Florida Senate - 2020 CS for CS for SB 994
By the Committees on Rules; and Judiciary; and Senators
Passidomo, Stewart, and Thurston
595-03555-20 2020994c2
1 A bill to be entitled
2 An act relating to guardianship; amending s. 744.312,
3 F.S.; expanding factors for a court to consider when
4 appointing a guardian; amending s. 744.334, F.S.;
5 revising requirements for a petition for the
6 appointment of a guardian; defining the term
7 “alternatives to guardianship”; prohibiting
8 professional guardians from petitioning for their own
9 appointment except under certain circumstances;
10 defining the term “relative”; providing that a
11 specified provision does not apply to public guardians
12 under specified circumstances; amending s. 744.363,
13 F.S.; expanding requirements for initial guardianship
14 plans; amending s. 744.367, F.S.; expanding
15 requirements for annual guardianship reports; defining
16 the term “remuneration”; amending s. 744.3675, F.S.;
17 expanding requirements for annual guardianship plans;
18 amending s. 744.441, F.S.; authorizing certain
19 guardians to sign an order not to resuscitate;
20 requiring the court to use specified procedures for
21 expedited judicial intervention under certain
22 circumstances; amending s. 744.446, F.S.; prohibiting
23 guardians from taking certain actions on behalf of an
24 alleged incapacitated person or minor; revising
25 provisions relating to conflicts of interest;
26 providing an effective date.
27
28 Be It Enacted by the Legislature of the State of Florida:
29
30 Section 1. Paragraph (e) is added to subsection (3) of
31 section 744.312, Florida Statutes, and subsection (1) of that
32 section is republished, to read:
33 744.312 Considerations in appointment of guardian.—
34 (1) If the person designated is qualified to serve pursuant
35 to s. 744.309, the court shall appoint any standby guardian or
36 preneed guardian, unless the court determines that appointing
37 such person is contrary to the best interests of the ward.
38 (3) The court shall also:
39 (e) Inquire into and consider potential disqualifications
40 under s. 744.309 and potential conflicts of interest under s.
41 744.446.
42 Section 2. Section 744.334, Florida Statutes, is amended to
43 read:
44 744.334 Petition for appointment of guardian or
45 professional guardian; contents.—
46 (1) Every petition for the appointment of a guardian shall
47 be verified by the petitioner and shall contain statements, to
48 the best of petitioner’s knowledge and belief, showing the name,
49 age, residence, and post office address of the alleged
50 incapacitated person or minor; the nature of her or his
51 incapacity, if any; the extent of guardianship desired, either
52 plenary or limited; the residence and post office address of the
53 petitioner; the names and addresses of the next of kin of the
54 alleged incapacitated person or minor, if known to the
55 petitioner; the name of the proposed guardian and the reasons
56 why she or he should be appointed guardian; whether the proposed
57 guardian is a professional guardian; the relationship and
58 previous relationship of the proposed guardian to the alleged
59 incapacitated person or minor ward; any other type of
60 guardianship under part III of this chapter or alternatives to
61 guardianship that the alleged incapacitated person or minor has
62 designated or is in currently or has been in previously; the
63 reasons why a guardian advocate under s. 744.3085 or other
64 alternatives to guardianship are insufficient to meet the needs
65 of the alleged incapacitated person or minor; and the nature and
66 value of property subject to the guardianship; and the reasons
67 why this person should be appointed guardian. The petition must
68 state whether If a willing and qualified guardian cannot be
69 located, the petition must so state. As used in this subsection,
70 the term “alternatives to guardianship” means an advance
71 directive as defined in s. 765.101, a durable power of attorney
72 as provided in chapter 709, a representative payee under 42
73 U.S.C. s. 1007, or a trust instrument as defined in s. 736.0103.
74 (2) If the petitioner is a professional guardian, she or he
75 may not petition for her or his own appointment unless the
76 petitioner is a relative of the alleged incapacitated person or
77 minor. For purposes of this subsection, the term “relative”
78 means an individual who would qualify to serve as a nonresident
79 guardian under s. 744.309(2). This subsection does not apply to
80 a public guardian appointed under s. 744.2006 who seeks
81 appointment as a guardian of a person of limited financial means
82 and whose compensation as guardian for such person would be paid
83 from the Office of Public and Professional Guardians or any
84 local government The petition for appointment of a professional
85 guardian must comply with the provisions of subsection (1), and
86 must state that the petitioner is a professional guardian.
87 Section 3. Subsection (1) of section 744.363, Florida
88 Statutes, is amended to read:
89 744.363 Initial guardianship plan.—
90 (1) The initial guardianship plan shall include all of the
91 following:
92 (a) The provision of medical, mental, or personal care
93 services for the welfare of the ward.;
94 (b) The provision of social and personal services for the
95 welfare of the ward.;
96 (c) The place and kind of residential setting best suited
97 for the needs of the ward.;
98 (d) The application of health and accident insurance and
99 any other private or governmental benefits to which the ward may
100 be entitled to meet any part of the costs of medical, mental
101 health, or related services provided to the ward.; and
102 (e) Any physical and mental examinations necessary to
103 determine the ward’s medical and mental health treatment needs.
