Florida Senate - 2015 COMMITTEE AMENDMENT
Bill No. CS for SB 318
Ì320628.Î320628
LEGISLATIVE ACTION
Senate . House
Comm: WD .
04/02/2015 .
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Appropriations Subcommittee on Criminal and Civil Justice (Soto)
recommended the following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Subsection (3) of section 709.2109, Florida
6 Statutes, is amended to read:
7 709.2109 Termination or suspension of power of attorney or
8 agent’s authority.—
9 (3) If any person initiates judicial proceedings to
10 determine the principal’s incapacity or for the appointment of a
11 guardian advocate, the authority granted under the power of
12 attorney is suspended until the petition is dismissed or
13 withdrawn or the court enters an order authorizing the agent to
14 exercise one or more powers granted under the power of attorney.
15 However, if the agent named in the power of attorney is the
16 principal’s parent, spouse, child, or grandchild, the authority
17 under the power of attorney is not suspended unless a verified
18 motion in accordance with s. 744.3203 is also filed.
19 (a) If an emergency arises after initiation of proceedings
20 to determine incapacity and before adjudication regarding the
21 principal’s capacity, the agent may petition the court in which
22 the proceeding is pending for authorization to exercise a power
23 granted under the power of attorney. The petition must set forth
24 the nature of the emergency, the property or matter involved,
25 and the power to be exercised by the agent.
26 (b) Notwithstanding the provisions of this section, unless
27 otherwise ordered by the court, a proceeding to determine
28 incapacity does not affect the authority of the agent to make
29 health care decisions for the principal, including, but not
30 limited to, those provided in chapter 765. If the principal has
31 executed a health care advance directive designating a health
32 care surrogate, the terms of the directive control if the
33 directive and the power of attorney are in conflict unless the
34 power of attorney is later executed and expressly states
35 otherwise.
36 Section 2. Subsection (5) is added to section 744.107,
37 Florida Statutes, to read:
38 744.107 Court monitors.—
39 (5) The court may appoint the office of criminal conflict
40 and civil regional counsel as monitor if the ward is indigent.
41 Section 3. Subsection (6) is added to section 744.1075,
42 Florida Statutes, to read:
43 744.1075 Emergency court monitor.—
44 (6) The court may appoint the office of criminal conflict
45 and civil regional counsel as monitor if the ward is indigent.
46 Section 4. Subsections (5) and (8) of section 744.108,
47 Florida Statutes, are amended, and subsection (9) is added to
48 that section, to read:
49 744.108 Guardian Guardian’s and attorney attorney’s fees
50 and expenses.—
51 (5) All petitions for guardian guardian’s and attorney
52 attorney’s fees and expenses must be accompanied by an itemized
53 description of the services performed for the fees and expenses
54 sought to be recovered.
55 (8) When court proceedings are instituted to review or
56 determine a guardian’s or an attorney’s fees under subsection
57 (2), such proceedings are part of the guardianship
58 administration process and the costs, including costs and
59 attorney fees for the guardian’s attorney, an attorney appointed
60 under s. 744.331(2), or an attorney who has rendered services to
61 the ward, shall be determined by the court and paid from the
62 assets of the guardianship estate unless the court finds the
63 requested compensation under subsection (2) to be substantially
64 unreasonable.
65 (9) The court may determine that a request for compensation
66 by the guardian, the guardian’s attorney, a person employed by
67 the guardian, an attorney appointed under s. 744.331(2), or an
68 attorney who has rendered services to the ward, is reasonable
69 without receiving expert testimony. A person or party may offer
70 expert testimony for or against a request for compensation after
71 giving notice to interested persons. Reasonable expert witness
72 fees shall be awarded by the court and paid from the assets of
73 the guardianship estate using the standards in subsection (8).
74 Section 5. Section 744.3025, Florida Statutes, is amended
75 to read:
76 744.3025 Claims of minors.—
77 (1)(a) The court may appoint a guardian ad litem to
78 represent the minor’s interest before approving a settlement of
79 the minor’s portion of the claim in a any case in which a minor
80 has a claim for personal injury, property damage, wrongful
81 death, or other cause of action in which the gross settlement of
82 the claim exceeds $15,000 if the court believes a guardian ad
83 litem is necessary to protect the minor’s interest.
84 (b) Except as provided in paragraph (e), the court shall
85 appoint a guardian ad litem to represent the minor’s interest
86 before approving a settlement of the minor’s claim in a any case
87 in which the gross settlement involving a minor equals or
88 exceeds $50,000.
