Florida Senate - 2024                                      SB 48
       By Senator Garcia
       36-00216-24                                             202448__
    1                        A bill to be entitled                      
    2         An act relating to guardianship; providing a short
    3         title; amending s. 744.102, F.S.; defining the term
    4         “family”; amending s. 744.2006, F.S.; requiring that
    5         public guardians be appointed on a rotating basis;
    6         amending s. 744.3021, F.S.; requiring the court to
    7         establish visitation rights of a minor’s family;
    8         creating a rebuttable presumption; requiring certain
    9         evidence for the denial of visitation or other
   10         contact; authorizing the court to establish reasonable
   11         limitations on such visitation; requiring that any
   12         limitations on visitation or other contact be
   13         specified in the order of appointment; amending s.
   14         744.3203, F.S.; authorizing the suspension of a power
   15         of attorney under certain circumstances; requiring a
   16         jury to determine if a power of attorney should be
   17         suspended; amending s. 744.3215, F.S.; requiring a
   18         full reevaluation of the need for guardianship after a
   19         certain time; prohibiting certain judges from
   20         overseeing the reevaluation proceedings; amending s.
   21         744.331, F.S.; requiring the court to impanel a jury
   22         for a certain purpose; requiring the court to
   23         establish visitation rights of an alleged
   24         incapacitated person’s family; creating a rebuttable
   25         presumption; requiring certain evidence to deny
   26         visitation or other contact; authorizing the court to
   27         establish reasonable limitations on such visitation;
   28         requiring that any limitations on visitation or other
   29         contact be specified in the order determining
   30         incapacity; requiring a jury to make certain decisions
   31         under certain circumstances; authorizing the court to
   32         grant authority to certain persons even if a guardian
   33         is appointed; amending s. 744.334, F.S.; revising
   34         requirements for a petition for the appointment of a
   35         guardian; amending s. 744.361, F.S.; conforming
   36         provisions to changes made by the act; amending ss.
   37         744.365 and 744.3678, F.S.; requiring that the
   38         verified inventory and annual accounting be made
   39         available to certain persons; amending s. 744.372,
   40         F.S.; conforming provisions to changes made by the
   41         act; amending ss. 744.462 and 744.474, F.S.;
   42         conforming provisions to changes made by the act;
   43         amending ss. 44.407 and 744.2003, F.S.; conforming
   44         cross-references; providing an effective date.
   46  Be It Enacted by the Legislature of the State of Florida:
   48         Section 1. This act may be cited as “Karilyn’s Law.”
   49         Section 2. Present subsections (8) through (22) of section
   50  744.102, Florida Statutes, are redesignated as subsections (9)
   51  through (23), respectively, and a new subsection (8) is added to
   52  that section, to read:
   53         744.102 Definitions.—As used in this chapter, the term:
   54         (8)“Family” means a parent, sibling, child, spouse, or any
   55  other relative by blood, marriage, or adoption of the minor,
   56  ward, or alleged incapacitated person.
   57         Section 3. Subsection (2) of section 744.2006, Florida
   58  Statutes, is amended to read:
   59         744.2006 Office of Public and Professional Guardians;
   60  appointment, notification.—
   61         (2) The executive director shall appoint or contract with a
   62  public guardian from the list of candidates described in
   63  subsection (1). A public guardian must meet the qualifications
   64  for a guardian as prescribed in s. 744.309(1)(a). Public
   65  guardians for alleged incapacitated persons or minors must be
   66  appointed on a rotating basis by the executive director. Upon
   67  appointment of the public guardian, the executive director shall
   68  notify the chief judge of the judicial circuit and the Chief
   69  Justice of the Supreme Court of Florida, in writing, of the
   70  appointment.