104 (f) A list of any preexisting orders not to resuscitate
105 executed under s. 401.45(3) or preexisting advance directives,
106 as defined in s. 765.101, the date an order or directive was
107 signed, whether such order or directive has been suspended by
108 the court, and a description of the steps taken to identify and
109 locate the preexisting order not to resuscitate or advance
110 directive.
111 Section 4. Subsection (3) of section 744.367, Florida
112 Statutes, is amended to read:
113 744.367 Duty to file annual guardianship report.—
114 (3)(a) The annual guardianship report of a guardian of the
115 property must consist of an annual accounting, and the annual
116 guardianship report of a guardian of the person must consist of
117 an annual guardianship plan. The annual guardianship report of a
118 guardian of the property and the annual guardianship report of a
119 guardian of the person must both include a declaration of all
120 remuneration received by the guardian from any source for
121 services rendered to or on behalf of the ward. As used in this
122 paragraph, the term “remuneration” means any payment or other
123 benefit made directly or indirectly, overtly or covertly, or in
124 cash or in kind to the guardian.
125 (b) The annual guardianship report must shall be served on
126 the ward, unless the ward is a minor or is totally
127 incapacitated, and on the attorney for the ward, if any. The
128 guardian shall provide a copy to any other person as the court
129 may direct.
130 Section 5. Paragraph (d) is added to subsection (1) of
131 section 744.3675, Florida Statutes, to read:
132 744.3675 Annual guardianship plan.—Each guardian of the
133 person must file with the court an annual guardianship plan
134 which updates information about the condition of the ward. The
135 annual plan must specify the current needs of the ward and how
136 those needs are proposed to be met in the coming year.
137 (1) Each plan for an adult ward must, if applicable,
138 include:
139 (d) A list of any preexisting orders not to resuscitate
140 executed under s. 401.45(3) or preexisting advance directives,
141 as defined in s. 765.101, the date an order or directive was
142 signed, whether such order or directive has been suspended by
143 the court, and a description of the steps taken to identify and
144 locate the preexisting order not to resuscitate or advance
145 directive.
146 Section 6. Section 744.441, Florida Statutes, is amended to
147 read:
148 744.441 Powers of guardian upon court approval.—After
149 obtaining approval of the court pursuant to a petition for
150 authorization to act:,
151 (1) A plenary guardian of the property, or a limited
152 guardian of the property within the powers granted by the order
153 appointing the guardian or an approved annual or amended
154 guardianship report, may:
155 (a)(1) Perform, compromise, or refuse performance of a
156 ward’s contracts that continue as obligations of the estate, as
157 he or she may determine under the circumstances.
158 (b)(2) Execute, exercise, or release any powers as trustee,
159 personal representative, custodian for minors, conservator, or
160 donee of any power of appointment or other power that the ward
161 might have lawfully exercised, consummated, or executed if not
162 incapacitated, if the best interest of the ward requires such
163 execution, exercise, or release.
164 (c)(3) Make ordinary or extraordinary repairs or
165 alterations in buildings or other structures; demolish any
166 improvements; or raze existing, or erect new, party walls or
167 buildings.
168 (d)(4) Subdivide, develop, or dedicate land to public use;
169 make or obtain the vacation of plats and adjust boundaries;
170 adjust differences in valuation on exchange or partition by
171 giving or receiving consideration; or dedicate easements to
172 public use without consideration.
173 (e)(5) Enter into a lease as lessor or lessee for any
174 purpose, with or without option to purchase or renew, for a term
175 within, or extending beyond, the period of guardianship.
176 (f)(6) Enter into a lease or arrangement for exploration
177 and removal of minerals or other natural resources or enter into
178 a pooling or unitization agreement.
179 (g)(7) Abandon property when, in the opinion of the
180 guardian, it is valueless or is so encumbered or in such
181 condition that it is of no benefit to the estate.
182 (h)(8) Pay calls, assessments, and other sums chargeable or
183 accruing against, or on account of, securities.
184 (i)(9) Borrow money, with or without security, to be repaid
185 from the property or otherwise and advance money for the
186 protection of the estate.
187 (j)(10) Effect a fair and reasonable compromise with any
188 debtor or obligor or extend, renew, or in any manner modify the
189 terms of any obligation owing to the estate.
190 (k)(11) Prosecute or defend claims or proceedings in any
191 jurisdiction for the protection of the estate and of the
192 guardian in the performance of his or her duties. Before
193 authorizing a guardian to bring an action described in s.
194 736.0207, the court shall first find that the action appears to
195 be in the ward’s best interests during the ward’s probable
196 lifetime. There shall be a rebuttable presumption that an action
197 challenging the ward’s revocation of all or part of a trust is
198 not in the ward’s best interests if the revocation relates
199 solely to a devise. This paragraph subsection does not preclude
200 a challenge after the ward’s death. If the court denies a
201 request that a guardian be authorized to bring an action
202 described in s. 736.0207, the court shall review the continued
203 need for a guardian and the extent of the need for delegation of
204 the ward’s rights.