89 (c) The appointment of the guardian ad litem must be
90 without the necessity of bond or notice.
91 (d) The duty of the guardian ad litem is to protect the
92 minor’s interests as described in the Florida Probate Rules.
93 (e) A court need not appoint a guardian ad litem for the
94 minor if a guardian of the minor has previously been appointed
95 and that guardian has no potential adverse interest to the
96 minor. A court may appoint a guardian ad litem if the court
97 believes a guardian ad litem is necessary to protect the
98 interests of the minor.
99 (2) Unless waived, the court shall award reasonable fees
100 and costs to the guardian ad litem to be paid out of the gross
101 proceeds of the settlement.
102 (3) A settlement of a claim pursuant to this section is
103 subject to the confidentiality provisions of this chapter.
104 Section 6. Subsections (2) through (8) of section 744.3031,
105 Florida Statutes, are renumbered as subsections (3) through (9),
106 respectively, and a new subsection (2) is added to that section,
107 and present subsection (8) of that section is amended, to read:
108 744.3031 Emergency temporary guardianship.—
109 (2) Notice of filing of the petition for appointment of an
110 emergency temporary guardian and a hearing on the petition must
111 be served on the alleged incapacitated person and on the alleged
112 incapacitated person’s attorney at least 24 hours before the
113 hearing on the petition is commenced, unless the petitioner
114 demonstrates that substantial harm to the alleged incapacitated
115 person would occur if the 24-hour notice is given.
116 (9)(8)(a) An emergency temporary guardian shall file a
117 final report no later than 30 days after the expiration of the
118 emergency temporary guardianship.
119 (b) A court may not authorize any final payment of the
120 emergency temporary guardian fees or the fees of his or her
121 attorney until the final report is filed.
122 (c)1. If the final report is not timely filed, the court
123 shall issue to the emergency temporary guardian an order to show
124 cause which requires the emergency temporary guardian to appear
125 before the court and explain why the court should not take
126 further action. The order must specify the time and place of the
127 hearing within a reasonable time after service of the order to
128 allow for the preparation of a defense.
129 2. At any time before the hearing on the order to show
130 cause, the court may suspend the emergency temporary guardian if
131 he or she has become a successor guardian, appoint a guardian ad
132 litem, or issue any other appropriate order to protect the
133 physical or mental health, safety, or property of the ward. A
134 copy of any such order shall be transmitted by the court or
135 under its direction to all parties at the time of entry of the
136 order or injunction.
137 3. After the hearing on the order to show cause, the court
138 may impose sanctions on the emergency temporary guardian or take
139 any other action authorized by law, including, but not limited
140 to, entering a judgment of contempt; ordering an accounting;
141 freezing assets; referring the case to local law enforcement
142 agencies or the state attorney; filing an abuse, neglect, or
143 exploitation complaint with the Department of Children and
144 Families; and initiating proceedings to remove the emergency
145 temporary guardian if he or she has become a successor guardian.
146 (d)(b) If an emergency temporary guardian is a guardian for
147 the property, the final report must consist of a verified
148 inventory of the property, as provided in s. 744.365, as of the
149 date the letters of emergency temporary guardianship were
150 issued, a final accounting that gives a full and correct account
151 of the receipts and disbursements of all the property of the
152 ward over which the guardian had control, and a statement of the
153 property of the ward on hand at the end of the emergency
154 temporary guardianship. If the emergency temporary guardian
155 becomes the successor guardian of the property, the final report
156 must satisfy the requirements of the initial guardianship report
157 for the guardian of the property as provided in s. 744.362.
158 (e)(c) If the emergency temporary guardian is a guardian of
159 the person, the final report must summarize the activities of
160 the temporary guardian with regard to residential placement,
161 medical condition, mental health and rehabilitative services,
162 and the social condition of the ward to the extent of the
163 authority granted to the temporary guardian in the letters of
164 guardianship. If the emergency temporary guardian becomes the
165 successor guardian of the person, the report must satisfy the
166 requirements of the initial report for a guardian of the person
167 as stated in s. 744.362.
168 (f)(d) A copy of the final report of the emergency
169 temporary guardianship shall be served on the successor guardian
170 and the ward.
