Florida Senate - 2015                       CS for CS for SB 318
       
       
        
       By the Committees on Appropriations; and Judiciary; and Senators
       Diaz de la Portilla and Detert
       
       
       
       
       576-04508-15                                           2015318c2
    1                        A bill to be entitled                      
    2         An act relating to guardianship proceedings; amending
    3         s. 709.2105, F.S.; revising the qualifications of an
    4         agent in the execution of power of attorney to include
    5         certain not-for-profit corporations; providing
    6         criteria for such corporations; amending s. 709.2109,
    7         F.S.; requiring the filing of a motion before
    8         suspension of a power of attorney in proceedings to
    9         determine a principal’s incapacity or for appointment
   10         of a guardian advocate under certain circumstances;
   11         amending ss. 744.107 and 744.1075, F.S.; authorizing a
   12         court to appoint the office of criminal conflict and
   13         civil regional counsel as a court monitor in
   14         guardianship proceedings; amending s. 744.108, F.S.;
   15         providing that fees and costs incurred by an attorney
   16         appointed by a court or an attorney who has rendered
   17         services to a ward in compensation proceedings are
   18         payable from guardianship assets; providing that
   19         expert testimony is not required in proceedings to
   20         determine compensation for an attorney, a guardian, or
   21         a person employed by a guardian; requiring a person
   22         offering expert testimony to provide notice to
   23         interested persons; providing that reasonable expert
   24         witness fees are recoverable; amending s. 744.3025,
   25         F.S.; providing that a court may appoint a guardian ad
   26         litem to represent a minor if necessary to protect the
   27         minor’s interest in a settlement; providing that a
   28         settlement of a minor’s claim is subject to certain
   29         confidentiality provisions; amending s. 744.3031,
   30         F.S.; requiring notice to an alleged incapacitated
   31         person and such person’s attorney of a petition for
   32         appointment of an emergency temporary guardian before
   33         a hearing on the petition commences; providing an
   34         exception; prohibiting the final payment of the
   35         emergency temporary guardian fees and his or her
   36         attorney fees until the final report is filed;
   37         amending s. 744.309, F.S.; providing that a for-profit
   38         corporation may act as guardian of a person under
   39         certain circumstances; providing conditions; requiring
   40         the posting and maintenance of a fiduciary bond;
   41         limiting liability; requiring the corporation to
   42         maintain certain insurance coverage; providing for
   43         certain grandfathered guardianships; amending s.
   44         744.3115, F.S.; directing the court to specify
   45         authority for health care decisions with respect to a
   46         ward’s advance directive; amending s. 744.312, F.S.;
   47         requiring a court to consider the wishes of the ward’s
   48         relatives when appointing a guardian; prohibiting a
   49         court from giving preference to the appointment of
   50         certain persons as guardians; providing requirements
   51         for the appointment of professional guardians;
   52         amending s. 744.3203, F.S.; providing grounds for
   53         filing a motion for suspension of a power of attorney
   54         before determination of incapacity; providing criteria
   55         for such motion; requiring a hearing under certain
   56         conditions; providing for the award of attorney fees
   57         and costs; amending s. 744.331, F.S.; directing the
   58         court to consider certain factors when determining
   59         incapacity; requiring that the examining committee be
   60         paid from state funds as court-appointed expert
   61         witnesses if a petition for incapacity is dismissed or
   62         denied; requiring that a petitioner reimburse the
   63         state for such expert witness fees if the court finds
   64         the petition to have been filed in bad faith; amending
   65         s. 744.344, F.S.; revising conditions under which the
   66         court is authorized to appoint an emergency temporary
   67         guardian; amending s. 744.345, F.S.; revising
   68         provisions relating to letters of guardianship;
   69         creating s. 744.359, F.S.; prohibiting abuse, neglect,
   70         or exploitation of a ward by a guardian; requiring
   71         reporting thereof to the Department of Children and
   72         Families central abuse hotline; providing for
   73         interpretation; amending s. 744.361, F.S.; providing
   74         additional powers and duties of a guardian; amending
   75         s. 744.367, F.S.; revising the period during which a
   76         guardian must file an annual guardianship plan with
   77         the court; amending s. 744.369, F.S.; providing for
   78         the continuance of a guardian’s authority to act under
   79         an expired annual report under certain circumstances;
   80         amending s. 744.3715, F.S.; providing that an
   81         interested party may petition the court regarding a
   82         guardian’s failure to comply with the duties of a
   83         guardian; amending s. 744.464, F.S.; establishing the
   84         burden of proof for determining restoration of
   85         capacity of a ward in pending guardianship cases;
   86         requiring a court to advance such cases on the
   87         calendar; providing applicability; providing an
   88         effective date.
   89          
   90  Be It Enacted by the Legislature of the State of Florida:
   91  
   92         Section 1. Section 709.2105, Florida Statutes, is amended
   93  to read:
   94         709.2105 Qualifications of agent; execution of power of
   95  attorney.—
   96         (1) The agent must be one of the following:
   97         (a) A natural person who is 18 years of age or older. or
   98         (b) A financial institution that has trust powers and, has
   99  a place of business in this state, and is authorized to conduct
  100  trust business in this state.
