Florida Senate - 2021 SB 368 By Senator Baxley 12-00022E-21 2021368__ 1 A bill to be entitled 2 An act relating to an elder-focused dispute resolution 3 process; creating s. 44.407, F.S.; providing 4 legislative findings; defining terms; authorizing the 5 courts to appoint an eldercaring coordinator and refer 6 certain parties and elders to eldercaring 7 coordination; prohibiting the courts from referring 8 certain parties to eldercaring coordination without 9 the consent of the elder and other parties to the 10 action; specifying the duration of eldercaring 11 coordinator appointments; requiring the courts to 12 conduct intermittent review hearings regarding the 13 conclusion or extension of such appointments; 14 providing qualifications and disqualifications for 15 eldercaring coordinators; providing for the removal 16 and suspension of authority of certain eldercaring 17 coordinators; requiring that notice of hearing on 18 removal of a coordinator be timely served; authorizing 19 the courts to award certain fees and costs under 20 certain circumstances; requiring the court to appoint 21 successor eldercaring coordinators under certain 22 circumstances; authorizing the courts to make certain 23 determinations based on the fees and costs of 24 eldercaring coordination; providing that certain 25 communications between the parties and eldercaring 26 coordinators are confidential; providing exceptions to 27 confidentiality; providing requirements for emergency 28 reporting to courts under certain circumstances; 29 providing immunity from liability for certain parties 30 under specified circumstances; requiring the Florida 31 Supreme Court to establish certain minimum standards 32 and procedures for eldercaring coordinators; providing 33 an effective date. 34 35 Be It Enacted by the Legislature of the State of Florida: 36 37 Section 1. Section 44.407, Florida Statutes, is created to 38 read: 39 44.407 Elder-focused dispute resolution process.— 40 (1) LEGISLATIVE FINDINGS.—The Legislature finds that: 41 (a) Denying an elder a voice in decisions regarding himself 42 or herself may negatively affect the elder’s health and well 43 being, as well as deprive the elder of his or her legal rights. 44 Even if an elder is losing capacity to make major decisions for 45 himself or herself, the elder is still entitled to the dignity 46 of having his or her voice heard. 47 (b) As an alternative to proceedings in court, it is in the 48 best interest of an elder, their family members, and legally 49 recognized decisionmakers to have access to a nonadversarial 50 process to resolve disputes relating to an elder which focuses 51 on the elder’s wants, needs, and best interests. Such a process 52 will protect and preserve the elder’s exercisable rights. 53 (c) By recognizing that every elder, including those whose 54 capacity is being questioned, has unique needs, interests, and 55 differing abilities, the Legislature intends for this section to 56 promote the public welfare by establishing a unique dispute 57 resolution option to complement and enhance, not replace, other 58 services, such as the provision of legal information or legal 59 representation; financial advice; individual or family therapy; 60 medical, psychological, or psychiatric evaluation; or mediation, 61 specifically for issues related to the care and needs of elders. 62 The Legislature intends that this section be liberally construed 63 to accomplish these goals. 64 (2) DEFINITIONS.—As used in this section, the term: 65 (a) “Action” means a proceeding in which a party sought or 66 seeks a judgment or an order from the court to: 67 1. Determine if someone is or is not incapacitated pursuant 68 to s. 744.331. 69 2. Appoint or remove a guardian. 70 3. Undertake an investigation pursuant to s. 415.104. 71 4. Audit an annual guardianship report. 72 5. Review a proxy’s decision pursuant to s. 765.105. 73 6. Appoint a guardian advocate pursuant to s. 393.12. 74 7. Enter an injunction for the protection of an elder under 75 s. 825.1035. 76 8. Follow up on a complaint made to the Office of Public 77 and Professional Guardians pursuant to s. 744.2004. 78 9. Address advice received by the court from the clerk of 79 the court pursuant to s. 744.368(5). 80 10. At the discretion of the presiding judge, address other 81 matters pending before the court which involve the care or 82 safety of an elder or the security of an elder’s property. 83 (b) “Elder” means a person 60 years of age or older who is 84 alleged to be suffering from the infirmities of aging as 85 manifested by a physical, a mental, or an emotional dysfunction 86 to the extent that the elder’s ability to provide adequately for 87 the protection or care of his or her own person or property is 88 impaired. 