171 Section 7. Subsection (7) is added to section 744.309,
172 Florida Statutes, to read:
173 744.309 Who may be appointed guardian of a resident ward.—
174 (7) FOR-PROFIT CORPORATE GUARDIAN.—A for-profit corporate
175 guardian existing under the laws of this state is qualified to
176 act as guardian of a ward if the entity is qualified to do
177 business in the state, is wholly owned by the person who is the
178 circuit’s public guardian in the circuit where the corporate
179 guardian is appointed, and has met the registration requirements
180 of s. 744.1083, provided that the for-profit corporate guardian:
181 (a) Posts and maintains a blanket fiduciary bond of at
182 least $250,000 with the clerk of the circuit court in the county
183 in which the corporate guardian has its principal place of
184 business. The corporate guardian shall provide proof of the
185 fiduciary bond to the clerks of each additional circuit court in
186 which he or she is serving as a guardian. The bond must cover
187 all wards for whom the corporation has been appointed as a
188 guardian at any given time. The liability of the provider of the
189 bond is limited to the face value of the bond, regardless of the
190 number of wards for whom the corporation is acting as a
191 guardian. The terms of the bond must cover the acts or omissions
192 of each agent or employee of the corporation who has direct
193 contact with the ward or access to the assets of the
194 guardianship. The bond must be payable to the Governor and his
195 or her successors in office and be conditioned on the faithful
196 performance of all duties of a guardian under this chapter. The
197 bond is in lieu of and not in addition to the bond required
198 under s. 744.1085 but is in addition to any bonds required under
199 s. 744.351. The expenses incurred to satisfy the bonding
200 requirements of this section may not be paid with the assets of
201 any ward; or
202 (b) Maintains a liability insurance policy that covers any
203 losses sustained by the guardianship caused by errors,
204 omissions, or any intentional misconduct committed by the
205 corporation’s officers or agents. The policy must cover all
206 wards for whom the corporation is acting as a guardian agent for
207 losses up to $250,000. The terms of the policy must cover acts
208 or omissions of each agent or employee of the corporation who
209 has direct contact with the principal or access to the assets of
210 the guardianship. The corporate guardian shall provide proof of
211 the fiduciary bond to the clerk of each additional circuit court
212 in which he or she is serving as a guardian. A for-profit
213 corporation appointed as guardian before July 1, 2015, is also
214 qualified to serve as a guardian in the particular guardianships
215 in which the corporation has already been appointed as guardian.
216 Section 8. Section 744.3115, Florida Statutes, is amended
217 to read:
218 744.3115 Advance directives for health care.—In each
219 proceeding in which a guardian is appointed under this chapter,
220 the court shall determine whether the ward, prior to incapacity,
221 has executed any valid advance directive under chapter 765. If
222 any advance directive exists, the court shall specify in its
223 order and letters of guardianship what authority, if any, the
224 guardian shall exercise over the ward with regard to health care
225 decisions and what authority, if any, the surrogate shall
226 continue to exercise over the ward with regard to health care
227 decisions surrogate. Pursuant to the grounds listed in s.
228 765.105, the court, upon its own motion, may, with notice to the
229 surrogate and any other appropriate parties, modify or revoke
230 the authority of the surrogate to make health care decisions for
231 the ward. Any order revoking or modifying the authority of the
232 surrogate must be supported by specific written findings of
233 fact. If the court order provides that the guardian is
234 responsible for making health care decisions for the ward, the
235 guardian shall assume the responsibilities of the surrogate
236 which are provided in s. 765.205. For purposes of this section,
237 the term “health care decision” has the same meaning as in s.
238 765.101.
239 Section 9. Section 744.312, Florida Statutes, is reordered
240 and amended to read:
241 744.312 Considerations in appointment of guardian.—
242 (1)(4) If the person designated is qualified to serve
243 pursuant to s. 744.309, the court shall appoint any standby
244 guardian or preneed guardian, unless the court determines that
245 appointing such person is contrary to the best interests of the
246 ward.
247 (2)(1) If a guardian cannot be appointed under subsection
248 (1) Subject to the provisions of subsection (4), the court may
249 appoint any person who is fit and proper and qualified to act as
250 guardian, whether related to the ward or not.
251 (2) The court shall give preference to the appointment of a
252 person who:
253 (a) Is related by blood or marriage to the ward;
254 (b) Has educational, professional, or business experience
255 relevant to the nature of the services sought to be provided;
256 (c) Has the capacity to manage the financial resources
257 involved; or
258 (d) Has the ability to meet the requirements of the law and
259 the unique needs of the individual case.