  101         (c) A not-for-profit corporation that:
  102         1.Is organized for charitable or religious purposes in
  103  this state;
  104         2.Was qualified as a court-appointed guardian before
  105  January 1, 1996; and
  106         3.Is a tax-exempt organization under s. 501(c)(3) of the
  107  Internal Revenue Code. However, this subparagraph applies only
  108  to a corporation that acts through an individual listed in the
  109  records of the Division of Corporations of the Department of
  110  State as a current officer of the corporation and only upon the
  111  occurrence of any of the following events:
  112         a. Posting and maintenance by the corporation of a blanket
  113  fiduciary bond of at least $250,000 with the clerk of the
  114  circuit court in the county in which the corporation’s primary
  115  place of business is located. The corporation shall provide
  116  proof of the fiduciary bond to the clerk of each additional
  117  circuit court in which the corporation is serving as agent for a
  118  resident of that circuit. The bond must cover all principals for
  119  whom the corporation has been appointed as an agent at any given
  120  time. The liability of the provider of the bond is limited to
  121  the face value of the bond, regardless of the number of
  122  principals for whom the corporation is acting as an agent. The
  123  terms of the bond must cover the acts or omissions of each agent
  124  or employee of the corporation who has direct contact with the
  125  principal or access to the principal’s assets. The bond must be
  126  payable to the Governor and his or her successors in office and
  127  be conditioned on the faithful performance of all duties of an
  128  agent under this chapter.
  129         b. Maintenance by the corporation of a liability insurance
  130  policy that covers any losses sustained by the principal caused
  131  by errors, omissions, or any intentional misconduct committed by
  132  the corporation’s officers or agents. The policy must cover all
  133  principals for whom the corporation is acting as an agent for
  134  losses up to $250,000. The terms of the policy must cover acts
  135  or omissions of each agent or employee of the corporation who
  136  has direct contact with the principal or access to the
  137  principal’s assets.
  138         c. Signing by the principal of a separate written
  139  instrument containing the following language in 14-point
  140  uppercase type:
  141  
  142  I HAVE BEEN ADVISED THAT OFFICERS OF THE NOT-FOR-PROFIT
  143  CORPORATION HAVE DECLINED TO AGREE TO BE JOINTLY AND SEVERALLY
  144  LIABLE WITH THE NOT-FOR-PROFIT CORPORATION FOR ACTS OR OMISSIONS
  145  OCCURRING IN THE EXERCISE OF THE POWER OF ATTORNEY EXECUTED
  146  UNDER CHAPTER 709, FLORIDA STATUTES.
  147  
  148  I HAVE ALSO BEEN ADVISED THAT THE NOT-FOR-PROFIT CORPORATION
  149  THAT I HAVE NAMED AS MY AGENT UNDER MY POWER OF ATTORNEY HAS
  150  ELECTED NOT TO POST AND MAINTAIN A FIDUCIARY BOND OR MAINTAIN
  151  INSURANCE IN ACCORDANCE WITH SECTION 709.2105(1)(c), FLORIDA
  152  STATUTES.
  153  
  154  I UNDERSTAND THAT THE ASSETS OF THE NOT-FOR-PROFIT CORPORATION
  155  MAY NOT BE SUFFICIENT TO COVER LIABILITY ARISING FROM AN ERROR,
  156  AN OMISSION, OR ANY INTENTIONAL MISCONDUCT COMMITTED BY AN
  157  EMPLOYEE OR AGENT OF THE CORPORATION.
  158  
  159         d.Designation of the corporation by a principal as an
  160  agent under a power of attorney and the corporation acts as an
  161  agent for the principal. However, each officer of the
  162  corporation is jointly and severally liable with the corporation
  163  for acts and omissions under the power of attorney and this
  164  chapter which occur when there is no fiduciary bond as provided
  165  in sub-subparagraph a., liability insurance as provided in sub
  166  subparagraph b., or signed acknowledgement as provided in sub
  167  subparagraph c.
  168         (2) A power of attorney must be signed by the principal and
  169  by two subscribing witnesses and be acknowledged by the
  170  principal before a notary public or as otherwise provided in s.
  171  695.03.
  172         (3) If the principal is physically unable to sign the power
  173  of attorney, the notary public before whom the principal’s oath
  174  or acknowledgment is made may sign the principal’s name on the
  175  power of attorney pursuant to s. 117.05(14).
  176         Section 2. Subsection (3) of section 709.2109, Florida
  177  Statutes, is amended to read:
  178         709.2109 Termination or suspension of power of attorney or
  179  agent’s authority.—
  180         (3) If any person initiates judicial proceedings to
  181  determine the principal’s incapacity or for the appointment of a
  182  guardian advocate, the authority granted under the power of
  183  attorney is suspended until the petition is dismissed or
  184  withdrawn or the court enters an order authorizing the agent to
  185  exercise one or more powers granted under the power of attorney.