   71         Section 4. Subsection (2) of section 744.3021, Florida
   72  Statutes, is amended to read:
   73         744.3021 Guardians of minors.—
   74         (2) A minor is not required to attend the hearing on the
   75  petition for appointment of a guardian, unless otherwise
   76  directed by the court. During the hearing on the petition for
   77  appointment of a guardian, the court shall establish the
   78  visitation rights of the minor’s family. There is a rebuttable
   79  presumption in favor of allowing visitation or other contact
   80  with the minor’s family. Visitation or other contact may only be
   81  denied upon a showing of clear and convincing evidence that
   82  visitation or other contact is not in the best interests of the
   83  minor. The court may establish reasonable limitations on the
   84  visitation rights of the minor’s family. The court shall include
   85  any such limitations in the order of appointment.
   86         Section 5. Subsections (1) and (3) of section 744.3203,
   87  Florida Statutes, are amended to read:
   88         744.3203 Suspension of power of attorney before incapacity
   89  determination.—
   90         (1) At any time during proceedings to determine incapacity
   91  but before the entry of an order determining incapacity, the
   92  authority granted under an alleged incapacitated person’s power
   93  of attorney to a parent, spouse, child, or grandchild is
   94  suspended only if when the petitioner files a motion stating
   95  that a specific power of attorney should be suspended for any of
   96  the following grounds:
   97         (a) The agent’s decisions are not in accord with the
   98  alleged incapacitated person’s known desires.
   99         (b) The power of attorney is invalid.
  100         (c) The agent has failed to discharge his or her duties or
  101  incapacity or illness renders the agent incapable of discharging
  102  duties.
  103         (d) The agent has abused powers.
  104         (e) There is a danger that the property of the alleged
  105  incapacitated person may be wasted, misappropriated, or lost
  106  unless the authority under the power of attorney is suspended.
  108  Grounds for suspending a power of attorney do not include the
  109  existence of a dispute between the agent and the petitioner
  110  which is more appropriate for resolution in some other forum or
  111  a legal proceeding other than a guardianship proceeding.
  112         (3) Upon the filing of a response to the motion by the
  113  agent under the power of attorney, the court shall impanel a
  114  jury to determine whether the petitioner met his or her burden
  115  to suspend a power of attorney and shall schedule the motion for
  116  an expedited hearing. Unless an emergency arises and the agent’s
  117  response sets forth the nature of the emergency, the property or
  118  matter involved, and the power to be exercised by the agent,
  119  notice must be given to all interested persons, the alleged
  120  incapacitated person, and the alleged incapacitated person’s
  121  attorney. Based on the jury’s determination, the court order
  122  following the hearing must set forth what powers the agent is
  123  permitted to exercise, if any, pending the outcome of the
  124  petition to determine incapacity.
  125         Section 6. Paragraph (b) of subsection (1) of section
  126  744.3215, Florida Statutes, is amended to read:
  127         744.3215 Rights of persons determined incapacitated.—
  128         (1) A person who has been determined to be incapacitated
  129  retains the right:
  130         (b) To have continuing review of the need for restriction
  131  of his or her rights and to have a full reevaluation every 3
  132  years of the need for guardianship, including an examination by
  133  an examining committee and an adjudicatory hearing as required
  134  under s. 744.331. The adjudicatory hearing may not be conducted
  135  by the same judge who conducted the initial adjudicatory
  136  hearing.
  137         Section 7. Paragraph (a) of subsection (5) and paragraphs
  138  (a) and (f) of subsection (6) of section 744.331, Florida
  139  Statutes, are amended, and paragraph (d) is added to subsection
  140  (5) of that section, to read:
  141         744.331 Procedures to determine incapacity.—
  142         (5) ADJUDICATORY HEARING.—
  143         (a) Upon appointment of the examining committee, the court
  144  shall set the date upon which the petition will be heard and, if
  145  necessary, impanel a jury to determine the validity of the
  146  alleged incapacitated person’s trust, trust amendment, power of
  147  attorney, or will. The adjudicatory hearing must be conducted at
  148  least 10 days, which time period may be waived, but no more than
  149  30 days, after the filing of the last filed report of the
  150  examining committee members, unless good cause is shown. The
  151  adjudicatory hearing must be conducted at the time and place
  152  specified in the notice of hearing and in a manner consistent
  153  with due process.