260 (3) The court shall also:
261 (a) Consider the wishes expressed by an incapacitated
262 person as to who shall be appointed guardian.;
263 (b) Consider the preference of a minor who is age 14 or
264 over as to who should be appointed guardian.;
265 (c) Consider any person designated as guardian in any will
266 in which the ward is a beneficiary.
267 (d) Consider the wishes of the ward’s next of kin, when the
268 ward cannot express a preference.
269 (4) Except when a standby guardian or a preneed guardian is
270 appointed by the court:
271 (a) In each case when a court appoints a professional
272 guardian and does not use a rotation system for such
273 appointment, the court must make specific findings of fact
274 stating why the person was selected as guardian in the
275 particular matter involved. The findings must reference each of
276 the factors listed in subsections (2) and (3).
277 (b) An emergency temporary guardian who is a professional
278 guardian may not be appointed as the permanent guardian of a
279 ward unless one of the next of kin of the alleged incapacitated
280 person or the ward requests that the professional guardian be
281 appointed as permanent guardian. The court may waive the
282 limitations of this paragraph if the special requirements of the
283 guardianship demand that the court appoint a guardian because he
284 or she has special talent or specific prior experience. The
285 court must make specific findings of fact that justify a finding
286 that there are special requirements requiring an appointment
287 without reference to this limitation.
288 (5) The court may not give preference to the appointment of
289 a person under subsection (2) based solely on the fact that such
290 person was appointed by the court to serve as an emergency
291 temporary guardian.
292 Section 10. Section 744.3203, Florida Statutes, is created
293 to read:
294 744.3203 Suspension of power of attorney before incapacity
295 determination.—
296 (1) At any time during proceedings to determine incapacity
297 but before the entry of an order determining incapacity, the
298 authority granted under an alleged incapacitated person’s power
299 of attorney to a parent, spouse, child, or grandchild is
300 suspended when the petitioner files a motion stating that a
301 specific power of attorney should be suspended for any of the
302 following grounds:
303 (a) The agent’s decisions are not in accord with the
304 alleged incapacitated person’s known desires.
305 (b) The power of attorney is invalid.
306 (c) The agent has failed to discharge his or her duties or
307 incapacity or illness renders the agent incapable of discharging
308 duties.
309 (d) The agent has abused powers.
310 (e) There is a danger that the property of the alleged
311 incapacitated person may be wasted, misappropriated, or lost
312 unless the authority under the power of attorney is suspended.
313
314 Grounds for suspending a power of attorney do not include the
315 existence of a dispute between the agent and the petitioner
316 which is more appropriate for resolution in some other forum or
317 a legal proceeding other than a guardianship proceeding.
318 (2) The motion must:
319 (a) Identify one or more of the grounds in subsection (1);
320 (b) Include specific statements of fact showing that
321 grounds exist to justify the relief sought; and
322 (c) Include the following statement: “Under penalties of
323 perjury, I declare that I have read the foregoing motion and
324 that the facts stated in it are true to the best of my knowledge
325 and belief,” followed by the signature of the petitioner.
326 (3) Upon the filing of a response to the motion by the
327 agent under the power of attorney, the court shall schedule the
328 motion for an expedited hearing. Unless an emergency arises and
329 the agent’s response sets forth the nature of the emergency, the
330 property or matter involved, and the power to be exercised by
331 the agent, notice must be given to all interested persons, the
332 alleged incapacitated person, and the alleged incapacitated
333 person’s attorney. The court order following the hearing must
334 set forth what powers the agent is permitted to exercise, if
335 any, pending the outcome of the petition to determine
336 incapacity.
337 (4) In addition to any other remedy authorized by law, a
338 court may award reasonable attorney fees and costs to an agent
339 who successfully challenges the suspension of the power of
340 attorney if the petitioner’s motion was made in bad faith.
341 (5) The suspension of authority granted to persons other
342 than a parent, spouse, child, or grandchild shall be as provided
343 in s. 709.2109.
344 Section 11. Subsection (6) and paragraph (c) of subsection
345 (7) of section 744.331, Florida Statutes, are amended to read:
346 744.331 Procedures to determine incapacity.—
347 (6) ORDER DETERMINING INCAPACITY.—If, after making findings
348 of fact on the basis of clear and convincing evidence, the court
349 finds that a person is incapacitated with respect to the
350 exercise of a particular right, or all rights, the court shall
351 enter a written order determining such incapacity. In
352 determining incapacity, the court shall consider the person’s
353 unique needs and abilities and may only remove those rights that
354 the court finds the person does not have the capacity to
355 exercise. A person is determined to be incapacitated only with
356 respect to those rights specified in the order.