  186  However, if the agent named in the power of attorney is the
  187  principal’s parent, spouse, child, or grandchild, the authority
  188  under the power of attorney is not suspended unless a verified
  189  motion in accordance with s. 744.3203 is also filed.
  190         (a) If an emergency arises after initiation of proceedings
  191  to determine incapacity and before adjudication regarding the
  192  principal’s capacity, the agent may petition the court in which
  193  the proceeding is pending for authorization to exercise a power
  194  granted under the power of attorney. The petition must set forth
  195  the nature of the emergency, the property or matter involved,
  196  and the power to be exercised by the agent.
  197         (b) Notwithstanding the provisions of this section, unless
  198  otherwise ordered by the court, a proceeding to determine
  199  incapacity does not affect the authority of the agent to make
  200  health care decisions for the principal, including, but not
  201  limited to, those provided in chapter 765. If the principal has
  202  executed a health care advance directive designating a health
  203  care surrogate, the terms of the directive control if the
  204  directive and the power of attorney are in conflict unless the
  205  power of attorney is later executed and expressly states
  206  otherwise.
  207         Section 3. Subsection (5) is added to section 744.107,
  208  Florida Statutes, to read:
  209         744.107 Court monitors.—
  210         (5) The court may appoint the office of criminal conflict
  211  and civil regional counsel as monitor if the ward is indigent.
  212         Section 4. Subsection (6) is added to section 744.1075,
  213  Florida Statutes, to read:
  214         744.1075 Emergency court monitor.—
  215         (6) The court may appoint the office of criminal conflict
  216  and civil regional counsel as monitor if the ward is indigent.
  217         Section 5. Subsections (5) and (8) of section 744.108,
  218  Florida Statutes, are amended, and subsection (9) is added to
  219  that section, to read:
  220         744.108 Guardian Guardian’s and attorney attorney’s fees
  221  and expenses.—
  222         (5) All petitions for guardian guardian’s and attorney
  223  attorney’s fees and expenses must be accompanied by an itemized
  224  description of the services performed for the fees and expenses
  225  sought to be recovered.
  226         (8) When court proceedings are instituted to review or
  227  determine a guardian guardian’s or an attorney attorney’s fees
  228  under subsection (2), such proceedings are part of the
  229  guardianship administration process and the costs, including
  230  costs and attorney fees for the guardian’s attorney, an attorney
  231  appointed under s. 744.331(2), or an attorney who has rendered
  232  services to the ward, shall be determined by the court and paid
  233  from the assets of the guardianship estate unless the court
  234  finds the requested compensation under subsection (2) to be
  235  substantially unreasonable.
  236         (9) The court may determine that a request for compensation
  237  by the guardian, the guardian’s attorney, a person employed by
  238  the guardian, an attorney appointed under s. 744.331(2), or an
  239  attorney who has rendered services to the ward is reasonable
  240  without receiving expert testimony. A person or party may offer
  241  expert testimony for or against a request for compensation after
  242  giving notice to interested persons. Reasonable expert witness
  243  fees shall be awarded by the court and paid from the assets of
  244  the guardianship estate using the standards in subsection (8).
  245         Section 6. Section 744.3025, Florida Statutes, is amended
  246  to read:
  247         744.3025 Claims of minors.—
  248         (1)(a) The court may appoint a guardian ad litem to
  249  represent the minor’s interest before approving a settlement of
  250  the minor’s portion of the claim in a any case in which a minor
  251  has a claim for personal injury, property damage, wrongful
  252  death, or other cause of action in which the gross settlement of
  253  the claim exceeds $15,000 if the court believes a guardian ad
  254  litem is necessary to protect the minor’s interest.
  255         (b) Except as provided in paragraph (e), the court shall
  256  appoint a guardian ad litem to represent the minor’s interest
  257  before approving a settlement of the minor’s claim in a any case
  258  in which the gross settlement involving a minor equals or
  259  exceeds $50,000.
  260         (c) The appointment of the guardian ad litem must be
  261  without the necessity of bond or notice.
  262         (d) The duty of the guardian ad litem is to protect the
  263  minor’s interests as described in the Florida Probate Rules.
  264         (e) A court need not appoint a guardian ad litem for the
  265  minor if a guardian of the minor has previously been appointed
  266  and that guardian has no potential adverse interest to the
  267  minor. A court may appoint a guardian ad litem if the court
  268  believes a guardian ad litem is necessary to protect the
  269  interests of the minor.
  270         (2) Unless waived, the court shall award reasonable fees
  271  and costs to the guardian ad litem to be paid out of the gross
  272  proceeds of the settlement.
  273         (3) A settlement of a claim pursuant to this section is
  274  subject to the confidentiality provisions of this chapter.
