faith to the central abuse hotline.
628	(10)  "Fiduciary relationship" means a relationship based
629	upon the trust and confidence of the vulnerable adult in the
630	caregiver, relative, household member, or other person entrusted
631	with the use or management of the property or assets of the
632	vulnerable adult. The relationship exists where there is a
633	special confidence reposed in one who in equity and good
634	conscience is bound to act in good faith and with due regard to
635	the interests of the vulnerable adult. For the purposes of this
636	part, a fiduciary relationship may be formed by an informal
637	agreement between the vulnerable adult and the other person and
638	does not require a formal declaration or court order for its
639	existence. A fiduciary relationship includes, but is not limited
640	to, court-appointed or voluntary guardians, trustees, attorneys,
641	or conservators of a vulnerable adult's assets or property.
642	(11)  "Guardian" means a person who has been appointed by a
643	court to act on behalf of a person; a preneed guardian, as
644	provided in chapter 744; or a health care surrogate expressly
645	designated as provided in chapter 765.
646	(12)  "In-home services" means the provision of nursing,
647	personal care, supervision, or other services to vulnerable
648	adults in their own homes.
649	(13)  "Intimidation" means the communication by word or act
650	to a vulnerable adult that that person will be deprived of food,
651	nutrition, clothing, shelter, supervision, medicine, medical
652	services, money, or financial support or will suffer physical
653	violence.
654	(14)  "Lacks capacity to consent" means a mental impairment
655	that causes a vulnerable adult to lack sufficient understanding
656	or capacity to make or communicate responsible decisions
657	concerning person or property, including whether or not to
658	accept protective services.
659	(15)  "Neglect" means the failure or omission on the part
660	of the caregiver or vulnerable adult to provide the care,
661	supervision, and services necessary to maintain the physical and
662	mental health of the vulnerable adult, including, but not
663	limited to, food, clothing, medicine, shelter, supervision, and
664	medical services, which a prudent person would consider
665	essential for the well-being of a vulnerable adult. The term
666	"neglect" also means the failure of a caregiver or vulnerable
667	adult to make a reasonable effort to protect a vulnerable adult
668	from abuse, neglect, or exploitation by others. "Neglect" is
669	repeated conduct or a single incident of carelessness which
670	produces or could reasonably be expected to result in serious
671	physical or psychological injury or a substantial risk of death.
672	(16)  "Obtains or uses" means any manner of:
673	(a)  Taking or exercising control over property;
674	(b)  Making any use, disposition, or transfer of property;
675	(c)  Obtaining property by fraud, willful misrepresentation
676	of a future act, or false promise; or
677	(d)1.  Conduct otherwise known as stealing; larceny;
678	purloining; abstracting; embezzlement; misapplication;
679	misappropriation; conversion; or obtaining money or property by
680	false pretenses, fraud, or deception; or
681	2.  Other conduct similar in nature.
682	(17)  "Position of trust and confidence" with respect to a
683	vulnerable adult means the position of a person who:
684	(a)  Is a parent, spouse, adult child, or other relative by
685	blood or marriage;
686	(b)  Is a joint tenant or tenant in common;
687	(c)  Has a legal or fiduciary relationship, including, but
688	not limited to, a court-appointed or voluntary guardian,
689	trustee, attorney, or conservator; or
690	(d)  Is a caregiver or any other person who has been
691	entrusted with or has assumed responsibility for the use or
692	management of the vulnerable adult's funds, assets, or property.
693	(18)  "Protective investigation" means acceptance of a
694	report from the central abuse hotline alleging abuse, neglect,
695	or exploitation as defined in this section; investigation of the
696	report; determination as to whether action by the court is
697	warranted; and referral of the vulnerable adult to another
698	public or private agency when appropriate.
699	(19)  "Protective investigator" means an authorized agent
700	of the department who receives and investigates reports of
701	abuse, neglect, or exploitation of vulnerable adults.