205 (l)(12) Sell, mortgage, or lease any real or personal
206 property of the estate, including homestead property, or any
207 interest therein for cash or credit, or for part cash and part
208 credit, and with or without security for unpaid balances.
209 (m)(13) Continue any unincorporated business or venture in
210 which the ward was engaged.
211 (n)(14) Purchase the entire fee simple title to real estate
212 in this state in which the guardian has no interest, but the
213 purchase may be made only for a home for the ward, to protect
214 the home of the ward or the ward’s interest, or as a home for
215 the ward’s dependent family. If the ward is a married person and
216 the home of the ward or of the dependent family of the ward is
217 owned by the ward and spouse as an estate by the entirety and
218 the home is sold pursuant to the authority of paragraph (l)
219 subsection (12), the court may authorize the investment of any
220 part or all of the proceeds from the sale toward the purchase of
221 a fee simple title to real estate in this state for a home for
222 the ward or the dependent family of the ward as an estate by the
223 entirety owned by the ward and spouse. If the guardian is
224 authorized to acquire title to real estate for the ward or
225 dependent family of the ward as an estate by the entirety in
226 accordance with the preceding provisions, the conveyance shall
227 be in the name of the ward and spouse and shall be effective to
228 create an estate by the entirety in the ward and spouse.
229 (o)(15) Exercise any option contained in any policy of
230 insurance payable to, or inuring to the benefit of, the ward.
231 (p)(16) Pay reasonable funeral, interment, and grave marker
232 expenses for the ward from the ward’s estate.
233 (q)(17) Make gifts of the ward’s property to members of the
234 ward’s family in estate and income tax planning procedures.
235 (r)(18) When the ward’s will evinces an objective to obtain
236 a United States estate tax charitable deduction by use of a
237 split interest trust (as that term is defined in s. 736.1201),
238 but the maximum charitable deduction otherwise allowable will
239 not be achieved in whole or in part, execute a codicil on the
240 ward’s behalf amending said will to obtain the maximum
241 charitable deduction allowable without diminishing the aggregate
242 value of the benefits of any beneficiary under such will.
243 (s)(19) Create or amend revocable trusts or create
244 irrevocable trusts of property of the ward’s estate which may
245 extend beyond the disability or life of the ward in connection
246 with estate, gift, income, or other tax planning or in
247 connection with estate planning. The court shall retain
248 oversight of the assets transferred to a trust, unless otherwise
249 ordered by the court.
250 (t)(20) Renounce or disclaim any interest by testate or
251 intestate succession or by inter vivos transfer.
252 (u)(21) Enter into contracts that are appropriate for, and
253 in the best interest of, the ward.
254 (v)(22) As to a minor ward, pay expenses of the ward’s
255 support, health, maintenance, and education, if the ward’s
256 parents, or either of them, are alive.
257 (2) A plenary guardian or a limited guardian of a ward may
258 sign an order not to resuscitate as provided in s. 401.45(3).
259 When a plenary guardian or a limited guardian of a ward seeks to
260 obtain approval of the court to sign an order not to
261 resuscitate, if required by exigent circumstances, the
262 procedures for expedited judicial intervention under rule 5.900
263 of the Florida Probate Rules apply, and the court must hold a
264 preliminary hearing within 72 hours after the petition is filed.
265 Section 7. Present subsections (2), (3), and (4) of section
266 744.446, Florida Statutes, are redesignated as subsections (3),
267 (4), and (5), respectively, a new subsection (2) is added to
268 that section, and present subsection (2) of that section is
269 amended, to read:
270 744.446 Conflicts of interest; prohibited activities; court
271 approval; breach of fiduciary duty.—
272 (2) A guardian may not offer, pay, solicit, or receive a
273 commission, benefit, bonus, rebate, or kickback, directly or
274 indirectly, overtly or covertly, in cash or in kind, or engage
275 in a split-fee arrangement in return for referring, soliciting,
276 or engaging in a transaction for goods or services on behalf of
277 an alleged incapacitated person or minor, or a ward, for past or
278 future goods or services.
279 (3)(2) Unless prior approval is obtained by court order, or
280 unless such relationship existed before prior to appointment of
281 the guardian and is disclosed to the court in the petition for
282 appointment of guardian, a guardian may not:
283 (a) Have any interest, financial or otherwise, direct or
284 indirect, in any business transaction or activity with the ward,
285 the judge presiding over the case, any member of the appointed
286 examining committee, any court employee involved in the
287 guardianship process, or the attorney for the ward;
288 (b) Acquire an ownership, possessory, security, or other
289 pecuniary interest adverse to the ward;
290 (c) Be designated as a beneficiary on any life insurance
291 policy, pension, or benefit plan of the ward unless such
292 designation was validly made by the ward before prior to
293 adjudication of incapacity of the ward; and
294 (d) Directly or indirectly purchase, rent, lease, or sell
295 any property or services from or to any business entity of which
296 the guardian or the guardian’s spouse or any of the guardian’s
297 lineal descendants, or collateral kindred, is an officer,
298 partner, director, shareholder, or proprietor, or has any
299 financial interest.
300 Section 8. This act shall take effect July 1, 2020.