  275         Section 7. Subsections (2) through (8) of section 744.3031,
  276  Florida Statutes, are renumbered as subsections (3) through (9),
  277  respectively, a new subsection (2) is added to that section, and
  278  present subsection (8) of that section is amended, to read:
  279         744.3031 Emergency temporary guardianship.—
  280         (2) Notice of filing of the petition for appointment of an
  281  emergency temporary guardian and a hearing on the petition must
  282  be served on the alleged incapacitated person and on the alleged
  283  incapacitated person’s attorney at least 24 hours before the
  284  hearing on the petition is commenced, unless the petitioner
  285  demonstrates that substantial harm to the alleged incapacitated
  286  person would occur if the 24-hour notice is given.
  287         (9)(8)(a) An emergency temporary guardian shall file a
  288  final report no later than 30 days after the expiration of the
  289  emergency temporary guardianship.
  290         (b)A court may not authorize any final payment of the
  291  emergency temporary guardian fees or the fees of his or her
  292  attorney until the final report is filed.
  293         (c)(b) If an emergency temporary guardian is a guardian for
  294  the property, the final report must consist of a verified
  295  inventory of the property, as provided in s. 744.365, as of the
  296  date the letters of emergency temporary guardianship were
  297  issued, a final accounting that gives a full and correct account
  298  of the receipts and disbursements of all the property of the
  299  ward over which the guardian had control, and a statement of the
  300  property of the ward on hand at the end of the emergency
  301  temporary guardianship. If the emergency temporary guardian
  302  becomes the successor guardian of the property, the final report
  303  must satisfy the requirements of the initial guardianship report
  304  for the guardian of the property as provided in s. 744.362.
  305         (d)(c) If the emergency temporary guardian is a guardian of
  306  the person, the final report must summarize the activities of
  307  the temporary guardian with regard to residential placement,
  308  medical condition, mental health and rehabilitative services,
  309  and the social condition of the ward to the extent of the
  310  authority granted to the temporary guardian in the letters of
  311  guardianship. If the emergency temporary guardian becomes the
  312  successor guardian of the person, the report must satisfy the
  313  requirements of the initial report for a guardian of the person
  314  as stated in s. 744.362.
  315         (e)(d) A copy of the final report of the emergency
  316  temporary guardianship shall be served on the successor guardian
  317  and the ward.
  318         Section 8. Subsection (7) is added to section 744.309,
  319  Florida Statutes, to read:
  320         744.309 Who may be appointed guardian of a resident ward.—
  321         (7) FOR-PROFIT CORPORATE GUARDIAN.—A for-profit corporate
  322  guardian existing under the laws of this state is qualified to
  323  act as guardian of a ward if the entity is qualified to do
  324  business in the state, is wholly owned by the person who is the
  325  circuit’s public guardian in the circuit where the corporate
  326  guardian is appointed, has met the registration requirements of
  327  s. 744.1083, and posts and maintains a bond or insurance policy
  328  under paragraph (a).
  329         (a) The for-profit corporate guardian must meet one of the
  330  following requirements:
  331         1. Post and maintain a blanket fiduciary bond of at least
  332  $250,000 with the clerk of the circuit court in the county in
  333  which the corporate guardian has its principal place of
  334  business. The corporate guardian shall provide proof of the
  335  fiduciary bond to the clerks of each additional circuit court in
  336  which he or she is serving as a guardian. The bond must cover
  337  all wards for whom the corporation has been appointed as a
  338  guardian at any given time. The liability of the provider of the
  339  bond is limited to the face value of the bond, regardless of the
  340  number of wards for whom the corporation is acting as a
  341  guardian. The terms of the bond must cover the acts or omissions
  342  of each agent or employee of the corporation who has direct
  343  contact with the ward or access to the assets of the
  344  guardianship. The bond must be payable to the Governor and his
  345  or her successors in office and be conditioned on the faithful
  346  performance of all duties of a guardian under this chapter. The
  347  bond is in lieu of and not in addition to the bond required
  348  under s. 744.1085 but is in addition to any bonds required under
  349  s. 744.351. The expenses incurred to satisfy the bonding
  350  requirements of this section may not be paid with the assets of
  351  any ward; or
  352         2. Maintain a liability insurance policy that covers any
  353  losses sustained by the guardianship caused by errors,
  354  omissions, or any intentional misconduct committed by the
  355  corporation’s officers or agents. The policy must cover all
  356  wards for whom the corporation is acting as a guardian for
  357  losses up to $250,000. The terms of the policy must cover acts
  358  or omissions of each agent or employee of the corporation who
  359  has direct contact with the ward or access to the assets of the
  360  guardianship. The corporate guardian shall provide proof of the
  361  fiduciary bond to the clerk of each circuit court in which he or
  362  she is serving as a guardian.
  363         (b) A for-profit corporation appointed as guardian before
  364  July 1, 2015, is also qualified to serve as a guardian in the
  365  particular guardianships in which the corporation has already
  366  been appointed as guardian.
  367         Section 9. Section 744.3115, Florida Statutes, is amended
  368  to read:
  369         744.3115 Advance directives for health care.—In each
  370  proceeding in which a guardian is appointed under this chapter,
  371  the court shall determine whether the ward, prior to incapacity,
  372  has executed any valid advance directive under chapter 765. If
  373  any advance directive exists, the court shall specify in its
  374  order and letters of guardianship what authority, if any, the
  375  guardian shall exercise over the ward with regard to health care
  376  decisions and what authority, if any, the surrogate shall
  377  continue to exercise over the ward with regard to health care
  378  decisions surrogate. Pursuant to the grounds listed in s.