702	(20)  "Protective services" means services to protect a
703	vulnerable adult from further occurrences of abuse, neglect, or
704	exploitation. Such services may include, but are not limited to,
705	protective supervision, placement, and in-home and community-
706	based services.
707	(21)  "Protective supervision" means those services
708	arranged for or implemented by the department to protect
709	vulnerable adults from further occurrences of abuse, neglect, or
710	exploitation.
711	(22)  "Psychological injury" means an injury to the
712	intellectual functioning or emotional state of a vulnerable
713	adult as evidenced by an observable or measurable reduction in
714	the vulnerable adult's ability to function within that person's
715	customary range of performance and that person's behavior.
716	(23)  "Records" means all documents, papers, letters, maps,
717	books, tapes, photographs, films, sound recordings, videotapes,
718	or other material, regardless of physical form or
719	characteristics, made or received pursuant to a protective
720	investigation.
721	(24)  "Sexual abuse" means acts of a sexual nature
722	committed in the presence of a vulnerable adult without that
723	person's informed consent. "Sexual abuse" includes, but is not
724	limited to, the acts defined in s. 794.011(1)(h), fondling,
725	exposure of a vulnerable adult's sexual organs, or the use of a
726	vulnerable adult to solicit for or engage in prostitution or
727	sexual performance. "Sexual abuse" does not include any act
728	intended for a valid medical purpose or any act that may
729	reasonably be construed to be normal caregiving action or
730	appropriate display of affection.
731	(25)  "Victim" means any vulnerable adult named in a report
732	of abuse, neglect, or exploitation.
733	(26)  "Vulnerable adult" means a person 18 years of age or
734	older whose ability to perform the normal activities of daily
735	living or to provide for his or her own care or protection is
736	impaired due to a mental, emotional, long-term physical, or
737	developmental disability or dysfunctioning, or brain damage, or
738	the infirmities of aging.
739	(27)  "Vulnerable adult in need of services" means a
740	vulnerable adult who has been determined by a protective
741	investigator to be suffering from the ill effects of neglect not
742	caused by a second party perpetrator and is in need of
743	protective services or other services to prevent further harm.
744	Section 7.  Subsection (2) of section 415.104, Florida
745	Statutes, is amended to read:
746	415.104  Protective investigations of cases of abuse,
747	neglect, or exploitation of vulnerable adults; transmittal of
748	records to state attorney.--
749	(2)  Upon commencing an investigation, the protective
750	investigator shall inform all of the vulnerable adults and
751	alleged perpetrators named in the report of the following:
752	(a)  The names of the investigators and identifying
753	credentials from the department.
754	(b)  The purpose of the investigation.
755	(c)  That the victim, the victim's guardian, the victim's
756	caregiver, and the alleged perpetrator, and legal counsel for
757	any of those persons, have a right to a copy of the report at
758	the conclusion of the investigation.
759	(d)  The name and telephone number of the protective
760	investigator's supervisor available to answer questions.
761	(e)  That each person has the right to obtain his or her
762	own attorney.
763
764	Any person being interviewed by a protective investigator may be
765	represented by an attorney, at the person's own expense, or may
766	choose to have another person present. The other person present
767	may not be an alleged perpetrator in any report currently under
768	investigation. Before participating in such interview, the other
769	person present shall execute an agreement to comply with the
770	confidentiality requirements of this part ss. 415.101-415.113.
771	The absence of an attorney or other person does not prevent the
772	department from proceeding with other aspects of the
773	investigation, including interviews with other persons. In an
774	investigative interview with a vulnerable adult, the protective
775	investigator may conduct the interview with no other person
776	present.