89 (c) “Eldercaring coordination” means an elder-focused 90 dispute resolution process during which an eldercaring 91 coordinator assists an elder, legally authorized decisionmakers, 92 and others who participate by court order or by invitation of 93 the eldercaring coordinator, in resolving disputes regarding the 94 care and safety of an elder by: 95 1. Facilitating more effective communication and 96 negotiation and the development of problem-solving skills. 97 2. Providing education about eldercare resources. 98 3. Facilitating the creation, modification, or 99 implementation of an eldercaring plan and reassessing it as 100 necessary to reach a resolution of ongoing disputes concerning 101 the care and safety of the elder. 102 4. Making recommendations for the resolution of disputes 103 concerning the care and safety of the elder. 104 5. With the prior approval of the parties to an action or 105 of the court, making limited decisions within the scope of the 106 court’s order of referral. 107 (d) “Eldercaring coordination communication” means an oral 108 or a written statement or nonverbal conduct intended to make an 109 assertion by or to an eldercaring coordinator or individuals 110 involved in eldercaring coordination made during an eldercaring 111 coordination activity, or before the activity if made in 112 furtherance of eldercaring coordination. The term does not 113 include statements made during eldercaring coordination which 114 involve the commission of a crime, the intent to commit a crime, 115 or ongoing abuse, exploitation, or neglect of a child or 116 vulnerable adult. 117 (e) “Eldercaring coordinator” means an impartial third 118 person who is appointed by the court or designated by the 119 parties and who meets the requirements of subsection (5). The 120 role of the eldercaring coordinator is to assist parties through 121 eldercaring coordination in a manner that respects the elder’s 122 need for autonomy and safety. 123 (f) “Eldercaring plan” means a continually reassessed plan 124 for the items, tasks, or responsibilities needed to provide for 125 the care and safety of an elder which is modified throughout 126 eldercaring coordination to meet the changing needs of the elder 127 and which takes into consideration the preferences and wishes of 128 the elder. The plan is not a legally enforceable document, but 129 is meant for use by the parties and participants. 130 (g) “Good cause” means a finding that the eldercaring 131 coordinator: 132 1. Is not fulfilling the duties and obligations of the 133 position; 134 2. Has failed to comply with any order of the court, unless 135 the order has been superseded on appeal; 136 3. Has conflicting or adverse interests that affect his or 137 her impartiality; 138 4. Has engaged in circumstances that compromise the 139 integrity of eldercaring coordination; or 140 5. Has had a disqualifying event occur. 141 142 The term does not include a party’s disagreement with the 143 eldercaring coordinator’s methods or procedures. 144 (h) “Legally authorized decisionmaker” means an individual 145 designated, either by the elder or by the court, pursuant to 146 chapter 709, chapter 744, chapter 747, or chapter 765 who has 147 the authority to make specific decisions on behalf of the elder 148 who is the subject of an action. 149 (i) “Participant” means an individual who joins eldercaring 150 coordination by invitation of or with the consent of the 151 eldercaring coordinator but who has not filed a pleading in the 152 action from which the case was referred to eldercaring 153 coordination. 154 (j) “Party” includes the elder who is the subject of an 155 action and any other individual over whom the court has 156 jurisdiction. 157 (3) REFERRAL.— 158 (a) Upon agreement of the parties to the action, the 159 court’s own motion, or the motion of a party to the action, the 160 court may appoint an eldercaring coordinator and refer the 161 parties to eldercaring coordination to assist in the resolution 162 of disputes concerning the care and safety of the elder who is 163 the subject of an action. 164 (b) The court may not refer a party who has a history of 165 domestic violence or exploitation of an elderly person to 166 eldercaring coordination unless the elder and other parties in 167 the action consent to such referral. 168 1. The court shall offer each party an opportunity to 169 consult with an attorney or a domestic violence advocate before 170 accepting consent to such referral. The court shall determine 171 whether each party has given his or her consent freely and 172 voluntarily. 