  379  765.105, the court, upon its own motion, may, with notice to the
  380  surrogate and any other appropriate parties, modify or revoke
  381  the authority of the surrogate to make health care decisions for
  382  the ward. Any order revoking or modifying the authority of the
  383  surrogate must be supported by specific written findings of
  384  fact. If the court order provides that the guardian is
  385  responsible for making health care decisions for the ward, the
  386  guardian shall assume the responsibilities of the surrogate
  387  which are provided in s. 765.205. For purposes of this section,
  388  the term “health care decision” has the same meaning as in s.
  389  765.101.
  390         Section 10. Section 744.312, Florida Statutes, is reordered
  391  and amended to read:
  392         744.312 Considerations in appointment of guardian.—
  393         (2)(1)If a guardian cannot be appointed under subsection
  394  (1) Subject to the provisions of subsection (4), the court may
  395  appoint any person who is fit and proper and qualified to act as
  396  guardian, whether related to the ward or not.
  397         (2) The court shall give preference to the appointment of a
  398  person who:
  399         (a) Is related by blood or marriage to the ward;
  400         (b) Has educational, professional, or business experience
  401  relevant to the nature of the services sought to be provided;
  402         (c) Has the capacity to manage the financial resources
  403  involved; or
  404         (d) Has the ability to meet the requirements of the law and
  405  the unique needs of the individual case.
  406         (3) The court shall also:
  407         (a) Consider the wishes expressed by an incapacitated
  408  person as to who shall be appointed guardian.;
  409         (b) Consider the preference of a minor who is age 14 or
  410  over as to who should be appointed guardian.;
  411         (c) Consider any person designated as guardian in any will
  412  in which the ward is a beneficiary.
  413         (d) Consider the wishes of the ward’s next of kin when the
  414  ward cannot express a preference.
  415         (1)(4) If the person designated is qualified to serve
  416  pursuant to s. 744.309, the court shall appoint any standby
  417  guardian or preneed guardian, unless the court determines that
  418  appointing such person is contrary to the best interests of the
  419  ward.
  420         (4) Except when a standby guardian or a preneed guardian is
  421  appointed by the court:
  422         (a) In each case when a court appoints a professional
  423  guardian and does not use a rotation system for such
  424  appointment, the court must make specific findings of fact
  425  stating why the person was selected as guardian in the
  426  particular matter involved. The findings must reference each of
  427  the factors listed in subsections (2) and (3).
  428         (b) An emergency temporary guardian who is a professional
  429  guardian may not be appointed as the permanent guardian of a
  430  ward unless one of the next of kin of the alleged incapacitated
  431  person or the ward requests that the professional guardian be
  432  appointed as permanent guardian. The court may waive the
  433  limitations of this paragraph if the special requirements of the
  434  guardianship demand that the court appoint a guardian because he
  435  or she has special talent or specific prior experience. The
  436  court must make specific findings of fact that justify waiving
  437  the limitations of this paragraph.
  438         (5) The court may not give preference to the appointment of
  439  a person under subsection (2) based solely on the fact that such
  440  person was appointed by the court to serve as an emergency
  441  temporary guardian.
  442         Section 11. Section 744.3203, Florida Statutes, is created
  443  to read:
  444         744.3203 Suspension of power of attorney before incapacity
  445  determination.—
  446         (1) At any time during proceedings to determine incapacity
  447  but before the entry of an order determining incapacity, the
  448  authority granted under an alleged incapacitated person’s power
  449  of attorney to a parent, spouse, child, or grandchild is
  450  suspended when the petitioner files a motion stating that a
  451  specific power of attorney should be suspended for any of the
  452  following grounds:
  453         (a) The agent’s decisions are not in accord with the
  454  alleged incapacitated person’s known desires.
  455         (b) The power of attorney is invalid.
  456         (c) The agent has failed to discharge his or her duties or
  457  incapacity or illness renders the agent incapable of discharging
  458  duties.
  459         (d) The agent has abused powers.
  460         (e) There is a danger that the property of the alleged
  461  incapacitated person may be wasted, misappropriated, or lost
  462  unless the authority under the power of attorney is suspended.
  463  
  464  Grounds for suspending a power of attorney do not include the
  465  existence of a dispute between the agent and the petitioner
  466  which is more appropriate for resolution in some other forum or
  467  a legal proceeding other than a guardianship proceeding.
  468         (2) The motion must:
  469         (a) Identify one or more of the grounds in subsection (1);
  470         (b) Include specific statements of fact showing that
  471  grounds exist to justify the relief sought; and
  472         (c) Include the following statement: “Under penalties of
  473  perjury, I declare that I have read the foregoing motion and
  474  that the facts stated in it are true to the best of my knowledge
  475  and belief,” followed by the signature of the petitioner.