777	Section 8.  Subsection (3), paragraph (b) of subsection
778	(4), and subsection (6) of section 415.1045, Florida Statutes,
779	are amended to read:
780	415.1045  Photographs, videotapes, and medical
781	examinations; abrogation of privileged communications;
782	confidential records and documents.--
783	(3)  ABROGATION OF PRIVILEGED COMMUNICATIONS.--The
784	privileged quality of communication between husband and wife and
785	between any professional and the professional's patient or
786	client, and any other privileged communication except that
787	between attorney and client or clergy and person, as such
788	communication relates to both the competency of the witness and
789	to the exclusion of confidential communications, does not apply
790	to any situation involving known or suspected abuse, neglect, or
791	exploitation of a vulnerable adult and does not constitute
792	grounds for failure to report as required by s. 415.1034, for
793	failure to cooperate with law enforcement or the department in
794	its activities under this part ss. 415.101-415.113, or for
795	failure to give evidence in any judicial or administrative
796	proceeding relating to abuse, neglect, or exploitation of a
797	vulnerable adult.
798	(4)  MEDICAL, SOCIAL, OR FINANCIAL RECORDS OR DOCUMENTS.--
799	(b)  The confidentiality of any medical, social, or
800	financial record or document that is confidential under state
801	law does not constitute grounds for failure to:
802	1.  Report as required by s. 415.1034;
803	2.  Cooperate with the department in its activities under
804	this part ss. 415.101-415.113;
805	3.  Give access to such records or documents; or
806	4.  Give evidence in any judicial or administrative
807	proceeding relating to abuse, neglect, or exploitation of a
808	vulnerable adult.
809	(6)  WORKING AGREEMENTS.--By March 1, 2004, the department
810	shall enter into working agreements with the jurisdictionally
811	responsible county sheriffs' office or local police department
812	that will be the lead agency when conducting any criminal
813	investigation arising from an allegation of abuse, neglect, or
814	exploitation of a vulnerable adult. The working agreement must
815	specify how the requirements of this part chapter will be met.
816	The Office of Program Policy Analysis and Government
817	Accountability shall conduct a review of the efficacy of the
818	agreements and report its findings to the Legislature by March
819	1, 2005. For the purposes of such agreement, the
820	jurisdictionally responsible law enforcement entity is
821	authorized to share Florida criminal history and local criminal
822	history information that is not otherwise exempt from s.
823	119.07(1) with the district personnel. A law enforcement entity
824	entering into such agreement must comply with s. 943.0525.
825	Criminal justice information provided by such law enforcement
826	entity shall be used only for the purposes specified in the
827	agreement and shall be provided at no charge. Notwithstanding
828	any other provision of law, the Department of Law Enforcement
829	shall provide to the department electronic access to Florida
830	criminal justice information which is lawfully available and not
831	exempt from s. 119.07(1), only for the purpose of protective
832	investigations and emergency placement. As a condition of access
833	to such information, the department shall be required to execute
834	an appropriate user agreement addressing the access, use,
835	dissemination, and destruction of such information and to comply
836	with all applicable laws and rules of the Department of Law
837	Enforcement.
838	Section 9.  Subsection (1) of section 415.106, Florida
839	Statutes, is amended to read:
840	415.106  Cooperation by the department and criminal justice
841	and other agencies.--
842	(1)  All criminal justice agencies have a duty and
843	responsibility to cooperate fully with the department so as to
844	enable the department to fulfill its responsibilities under this
845	part ss. 415.101-415.113. Such duties include, but are not
846	limited to, forced entry, emergency removal, emergency
847	transportation, and the enforcement of court orders obtained
848	under this part ss. 415.101-415.113.
849	Section 10.  Subsection (1) of section 415.107, Florida
850	Statutes, is amended to read:
851	415.107  Confidentiality of reports and records.--
852	(1)  In order to protect the rights of the individual or
853	other persons responsible for the welfare of a vulnerable adult,
854	all records concerning reports of abuse, neglect, or
855	exploitation of the vulnerable adult, including reports made to
856	the central abuse hotline, and all records generated as a result
857	of such reports shall be confidential and exempt from s.
858	119.07(1) and may not be disclosed except as specifically
859	authorized by this part ss. 415.101-415.113.
860	Section 11.  Section 415.1099, Florida Statutes, is amended
861	to read:
862	415.1099  Court and witness fees not allowed.--In all
863	proceedings under this part ss. 415.101-415.113, court fees must
864	not be charged to the department; to any party to a petition; to
865	any legal custodian of records, documents, or persons; or to any
866	adult named in a summons. In a proceeding under this part ss.