173 2. The court shall consider whether a party has committed 174 an act of exploitation as defined in s. 415.102(8) or s. 175 825.103(1) or domestic violence as defined in s. 741.28 against 176 another party or any member of another party’s family; engaged 177 in a pattern of behaviors that exert power and control over 178 another party and that may compromise another party’s ability to 179 negotiate a fair result; or engaged in behavior that leads 180 another party to have reasonable cause to believe that he or she 181 is in imminent danger of becoming a victim of domestic violence. 182 The court shall consider and evaluate all relevant factors, 183 including, but not limited to, the factors specified in s. 184 741.30(6)(b). 185 3. If a party has a history of domestic violence or 186 exploitation of an elderly person, the court must order 187 safeguards to protect the safety of the participants and the 188 elder and the elder’s property, including, but not limited to, 189 adherence to all provisions of an injunction for protection or 190 conditions of bail, probation, or a sentence arising from 191 criminal proceedings. 192 (4) COURT APPOINTMENT.—A court appointment of an 193 eldercaring coordinator is for a term of up to 2 years and the 194 court shall conduct review hearings intermittently to determine 195 whether the term should be concluded or extended. Appointments 196 conclude upon expiration of the term or upon discharge by the 197 court, whichever occurs earlier. 198 (5) QUALIFICATIONS FOR ELDERCARING COORDINATORS.— 199 (a) The court shall appoint qualified eldercaring 200 coordinators who meet the requirements of each of the following: 201 1. Meet one of the following professional requirements: 202 a. Be licensed as a mental health professional under 203 chapter 491 and hold at least a master’s degree in the 204 professional field of practice; 205 b. Be licensed as a psychologist under chapter 490; 206 c. Be licensed as a physician under chapter 458; 207 d. Be licensed as a nurse under chapter 464 and hold at 208 least a master’s degree; 209 e. Be certified by the Florida Supreme Court as a family 210 mediator and hold at least a master’s degree; 211 f. Be a member in good standing of The Florida Bar; or 212 g. Be a professional guardian as defined in s. 744.102(17) 213 and hold at least a master’s degree. 214 2. Complete all of the following: 215 a. Three years of post-licensure or post-certification 216 practice; 217 b. A family mediation training program certified by the 218 Florida Supreme Court; 219 c. An elder mediation training program that meets standards 220 approved and adopted by the Florida Supreme Court. If the 221 Florida Supreme Court has not yet adopted such standards, the 222 standards for elder mediation training approved and adopted by 223 the Association for Conflict Resolution apply; and 224 d. Eldercaring coordinator training. The training must 225 total at least 28 hours and must include eldercaring 226 coordination; elder, guardianship, and incapacity law and 227 procedures and less restrictive alternatives to guardianship as 228 it pertains to eldercaring coordination; at least 4 hours on the 229 implications of elder abuse, neglect, and exploitation and other 230 safety issues in eldercaring coordination; the elder’s role 231 within eldercaring coordination; family dynamics related to 232 eldercaring coordination; eldercaring coordination skills and 233 techniques; multicultural competence and its use in eldercaring 234 coordination; at least 2 hours of ethical considerations 235 pertaining to eldercaring coordination; use of technology within 236 eldercaring coordination; and court-specific eldercaring 237 coordination procedures. 238 3. Successfully pass a Level 2 background screening as 239 provided in s. 435.04(2) and (3) or be exempt from 240 disqualification under s. 435.07. 241 4. Have not been a respondent in a final order granting an 242 injunction for protection against domestic, dating, sexual, or 243 repeat violence or stalking or exploitation of an elder or a 244 disabled person. 245 5. Meet any additional qualifications the court may require 246 to address issues specific to the parties. 247 (b) A qualified eldercaring coordinator must be in good 248 standing or in clear and active status with all professional 249 licensing authorities or certification boards. 250 (6) DISQUALIFICATIONS AND REMOVAL OF ELDERCARING 251 COORDINATORS.— 252 (a) An eldercaring coordinator must resign and immediately 253 report to the court if he or she no longer meets the minimum 254 qualifications or if any of the disqualifying circumstances 255 occurs. 