  476         (3) Upon the filing of a response to the motion by the
  477  agent under the power of attorney, the court shall schedule the
  478  motion for an expedited hearing. Unless an emergency arises and
  479  the agent’s response sets forth the nature of the emergency, the
  480  property or matter involved, and the power to be exercised by
  481  the agent, notice must be given to all interested persons, the
  482  alleged incapacitated person, and the alleged incapacitated
  483  person’s attorney. The court order following the hearing must
  484  set forth what powers the agent is permitted to exercise, if
  485  any, pending the outcome of the petition to determine
  486  incapacity.
  487         (4) In addition to any other remedy authorized by law, a
  488  court may award reasonable attorney fees and costs to an agent
  489  who successfully challenges the suspension of the power of
  490  attorney if the petitioner’s motion was made in bad faith.
  491         (5) The suspension of authority granted to persons other
  492  than a parent, spouse, child, or grandchild shall be as provided
  493  in s. 709.2109.
  494         Section 12. Subsection (6) and paragraph (c) of subsection
  495  (7) of section 744.331, Florida Statutes, are amended to read:
  496         744.331 Procedures to determine incapacity.—
  497         (6) ORDER DETERMINING INCAPACITY.—If, after making findings
  498  of fact on the basis of clear and convincing evidence, the court
  499  finds that a person is incapacitated with respect to the
  500  exercise of a particular right, or all rights, the court shall
  501  enter a written order determining such incapacity. In
  502  determining incapacity, the court shall consider the person’s
  503  unique needs and abilities and may remove only those rights that
  504  the court finds the person does not have the capacity to
  505  exercise. A person is determined to be incapacitated only with
  506  respect to those rights specified in the order.
  507         (a) The court shall make the following findings:
  508         1. The exact nature and scope of the person’s incapacities;
  509         2. The exact areas in which the person lacks capacity to
  510  make informed decisions about care and treatment services or to
  511  meet the essential requirements for her or his physical or
  512  mental health or safety;
  513         3. The specific legal disabilities to which the person is
  514  subject; and
  515         4. The specific rights that the person is incapable of
  516  exercising.
  517         (b) When an order determines that a person is incapable of
  518  exercising delegable rights, the court must consider and find
  519  whether there is an alternative to guardianship that will
  520  sufficiently address the problems of the incapacitated person. A
  521  guardian must be appointed to exercise the incapacitated
  522  person’s delegable rights unless the court finds there is an
  523  alternative. A guardian may not be appointed if the court finds
  524  there is an alternative to guardianship which will sufficiently
  525  address the problems of the incapacitated person. If the court
  526  finds there is not an alternative to guardianship that
  527  sufficiently addresses the problems of the incapacitated person,
  528  a guardian must be appointed to exercise the incapacitated
  529  person’s delegable rights.
  530         (c) In determining that a person is totally incapacitated,
  531  the order must contain findings of fact demonstrating that the
  532  individual is totally without capacity to care for herself or
  533  himself or her or his property.
  534         (d) An order adjudicating a person to be incapacitated
  535  constitutes proof of such incapacity until further order of the
  536  court.
  537         (e) After the order determining that the person is
  538  incapacitated has been filed with the clerk, it must be served
  539  on the incapacitated person. The person is deemed incapacitated
  540  only to the extent of the findings of the court. The filing of
  541  the order is notice of the incapacity. An incapacitated person
  542  retains all rights not specifically removed by the court.
  543         (f) Upon the filing of a verified statement by an
  544  interested person stating:
  545         1. That he or she has a good faith belief that the alleged
  546  incapacitated person’s trust, trust amendment, or durable power
  547  of attorney is invalid; and
  548         2. A reasonable factual basis for that belief,
  549  
  550  the trust, trust amendment, or durable power of attorney shall
  551  not be deemed to be an alternative to the appointment of a
  552  guardian. The appointment of a guardian does not limit the
  553  court’s power to determine that certain authority granted by a
  554  durable power of attorney is to remain exercisable by the agent
  555  attorney in fact.
  556         (7) FEES.—
  557         (c) If the petition is dismissed or denied:,
  558         1. The fees of the examining committee shall be paid upon
  559  court order as expert witness fees under s. 29.004(6).
  560         2. Costs and attorney attorney’s fees of the proceeding may
  561  be assessed against the petitioner if the court finds the
  562  petition to have been filed in bad faith. The petitioner shall
  563  also reimburse the state courts system for any amounts paid
  564  under subparagraph 1. upon such a finding.
  565         Section 13. Subsection (4) of section 744.344, Florida
  566  Statutes, is amended to read:
  567         744.344 Order of appointment.—
  568         (4) If a petition for the appointment of a guardian has not
  569  been filed or ruled upon at the time of the hearing on the
  570  petition to determine capacity, the court may appoint an
  571  emergency temporary guardian in the manner and for the purposes
  572  specified in s. 744.3031.