  154         (d)In the adjudicatory hearing on a petition alleging
  155  incapacity, the court shall establish the visitation rights of
  156  the family of the person alleged to be incapacitated. There is a
  157  rebuttable presumption in favor of allowing visitation or other
  158  contact with the family of the person alleged to be
  159  incapacitated. Visitation or other contact may only be denied
  160  upon a showing of clear and convincing evidence that visitation
  161  or other contact is not in the best interests of the person
  162  alleged to be incapacitated. The court may establish reasonable
  163  limitations on the visitation rights of the family of the person
  164  alleged to be incapacitated. The court must include any such
  165  limitations in the order determining incapacity.
  166         (6) ORDER DETERMINING INCAPACITY.—If, after making findings
  167  of fact on the basis of clear and convincing evidence, the court
  168  finds that a person is incapacitated with respect to the
  169  exercise of a particular right, or all rights, the court shall
  170  enter a written order determining such incapacity. In
  171  determining incapacity, the court shall consider the person’s
  172  unique needs and abilities and may only remove those rights that
  173  the court finds the person does not have the capacity to
  174  exercise. A person is determined to be incapacitated only with
  175  respect to those rights specified in the order.
  176         (a) The court shall make all of the following findings:
  177         1. The exact nature and scope of the person’s
  178  incapacities.;
  179         2. The exact areas in which the person lacks capacity to
  180  make informed decisions about care and treatment services or to
  181  meet the essential requirements for her or his physical or
  182  mental health or safety.;
  183         3. The specific legal disabilities to which the person is
  184  subject.; and
  185         4. The specific rights that the person is incapable of
  186  exercising.
  187         5.The limitations on the visitation rights of the person’s
  188  family, if any.
  189         (f) If Upon the filing of a verified statement by an
  190  interested person files a verified statement stating:
  191         1. that he or she has a good faith belief that the alleged
  192  incapacitated person’s trust, trust amendment, or durable power
  193  of attorney, or will is invalid; and provides
  194         2. a reasonable factual basis for that belief, the court
  195  must impanel a jury to consider the facts provided and determine
  196  whether the trust, trust amendment, or durable power of
  197  attorney, or will is a reasonable shall not be deemed to be an
  198  alternative to the appointment of a guardian. However, the
  199  appointment of a guardian does not limit the court’s power to
  200  determine that certain authority granted by a trust, trust
  201  amendment, durable power of attorney, or will is to remain
  202  exercisable by the agent.
  203         Section 8. Subsection (1) of section 744.334, Florida
  204  Statutes, is amended to read:
  205         744.334 Petition for appointment of guardian or
  206  professional guardian; contents.—
  207         (1) Every petition for the appointment of a guardian must
  208  shall be verified by the petitioner and shall contain all of the
  209  following information statements, to the best of petitioner’s
  210  knowledge and belief:, showing
  211         (a) The name, age, residence, and post office address of
  212  the alleged incapacitated person or minor.;
  213         (b) The nature of the her or his incapacity of the alleged
  214  incapacitated person, if any.;
  215         (c) The extent of guardianship desired, either plenary or
  216  limited.;
  217         (d) The residence and post office address of the
  218  petitioner.;
  219         (e) The names and addresses of the next of kin of the
  220  alleged incapacitated person or minor, if known to the
  221  petitioner.;
  222         (f) The name of the proposed guardian and the reasons why
  223  she or he should be appointed guardian.;
  224         (g) Whether the proposed guardian is a professional
  225  guardian.;
  226         (h) The relationship and previous relationship of the
  227  proposed guardian to the alleged incapacitated person or minor.;
  228         (i)Whether the alleged incapacitated person or minor has a
  229  valid trust, trust amendment, durable power of attorney, or
  230  will.