256 (b) The court shall remove an eldercaring coordinator upon 257 the eldercaring coordinator’s resignation or disqualification or 258 a finding of good cause shown based on the court’s own motion or 259 a party’s motion. 260 (c) Upon the court’s own motion or upon a party’s motion, 261 the court may suspend the authority of an eldercaring 262 coordinator pending a hearing on the motion for removal. Notice 263 of hearing on removal must be timely served on the eldercaring 264 coordinator and all parties. 265 (d) If a motion was made in bad faith, a court may, in 266 addition to any other remedy authorized by law, award reasonable 267 attorney fees and costs to a party or an eldercaring coordinator 268 who successfully challenges a motion for removal. 269 (7) SUCCESSOR ELDERCARING COORDINATOR.—If an eldercaring 270 coordinator resigns, is removed, or is suspended from an 271 appointment, the court shall appoint a successor qualified 272 eldercaring coordinator who is agreed to by all parties or, if 273 the parties do not reach agreement on a successor, another 274 qualified eldercaring coordinator to serve for the remainder of 275 the original term. 276 (8) FEES AND COSTS.—The court may not order the parties to 277 eldercaring coordination without their consent unless the court 278 determines that the parties have the financial ability to pay 279 the eldercaring coordination fees and costs. The court shall 280 determine the allocation among the parties of fees and costs for 281 eldercaring coordination and may make an unequal allocation 282 based on the financial circumstances of each party, including 283 the elder. 284 (a) A party who is asserting that he or she is unable to 285 pay the eldercaring coordination fees and costs must complete a 286 financial affidavit form approved by the presiding court. The 287 court shall consider the party’s financial circumstances, 288 including income; assets; liabilities; financial obligations; 289 and resources, including, but not limited to, whether the party 290 can receive or is receiving trust benefits, whether the party is 291 represented by and paying a lawyer, and whether paying the fees 292 and costs of eldercaring coordination would create a substantial 293 hardship. 294 (b) If a court finds that a party is indigent based upon 295 the criteria prescribed in s. 57.082, the court may not order 296 the party to eldercaring coordination unless funds are available 297 to pay the indigent party’s allocated portion of the eldercaring 298 coordination fees and costs, which may include funds provided 299 for that purpose by one or more nonindigent parties who consent 300 to paying such fees and costs, or unless insurance coverage or 301 reduced or pro bono services are available to pay all or a 302 portion of such fees and costs. If financial assistance, such as 303 health insurance or eldercaring coordination grants, is 304 available, such assistance must be taken into consideration by 305 the court in determining the financial abilities of the parties. 306 (9) CONFIDENTIALITY.— 307 (a) Except as otherwise provided in this section, all 308 communications made by, between, or among any parties, 309 participants, or eldercaring coordinator during eldercaring 310 coordination shall be kept confidential. 311 (b) The eldercaring coordinator, participants, and each 312 party designated in the order appointing the eldercaring 313 coordinator may not testify or otherwise offer evidence about 314 communications made by, between, or among the parties, 315 participants, and the eldercaring coordinator during eldercaring 316 coordination, unless one of the following applies: 317 1. Such communications are necessary to identify, 318 authenticate, confirm, or deny a written and signed agreement 319 entered into by the parties during eldercaring coordination. 320 2. Such communications are necessary to identify an issue 321 for resolution by the court without otherwise disclosing 322 communications made by any party or the eldercaring coordinator. 323 3. Such communications are limited to the subject of a 324 party’s compliance with the order of referral to eldercaring 325 coordination, orders for psychological evaluation, court orders 326 or health care provider recommendations for counseling, or court 327 orders for substance abuse testing or treatment. 328 4. The communications are necessary to determine the 329 qualifications of an eldercaring coordinator or to determine the 330 immunity and liability of an eldercaring coordinator who has 331 acted in bad faith or with malicious purpose or in a manner 332 exhibiting wanton and willful disregard for the rights, safety, 333 or property of the parties pursuant to subsection (11). 