  573         Section 14. Section 744.345, Florida Statutes, is amended
  574  to read:
  575         744.345 Letters of guardianship.—Letters of guardianship
  576  shall be issued to the guardian and shall specify whether the
  577  guardianship pertains to the person, or the property, or both,
  578  of the ward. The letters must state whether the guardianship is
  579  plenary or limited, and, if limited, the letters must state the
  580  powers and duties of the guardian. If the guardianship is
  581  limited, The letters shall state whether or not and to what
  582  extent the guardian is authorized to act on behalf of the ward
  583  with regard to any advance directive previously executed by the
  584  ward.
  585         Section 15. Section 744.359, Florida Statutes, is created
  586  to read:
  587         744.359 Abuse, neglect, or exploitation by a guardian.—
  588         (1) A guardian may not abuse, neglect, or exploit a ward.
  589         (2) A guardian has committed exploitation when the
  590  guardian:
  591         (a) Commits fraud in obtaining appointment as a guardian;
  592         (b) Abuses his or her powers; or
  593         (c) Wastes, embezzles, or intentionally mismanages the
  594  assets of the ward.
  595         (3) A person who believes that a guardian is abusing,
  596  neglecting, or exploiting a ward shall report the incident to
  597  the central abuse hotline of the Department of Children and
  598  Families.
  599         (4) This section shall be interpreted in conformity with s.
  600  825.103.
  601         Section 16. Section 744.361, Florida Statutes, is amended
  602  to read:
  603         744.361 Powers and duties of guardian.—
  604         (1) The guardian of an incapacitated person is a fiduciary
  605  and may exercise only those rights that have been removed from
  606  the ward and delegated to the guardian. The guardian of a minor
  607  shall exercise the powers of a plenary guardian.
  608         (2) The guardian shall act within the scope of the
  609  authority granted by the court and as provided by law.
  610         (3) The guardian shall act in good faith.
  611         (4) A guardian may not act in a manner that is contrary to
  612  the ward’s best interests under the circumstances.
  613         (5) A guardian who has special skills or expertise, or is
  614  appointed in reliance upon the guardian’s representation that
  615  the guardian has special skills or expertise, shall use those
  616  special skills or expertise when acting on behalf of the ward.
  617         (6)(2) The guardian shall file an initial guardianship
  618  report in accordance with s. 744.362.
  619         (7)(3) The guardian shall file a guardianship report
  620  annually in accordance with s. 744.367.
  621         (8)(4) The guardian of the person shall implement the
  622  guardianship plan.
  623         (9)(5) When two or more guardians have been appointed, the
  624  guardians shall consult with each other.
  625         (10)(6) A guardian who is given authority over any property
  626  of the ward shall:
  627         (a) Protect and preserve the property and invest it
  628  prudently as provided in chapter 518, apply it as provided in s.
  629  744.397, and keep clear, distinct, and accurate records of the
  630  administration of the ward’s property account for it faithfully.
  631         (b) Perform all other duties required of him or her by law.
  632         (c) At the termination of the guardianship, deliver the
  633  property of the ward to the person lawfully entitled to it.
  634         (11)(7) The guardian shall observe the standards in dealing
  635  with the guardianship property that would be observed by a
  636  prudent person dealing with the property of another, and, if the
  637  guardian has special skills or is named guardian on the basis of
  638  representations of special skills or expertise, he or she is
  639  under a duty to use those skills.
  640         (12)(8) The guardian, if authorized by the court, shall
  641  take possession of all of the ward’s property and of the rents,
  642  income, issues, and profits from it, whether accruing before or
  643  after the guardian’s appointment, and of the proceeds arising
  644  from the sale, lease, or mortgage of the property or of any
  645  part. All of the property and the rents, income, issues, and
  646  profits from it are assets in the hands of the guardian for the
  647  payment of debts, taxes, claims, charges, and expenses of the
  648  guardianship and for the care, support, maintenance, and
  649  education of the ward or the ward’s dependents, as provided for
  650  under the terms of the guardianship plan or by law.
  651         (13) Recognizing that every individual has unique needs and
  652  abilities, a guardian who is given authority over a ward’s
  653  person shall, as appropriate under the circumstances:
  654         (a) Consider the expressed desires of the ward as known by
  655  the guardian when making decisions that affect the ward.
  656         (b) Allow the ward to maintain contact with family and
  657  friends unless the guardian believes that such contact may cause
  658  harm to the ward.
  659         (c) Not restrict the physical liberty of the ward more than
  660  reasonably necessary to protect the ward or another person from
  661  serious physical injury, illness, or disease.
  662         (d) Assist the ward in developing or regaining capacity, if
  663  medically possible.
  664         (e) Notify the court if the guardian believes that the ward
  665  has regained capacity and that one or more of the rights that
  666  have been removed should be restored to the ward.
  667         (f) To the extent applicable, make provision for the
  668  medical, mental, rehabilitative, or personal care services for
  669  the welfare of the ward.
  670         (g) To the extent applicable, acquire a clear understanding
  671  of the risks and benefits of a recommended course of health care
  672  treatment before making a health care decision.
  673         (h) Evaluate the ward’s medical and health care options,
  674  financial resources, and desires when making residential
  675  decisions that are best suited for the current needs of the
  676  ward.