357 (a) The court shall make the following findings:
358 1. The exact nature and scope of the person’s incapacities;
359 2. The exact areas in which the person lacks capacity to
360 make informed decisions about care and treatment services or to
361 meet the essential requirements for her or his physical or
362 mental health or safety;
363 3. The specific legal disabilities to which the person is
364 subject; and
365 4. The specific rights that the person is incapable of
366 exercising.
367 (b) When an order determines that a person is incapable of
368 exercising delegable rights, the court must consider and find
369 whether there is an alternative to guardianship that will
370 sufficiently address the problems of the incapacitated person. A
371 guardian must be appointed to exercise the incapacitated
372 person’s delegable rights unless the court finds there is an
373 alternative. A guardian may not be appointed if the court finds
374 there is an alternative to guardianship which will sufficiently
375 address the problems of the incapacitated person. If the court
376 finds there is not an alternative to guardianship that
377 sufficiently addresses the problems of the incapacitated person,
378 a guardian must be appointed to exercise the incapacitated
379 person’s delegable rights.
380 (c) In determining that a person is totally incapacitated,
381 the order must contain findings of fact demonstrating that the
382 individual is totally without capacity to care for herself or
383 himself or her or his property.
384 (d) An order adjudicating a person to be incapacitated
385 constitutes proof of such incapacity until further order of the
386 court.
387 (e) After the order determining that the person is
388 incapacitated has been filed with the clerk, it must be served
389 on the incapacitated person. The person is deemed incapacitated
390 only to the extent of the findings of the court. The filing of
391 the order is notice of the incapacity. An incapacitated person
392 retains all rights not specifically removed by the court.
393 (f) Upon the filing of a verified statement by an
394 interested person stating:
395 1. That he or she has a good faith belief that the alleged
396 incapacitated person’s trust, trust amendment, or durable power
397 of attorney is invalid; and
398 2. A reasonable factual basis for that belief,
399
400 the trust, trust amendment, or durable power of attorney shall
401 not be deemed to be an alternative to the appointment of a
402 guardian. The appointment of a guardian does not limit the
403 court’s power to determine that certain authority granted by a
404 durable power of attorney is to remain exercisable by the agent
405 attorney in fact.
406 (7) FEES.—
407 (c) If the petition is dismissed or denied:,
408 1. The fees of the examining committee shall be paid upon
409 court order as expert witness fees under s. 29.004(6).
410 2. Costs and attorney attorney’s fees of the proceeding may
411 be assessed against the petitioner if the court finds the
412 petition to have been filed in bad faith. The petitioner shall
413 also reimburse the state courts system for any amounts paid
414 under subparagraph 1. upon such a finding.
415 Section 12. Subsection (4) of section 744.344, Florida
416 Statutes, is amended to read:
417 744.344 Order of appointment.—
418 (4) If a petition for the appointment of a guardian has not
419 been filed or ruled upon at the time of the hearing on the
420 petition to determine capacity, the court may appoint an
421 emergency temporary guardian in the manner and for the purposes
422 specified in s. 744.3031.
423 Section 13. Section 744.345, Florida Statutes, is amended
424 to read:
425 744.345 Letters of guardianship.—Letters of guardianship
426 shall be issued to the guardian and shall specify whether the
427 guardianship pertains to the person, or the property, or both,
428 of the ward. The letters must state whether the guardianship is
429 plenary or limited, and, if limited, the letters must state the
430 powers and duties of the guardian. If the guardianship is
431 limited, The letters shall state whether or not and to what
432 extent the guardian is authorized to act on behalf of the ward
433 with regard to any advance directive previously executed by the
434 ward.
435 Section 14. Section 744.359, Florida Statutes, is created
436 to read:
437 744.359 Abuse, neglect, or exploitation by a guardian.—
438 (1) A guardian may not abuse, neglect, or exploit a ward.
439 (2) A guardian has committed exploitation when the
440 guardian:
441 (a) Commits fraud in obtaining appointment as a guardian;
442 (b) Abuses his or her powers; or
443 (c) Wastes, embezzles, or intentionally mismanages the
444 assets of the ward.