  231         (j) Any other type of guardianship under part III of this
  232  chapter or alternatives to guardianship that the alleged
  233  incapacitated person or minor has designated or is in currently
  234  or has been in previously.;
  235         (k) The reasons why a guardian advocate under s. 744.3085
  236  or other alternatives to guardianship, including a valid will
  237  executed as required in s. 732.502, are insufficient to meet the
  238  needs of the alleged incapacitated person or minor.; and
  239         (l) The nature and value of property subject to the
  240  guardianship. The petition must state whether a willing and
  241  qualified guardian cannot be located.
  243  As used in this subsection, the term “alternatives to
  244  guardianship” means an advance directive as defined in s.
  245  765.101, a durable power of attorney as provided in chapter 709,
  246  a representative payee under 42 U.S.C. s. 1007, or a trust
  247  instrument as defined in s. 736.0103.
  248         Section 9. Paragraph (b) of subsection (13) and paragraph
  249  (d) of subsection (14) of section 744.361, Florida Statutes, are
  250  amended to read:
  251         744.361 Powers and duties of guardian.—
  252         (13) Recognizing that every individual has unique needs and
  253  abilities, a guardian who is given authority over a ward’s
  254  person shall, as appropriate under the circumstances:
  255         (b) Allow the ward to maintain visitation or other contact
  256  with his or her family and friends unless a court has:
  257         1.Determined that such visitation or other contact is not
  258  in the best interests of the guardian believes that such contact
  259  may cause harm to the ward; or
  260         2.Placed reasonable limitations on such visitation or
  261  other contact in the order determining incapacity or, in the
  262  case of a minor, the order of appointment.
  263         (14) A professional guardian must ensure that each of the
  264  guardian’s wards is personally visited by the guardian or one of
  265  the guardian’s professional staff at least once each calendar
  266  quarter. During the personal visit, the guardian or the
  267  guardian’s professional staff person shall assess:
  268         (d) The nature and extent of visitation or other contact
  269  and communication with the ward’s family and friends.
  271  This subsection does not apply to a professional guardian who
  272  has been appointed only as guardian of the property.
  273         Section 10. Subsection (1) of section 744.365, Florida
  274  Statutes, is amended to read:
  275         744.365 Verified inventory.—
  276         (1) FILING.—A guardian of the property shall file a
  277  verified inventory of the ward’s property. The verified
  278  inventory must be made available to the ward’s family, the
  279  ward’s next of kin, and the beneficiaries and heirs of the
  280  ward’s valid will.
  281         Section 11. Subsection (1) of section 744.3678, Florida
  282  Statutes, is amended to read:
  283         744.3678 Annual accounting.—
  284         (1) Each guardian of the property must file an annual
  285  accounting with the court. The annual accounting must be made
  286  available to the ward’s family, ward’s next of kin, and the
  287  beneficiaries and heirs of the ward’s valid will.
  288         Section 12. Section 744.372, Florida Statutes, is amended
  289  to read:
  290         744.372 Judicial review of guardianships.—The court retains
  291  jurisdiction over all guardianships.
  292         (1) The court shall review the appropriateness and extent
  293  of a guardianship annually and:
  294         (a)(1)Whether If an objection to the terms of the
  295  guardianship report has been filed pursuant to s. 744.367;
  296         (b)(2)Whether an If interim review has been requested
  297  under s. 744.3715;
  298         (c)(3)Whether If a person, including the ward, has filed a
  299  suggestion of increased capacity; or
  300         (d)(4)Whether If the guardianship report has not been
  301  received and the guardian has failed to respond to a show cause
  302  order.
  303         (2)Every 3 years the court shall conduct a full
  304  reevaluation of the need for guardianship, including an
  305  examination by an examining committee and an adjudicatory
  306  hearing as required under s. 744.331. The adjudicatory hearing
  307  required under this subsection may not be conducted by the same
  308  judge who conducted the initial adjudicatory hearing.