  677         (i) Advocate on behalf of the ward in institutional and
  678  other residential settings and regarding access to home and
  679  community-based services.
  680         (j) Acquire an understanding of the available residential
  681  options and give priority to home and other community-based
  682  services and settings when not inconsistent with the person’s
  683  goals, needs, and preferences.
  684         (14)(9) A professional guardian must ensure that each of
  685  the guardian’s wards is personally visited by the guardian or
  686  one of the guardian’s professional staff at least once each
  687  calendar quarter. During the personal visit, the guardian or the
  688  guardian’s professional staff person shall assess:
  689         (a) The ward’s physical appearance and condition.
  690         (b) The appropriateness of the ward’s current living
  691  situation.
  692         (c) The need for any additional services and the necessity
  693  for continuation of existing services, taking into consideration
  694  all aspects of social, psychological, educational, direct
  695  service, health, and personal care needs.
  696         (d) The nature and extent of visitation and communication
  697  with the ward’s family and friends.
  698  
  699  This subsection does not apply to a professional guardian who
  700  has been appointed only as guardian of the property.
  701         Section 17. Subsection (1) of section 744.367, Florida
  702  Statutes, is amended to read:
  703         744.367 Duty to file annual guardianship report.—
  704         (1) Unless the court requires filing on a calendar-year
  705  basis, each guardian of the person shall file with the court an
  706  annual guardianship plan at least 60 days, but no more than
  707  within 90 days, before after the last day of the anniversary
  708  month that the letters of guardianship were signed, and the plan
  709  must cover the coming fiscal year, ending on the last day in
  710  such anniversary month. If the court requires calendar-year
  711  filing, the guardianship plan for the forthcoming calendar year
  712  must be filed on or after September 1, but no later than
  713  December 1, of the current year before April 1 of each year.
  714         Section 18. Subsection (8) of section 744.369, Florida
  715  Statutes, is amended to read:
  716         744.369 Judicial review of guardianship reports.—
  717         (8) The approved report constitutes the authority for the
  718  guardian to act in the forthcoming year. The powers of the
  719  guardian are limited by the terms of the report. The annual
  720  report may not grant additional authority to the guardian
  721  without a hearing, as provided for in s. 744.331, to determine
  722  that the ward is incapacitated to act in that matter. Unless the
  723  court orders otherwise, the guardian may continue to act under
  724  authority of the last approved report until the forthcoming
  725  year’s report is approved.
  726         Section 19. Subsection (1) of section 744.3715, Florida
  727  Statutes, is amended to read:
  728         744.3715 Petition for interim judicial review.—
  729         (1) At any time, any interested person, including the ward,
  730  may petition the court for review alleging that the guardian is
  731  not complying with the guardianship plan, or is exceeding his or
  732  her authority under the guardianship plan, is acting in a manner
  733  contrary to s. 744.361, is denying visitation between the ward
  734  and his or her relatives in violation of s. 744.361(13), or and
  735  the guardian is not acting in the best interest of the ward. The
  736  petition for review must state the nature of the objection to
  737  the guardian’s action or proposed action. Upon the filing of any
  738  such petition, the court shall review the petition and act upon
  739  it expeditiously.
  740         Section 20. Paragraphs (a) and (b) of subsection (3) of
  741  section 744.464, Florida Statutes, are amended, and subsection
  742  (4) is added to that section, to read:
  743         744.464 Restoration to capacity.—
  744         (3) ORDER OF RESTORATION.—
  745         (a) If no objections are filed, and the court is satisfied
  746  that with the medical examination establishes by a preponderance
  747  of the evidence that restoration of all or some of the ward’s
  748  rights is appropriate, the court shall enter an order of
  749  restoration of capacity, restoring all or some of the rights
  750  which were removed from the ward in accordance with those
  751  findings. The order must be issued within 30 days after the
  752  medical report is filed.
  753         (b) At the conclusion of a hearing, conducted pursuant to
  754  s. 744.1095, the court shall make specific findings of fact and,
  755  based on a preponderance of the evidence, enter an order either
  756  denying the suggestion of capacity or restoring all or some of
  757  the rights which were removed from the ward. The ward has the
  758  burden of proving by a preponderance of the evidence that the
  759  restoration of capacity is warranted.
  760         (4) TIMELINESS OF HEARING.—The court shall give priority to
  761  any suggestion of capacity and shall advance the cause on the
  762  calendar.
  763         Section 21. Section 709.2109, Florida Statutes, as amended
  764  by this act, and sections 744.3203 and 744.359, Florida
  765  Statutes, as created by this act, apply to all proceedings filed
  766  on or after July 1, 2015. The amendments made by this act to ss.
  767  744.107, 744.1075, 744.108, 744.3025, 744.3031, 744.309,
  768  744.3115, 744.312, 744.331, 744.344, 744.345, 744.361, 744.367,
  769  744.369, 744.3715, and 744.464, Florida Statutes, apply to all
  770  proceedings pending on July 1, 2015.
  771         Section 22. This act shall take effect July 1, 2015.