867	415.101-415.113, witness fees are not allowed to the department;
868	to any party to a petition; to any legal custodian of records,
869	documents, or persons; or to any adult named in a summons.
870	Section 12.  Subsection (2) of section 415.111, Florida
871	Statutes, is amended to read:
872	415.111  Criminal penalties.--
873	(2)  A person who knowingly and willfully makes public or
874	discloses any confidential information contained in the central
875	abuse hotline, or in other computer systems, or in the records
876	of any case of abuse, neglect, or exploitation of a vulnerable
877	adult, except as provided in this part ss. 415.101-415.113,
878	commits a misdemeanor of the second degree, punishable as
879	provided in s. 775.082 or s. 775.083.
880	Section 13.  Section 415.1111, Florida Statutes, is amended
881	to read:
882	415.1111  Civil actions.--A vulnerable adult who has been
883	abused, neglected, or exploited as specified in this part
884	chapter has a cause of action against any perpetrator and may
885	recover actual and punitive damages for such abuse, neglect, or
886	exploitation. The action may be brought by the vulnerable adult,
887	or that person's guardian, by a person or organization acting on
888	behalf of the vulnerable adult with the consent of that person
889	or that person's guardian, or by the personal representative of
890	the estate of a deceased victim without regard to whether the
891	cause of death resulted from the abuse, neglect, or
892	exploitation. The action may be brought in any court of
893	competent jurisdiction to enforce such action and to recover
894	actual and punitive damages for any deprivation of or
895	infringement on the rights of a vulnerable adult. A party who
896	prevails in any such action may be entitled to recover
897	reasonable attorney's fees, costs of the action, and damages.
898	The remedies provided in this section are in addition to and
899	cumulative with other legal and administrative remedies
900	available to a vulnerable adult. Notwithstanding the foregoing,
901	any civil action for damages against any licensee or entity who
902	establishes, controls, conducts, manages, or operates a facility
903	licensed under part II of chapter 400 relating to its operation
904	of the licensed facility shall be brought pursuant to s.
905	400.023, or against any licensee or entity who establishes,
906	controls, conducts, manages, or operates a facility licensed
907	under part I of chapter 429 relating to its operation of the
908	licensed facility shall be brought pursuant to s. 429.29. Such
909	licensee or entity shall not be vicariously liable for the acts
910	or omissions of its employees or agents or any other third party
911	in an action brought under this section.
912	Section 14.  Section 415.112, Florida Statutes, is amended
913	to read:
914	415.112  Rules for implementation of ss. 415.101-
915	415.113.--The department may adopt shall promulgate rules
916	pursuant to ss. 120.536(1) and 120.54 to implement provisions of
917	this part conferring duties upon it for the implementation of
918	ss. 415.101-415.113.
919	Section 15.  Section 415.113, Florida Statutes, is amended
920	to read:
921	415.113  Statutory construction; treatment by spiritual
922	means.--This part may not Nothing in ss. 415.101-415.112 shall
923	be construed to mean a person is abused, neglected, or in need
924	of emergency or protective services for the sole reason that the
925	person relies upon and is, therefore, being furnished treatment
926	by spiritual means through prayer alone in accordance with the
927	tenets and practices of a well-recognized church or religious
928	denomination or organization; nor may this part shall anything
929	in such sections be construed to authorize, permit, or require
930	any medical care or treatment in contravention of the stated or
931	implied objection of such person. Such construction does not:
932	(1)  Eliminate the requirement that such a case be reported
933	to the department;
934	(2)  Prevent the department from investigating such a case;
935	or
936	(3)  Preclude a court from ordering, when the health of the
937	individual requires it, the provision of medical services by a
938	licensed physician or treatment by a duly accredited
939	practitioner who relies solely on spiritual means for healing in
940	accordance with the tenets and practices of a well-recognized
941	church or religious denomination or organization.
942	Section 16.  This act shall take effect July 1, 2009.

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