445 (3) A person who believes that a guardian is abusing,
446 neglecting, or exploiting a ward shall report the incident to
447 the central abuse hotline of the Department of Children and
448 Families.
449 (4) This section shall be interpreted in conformity with s.
450 825.103.
451 Section 15. Section 744.361, Florida Statutes, is amended
452 to read:
453 744.361 Powers and duties of guardian.—
454 (1) The guardian of an incapacitated person is a fiduciary
455 and may exercise only those rights that have been removed from
456 the ward and delegated to the guardian. The guardian of a minor
457 shall exercise the powers of a plenary guardian.
458 (2) The guardian shall act within the scope of the
459 authority granted by the court and as provided by law.
460 (3) The guardian shall act in good faith.
461 (4) A guardian may not act in a manner that is contrary to
462 the ward’s best interests under the circumstances.
463 (5) A guardian who has special skills or expertise, or is
464 appointed in reliance upon the guardian’s representation that
465 the guardian has special skills or expertise, shall use those
466 special skills or expertise when acting on behalf of the ward.
467 (6)(2) The guardian shall file an initial guardianship
468 report in accordance with s. 744.362.
469 (7)(3) The guardian shall file a guardianship report
470 annually in accordance with s. 744.367.
471 (8)(4) The guardian of the person shall implement the
472 guardianship plan.
473 (9)(5) When two or more guardians have been appointed, the
474 guardians shall consult with each other.
475 (10)(6) A guardian who is given authority over any property
476 of the ward shall:
477 (a) Protect and preserve the property and invest it
478 prudently as provided in chapter 518, apply it as provided in s.
479 744.397, and keep clear, distinct, and accurate records of the
480 administration of the ward’s property account for it faithfully.
481 (b) Perform all other duties required of him or her by law.
482 (c) At the termination of the guardianship, deliver the
483 property of the ward to the person lawfully entitled to it.
484 (11)(7) The guardian shall observe the standards in dealing
485 with the guardianship property that would be observed by a
486 prudent person dealing with the property of another, and, if the
487 guardian has special skills or is named guardian on the basis of
488 representations of special skills or expertise, he or she is
489 under a duty to use those skills.
490 (12)(8) The guardian, if authorized by the court, shall
491 take possession of all of the ward’s property and of the rents,
492 income, issues, and profits from it, whether accruing before or
493 after the guardian’s appointment, and of the proceeds arising
494 from the sale, lease, or mortgage of the property or of any
495 part. All of the property and the rents, income, issues, and
496 profits from it are assets in the hands of the guardian for the
497 payment of debts, taxes, claims, charges, and expenses of the
498 guardianship and for the care, support, maintenance, and
499 education of the ward or the ward’s dependents, as provided for
500 under the terms of the guardianship plan or by law.
501 (13) Recognizing that every individual has unique needs and
502 abilities, a guardian who is given authority over a ward’s
503 person shall, as appropriate under the circumstances:
504 (a) Consider the expressed desires of the ward as known by
505 the guardian when making decisions that affect the ward.
506 (b) Allow the ward to maintain contact with family and
507 friends unless the guardian believes that such contact may cause
508 harm to the ward.
509 (c) Not restrict the physical liberty of the ward more than
510 reasonably necessary to protect the ward or another person from
511 serious physical injury, illness, or disease.
512 (d) Assist the ward in developing or regaining his or her
513 own capacity, if medically possible.
514 (e) Notify the court if the guardian believes that the ward
515 has regained capacity and that one or more of the rights that
516 have been removed should be restored to the ward.
517 (f) To the extent applicable, make provision for the
518 medical, mental, rehabilitative, or personal care services for
519 the welfare of the ward.
520 (g) To the extent applicable, acquire a clear understanding
521 of the risks and benefits of a recommended course of health care
522 treatment before making a health care decision.
523 (h) Evaluate the ward’s medical and health care options,
524 financial resources, and desires when making residential
525 decisions that are best suited for the current needs of the
526 ward.
527 (i) Advocate on behalf of the ward in institutional and
528 other residential settings and regarding access to home and
529 community-based services.
530 (j) Acquire an understanding of the available residential
531 options and give priority to home and other community-based
532 services and settings when not inconsistent with the person’s
533 goals, needs, and preferences.