334 5. The parties agree that the communications be disclosed. 335 6. The communications are necessary to protect any person 336 from future acts that would constitute domestic violence under 337 chapter 741; child abuse, neglect, or abandonment under chapter 338 39; or abuse, neglect, or exploitation of an elderly or disabled 339 adult under chapter 415 or chapter 825, or are necessary in an 340 investigation conducted under s. 744.2004 or a review conducted 341 under s. 744.368(5). 342 7. The communications are offered to report, prove, or 343 disprove professional misconduct alleged to have occurred during 344 eldercaring coordination, solely for the internal use of the 345 body conducting the investigation of such misconduct. 346 8. The communications are offered to report, prove, or 347 disprove professional malpractice alleged to have occurred 348 during eldercaring coordination, solely for the professional 349 malpractice proceeding. 350 9. The communications were willfully used to plan a crime, 351 commit or attempt to commit a crime, conceal ongoing criminal 352 activity, or threaten violence. 353 (c) Notwithstanding paragraphs (a) and (b), confidentiality 354 or privilege does not attach to a signed written agreement 355 reached during eldercaring coordination, unless the parties 356 agree otherwise, or to any eldercaring coordination 357 communication: 358 1. For which the confidentiality or privilege against 359 disclosure has been waived by all parties; 360 2. That is willfully used to plan a crime, commit or 361 attempt to commit a crime, conceal ongoing criminal activity, or 362 threaten violence; or 363 3. That requires a mandatory report pursuant to chapter 39 364 or chapter 415 solely for the purpose of making the mandatory 365 report to the entity requiring the report. 366 (10) EMERGENCY REPORTING TO THE COURT.— 367 (a) An eldercaring coordinator must immediately inform the 368 court by affidavit or verified report, without notice to the 369 parties, if: 370 1. The eldercaring coordinator has or will be making a 371 report pursuant to chapter 39 or chapter 415; or 372 2. A party, including someone acting on a party’s behalf, 373 is threatening or is believed to be planning to commit the 374 offense of kidnapping upon an elder as defined in s. 787.01, or 375 wrongfully removes or is removing the elder from the 376 jurisdiction of the court without prior court approval or 377 compliance with the requirements of s. 744.1098. If the 378 eldercaring coordinator suspects that a party or family member 379 has relocated an elder within this state to protect the elder 380 from a domestic violence situation, the eldercaring coordinator 381 may not disclose the location of the elder unless required by 382 court order. 383 (b) An eldercaring coordinator shall immediately inform the 384 court by affidavit or verified report and serve a copy of such 385 affidavit or report on each party upon learning that a party is 386 the subject of a final order or injunction of protection against 387 domestic violence or exploitation of an elderly person or has 388 been arrested for an act of domestic violence or exploitation of 389 an elderly person. 390 (11) IMMUNITY AND LIMITATION ON LIABILITY.— 391 (a) A person who is appointed or employed to assist the 392 body designated to perform duties relating to disciplinary 393 proceedings involving eldercaring coordinators has absolute 394 immunity from liability arising from the performance of his or 395 her duties while acting within the scope of his or her appointed 396 functions or duties of employment. 397 (b) An eldercaring coordinator who is appointed by the 398 court is not liable for civil damages for any act or omission 399 within the scope of his or her duties under an order of referral 400 unless such person acted in bad faith or with malicious purpose 401 or in a manner exhibiting wanton and willful disregard for the 402 rights, safety, or property of the parties. 403 (12) MINIMUM STANDARDS AND PROCEDURES.—The Florida Supreme 404 Court shall establish minimum standards and procedures for the 405 qualification, ethical conduct, discipline, and training and 406 education of eldercaring coordinators who serve under this 407 section. The Florida Supreme Court may appoint or employ such 408 personnel as are necessary to assist the court in exercising its 409 powers and performing its duties under this section. 410 Section 2. This act shall take effect July 1, 2021.