534 (14)(9) A professional guardian must ensure that each of
535 the guardian’s wards is personally visited by the guardian or
536 one of the guardian’s professional staff at least once each
537 calendar quarter. During the personal visit, the guardian or the
538 guardian’s professional staff person shall assess:
539 (a) The ward’s physical appearance and condition.
540 (b) The appropriateness of the ward’s current living
541 situation.
542 (c) The need for any additional services and the necessity
543 for continuation of existing services, taking into consideration
544 all aspects of social, psychological, educational, direct
545 service, health, and personal care needs.
546 (d) The nature and extent of visitation and communication
547 with the ward’s family and friends.
548
549 This subsection does not apply to a professional guardian who
550 has been appointed only as guardian of the property.
551 Section 16. Subsection (1) of section 744.367, Florida
552 Statutes, is amended to read:
553 744.367 Duty to file annual guardianship report.—
554 (1) Unless the court requires filing on a calendar-year
555 basis, each guardian of the person shall file with the court an
556 annual guardianship plan at least 60 days, but no more than
557 within 90 days, before after the last day of the anniversary
558 month that the letters of guardianship were signed, and the plan
559 must cover the coming fiscal year, ending on the last day in
560 such anniversary month. If the court requires calendar-year
561 filing, the guardianship plan for the forthcoming calendar year
562 must be filed on or after September 1 but no later than December
563 1 of the current year before April 1 of each year.
564 Section 17. Subsection (8) of section 744.369, Florida
565 Statutes, is amended to read:
566 744.369 Judicial review of guardianship reports.—
567 (8) The approved report constitutes the authority for the
568 guardian to act in the forthcoming year. The powers of the
569 guardian are limited by the terms of the report. The annual
570 report may not grant additional authority to the guardian
571 without a hearing, as provided for in s. 744.331, to determine
572 that the ward is incapacitated to act in that matter. Unless the
573 court orders otherwise, the guardian may continue to act under
574 authority of the last-approved report until the forthcoming
575 year’s report is approved.
576 Section 18. Subsection (1) of section 744.3715, Florida
577 Statutes, is amended to read:
578 744.3715 Petition for interim judicial review.—
579 (1) At any time, any interested person, including the ward,
580 may petition the court for review alleging that the guardian is
581 not complying with the guardianship plan, or is exceeding his or
582 her authority under the guardianship plan, is acting in a manner
583 contrary to s. 744.361, is denying visitation between the ward
584 and his or her relatives in violation of s. 744.361(13), or and
585 the guardian is not acting in the best interest of the ward. The
586 petition for review must state the nature of the objection to
587 the guardian’s action or proposed action. Upon the filing of any
588 such petition, the court shall review the petition and act upon
589 it expeditiously.
590 Section 19. Paragraphs (a) and (b) of subsection (3) of
591 section 744.464, Florida Statutes, are amended, and subsection
592 (4) is added to that section, to read:
593 744.464 Restoration to capacity.—
594 (3) ORDER OF RESTORATION.—
595 (a) If no objections are filed, and the court is satisfied
596 that with the medical examination establishes by a preponderance
597 of the evidence that restoration of all or some of the ward’s
598 rights is appropriate, the court shall enter an order of
599 restoration of capacity, restoring all or some of the rights
600 which were removed from the ward in accordance with those
601 findings. The order must be issued within 30 days after the
602 medical report is filed.
603 (b) At the conclusion of a hearing, conducted pursuant to
604 s. 744.1095, the court shall make specific findings of fact and,
605 based on a preponderance of the evidence, enter an order either
606 denying the suggestion of capacity or restoring all or some of
607 the rights which were removed from the ward. The ward has the
608 burden of proving by a preponderance of the evidence that the
609 restoration of capacity is warranted.
610 (4) TIMELINESS OF HEARING.—The court shall give priority to
611 any suggestion of capacity and shall advance the cause on the
612 calendar.
613 Section 20. Sections 709.2109 and 744.3203, Florida
614 Statutes, as created by this act, apply to all proceedings filed
615 on or after July 1, 2015. The amendments made by this act to ss.
616 744.107, 744.1075, 744.108, 744.3025, 744.3031, 744.309,
617 744.3115, 744.312, 744.331, 744.344, 744.345, 744.359, 744.361,
618 744.367, 744.369, 744.3715, and 744.464, Florida Statutes, apply
619 to all proceedings pending on July 1, 2015.
620 Section 21. This act shall take effect July 1, 2015.
621
622 ================= T I T L E A M E N D M E N T ================
623 And the title is amended as follows:
624 Delete everything before the enacting clause
625 and insert:
626 A bill to be entitled
627 An act relating to guardianship proceedings; amending
628 s. 709.2109, F.S.; requiring the filing of a motion
629 before termination or suspension of a power of
630 attorney in proceedings to determine a principal’s
631 incapacity or for appointment of a guardian advocate
632 under certain circumstances; amending ss. 744.107 and
633 744.1075, F.S.; authorizing a court to appoint the
634 office of criminal conflict and civil regional counsel
635 as a court monitor in guardianship proceedings;
636 amending s. 744.108, F.S.; providing that fees and
637 costs incurred by an attorney who has rendered
638 services to a ward in compensation proceedings are
639 payable from guardianship assets; providing that
640 expert testimony is not required in proceedings to
641 determine compensation for an attorney or guardian;
642 requiring a person offering expert testimony to
643 provide notice to interested persons; providing that
644 expert witness fees are recoverable by the prevailing
645 interested person; amending s. 744.3025, F.S.;
646 providing that a court may appoint a guardian ad litem
647 to represent a minor if necessary to protect the
648 minor’s interest in a settlement; providing that a
649 settlement of a minor’s claim is subject to certain
650 confidentiality provisions; amending s. 744.3031,
651 F.S.; requiring notification of an alleged
652 incapacitated person and such person’s attorney of a
653 petition for appointment of an emergency temporary
654 guardian before a hearing on the petition commences;
655 prohibiting the final payment of the emergency
656 temporary guardian fees and his or her attorney fees
657 until the final report is filed; requiring a court to
658 issue an order to show cause to an emergency temporary
659 guardian who fails to timely file his or her final
660 report; authorizing a court to take certain actions to
661 protect the ward before a hearing on an order to show
662 cause; requiring a copy of such order to be
663 transmitted to certain parties; authorizing the court
664 to impose sanctions on the emergency temporary
665 guardian or take certain other actions after a show
666 cause hearing; amending s. 744.309, F.S.; providing
667 that certain for-profit corporations may act as
668 guardian of a person; providing conditions; requiring
669 the posting and maintenance of a fiduciary bond;
670 limiting liability; requiring the corporation to
671 maintain certain insurance coverage; providing for
672 certain grandfathered guardianships; amending s.
673 744.3115, F.S.; directing the court to specify
674 authority for health care decisions with respect to a
675 ward’s advance directive; amending s. 744.312, F.S.;
676 prohibiting a court from giving preference to the
677 appointment of certain persons as guardians; providing
678 requirements for the appointment of professional
679 guardians; amending s. 744.3203, F.S.; providing
680 grounds for filing a motion for suspension of a power
681 of attorney before determination of incapacity;
682 providing criteria for such motion; requiring a
683 hearing under certain conditions; providing for the
684 award of attorney fees and costs; amending s. 744.331,
685 F.S.; directing the court to consider certain factors
686 when determining incapacity; requiring that the
687 examining committee be paid from state funds as court
688 appointed expert witnesses if a petition for
689 incapacity is dismissed; requiring that a petitioner
690 reimburse the state for such expert witness fees if
691 the court finds the petition to have been filed in bad
692 faith; amending s. 744.344, F.S.; providing conditions
693 under which the court is authorized to appoint an
694 emergency temporary guardian; amending s. 744.345,
695 F.S.; revising provisions relating to letters of
696 guardianship; creating s. 744.359, F.S.; prohibiting
697 abuse, neglect, or exploitation of a ward by a
698 guardian; requiring reporting thereof to the
699 Department of Children and Families central abuse
700 hotline; providing for interpretation; amending s.
701 744.361, F.S.; providing additional powers and duties
702 of a guardian; amending s. 744.367, F.S.; revising the
703 period during which a guardian must file an annual
704 guardianship plan with the court; amending s. 744.369,
705 F.S.; providing for the continuance of a guardian’s
706 authority to act under an expired annual report under
707 certain circumstances; amending s. 744.3715, F.S.;
708 providing that an interested party may petition the
709 court regarding a guardian’s failure to comply with
710 the duties of a guardian; amending s. 744.464, F.S.;
711 establishing the burden of proof for determining
712 restoration of capacity of a ward in pending
713 guardianship cases; requiring a court to advance such
714 cases on the calendar; providing applicability;
715 providing an effective date.