  309         Section 13. Section 744.462, Florida Statutes, is amended
  310  to read:
  311         744.462 Determination regarding alternatives to
  312  guardianship.—Any judicial determination concerning the validity
  313  of the ward’s durable power of attorney, trust, or trust
  314  amendment, or will must shall be promptly reported in the
  315  guardianship proceeding by the guardian of the property. If the
  316  instrument has been judicially determined to be valid or if,
  317  after the appointment of a guardian, a petition is filed
  318  alleging that there is an alternative to guardianship which will
  319  sufficiently address the problems of the ward, the court must
  320  impanel a jury to shall review the continued need for a guardian
  321  and the extent of the need for delegation of the ward’s rights.
  322         Section 14. Subsection (20) of section 744.474, Florida
  323  Statutes, is amended to read:
  324         744.474 Reasons for removal of guardian.—A guardian may be
  325  removed for any of the following reasons, and the removal shall
  326  be in addition to any other penalties prescribed by law:
  327         (20) Upon a showing that removal of the current guardian is
  328  in the best interests interest of the ward. In determining
  329  whether a guardian who is a family member of related by blood or
  330  marriage to the ward is to be removed, there is shall be a
  331  rebuttable presumption that the guardian is acting in the best
  332  interests of the ward.
  333         Section 15. Paragraph (a) of subsection (5) of section
  334  44.407, Florida Statutes, is amended to read:
  335         44.407 Elder-focused dispute resolution process.—
  337         (a) The court shall appoint qualified eldercaring
  338  coordinators who:
  339         1. Meet one of the following professional requirements:
  340         a. Are licensed as a mental health professional under
  341  chapter 491 and hold at least a master’s degree in the
  342  professional field of practice;
  343         b. Are licensed as a psychologist under chapter 490;
  344         c. Are licensed as a physician under chapter 458 or chapter
  345  459;
  346         d. Are licensed as a nurse under chapter 464 and hold at
  347  least a master’s degree;
  348         e. Are certified by the Florida Supreme Court as a family
  349  mediator and hold at least a master’s degree;
  350         f. Are a member in good standing of The Florida Bar; or
  351         g. Are a professional guardian as defined in s. 744.102 s.
  352  744.102(17) and hold at least a master’s degree.
  353         2. Have completed all of the following:
  354         a. Three years of postlicensure or postcertification
  355  practice.;
  356         b. A family mediation training program certified by the
  357  Florida Supreme Court.; and
  358         c. An eldercaring coordinator training program certified by
  359  the Florida Supreme Court. The training must total at least 44
  360  hours and must include advanced tactics for dispute resolution
  361  of issues related to aging, illness, incapacity, or other
  362  vulnerabilities associated with elders, as well as elder,
  363  guardianship, and incapacity law and procedures and less
  364  restrictive alternatives to guardianship; phases of eldercaring
  365  coordination and the role and functions of an eldercaring
  366  coordinator; the elder’s role within eldercaring coordination;
  367  family dynamics related to eldercaring coordination; eldercaring
  368  coordination skills and techniques; multicultural competence and
  369  its use in eldercaring coordination; at least 6 hours of the
  370  implications of elder abuse, neglect, and exploitation and other
  371  safety issues pertinent to the training; at least 4 hours of
  372  ethical considerations pertaining to the training; use of
  373  technology within eldercaring coordination; and court-specific
  374  eldercaring coordination procedures. Pending certification of a
  375  training program by the Florida Supreme Court, the eldercaring
  376  coordinator must document completion of training that satisfies
  377  the hours and the elements prescribed in this sub-subparagraph.
  378         3. Have successfully passed a Level 2 background screening
  379  as provided in s. 435.04(2) and (3) or are exempt from
  380  disqualification under s. 435.07. The prospective eldercaring
  381  coordinator must submit a full set of fingerprints to the court
  382  or to a vendor, entity, or agency authorized by s. 943.053(13).
  383  The court, vendor, entity, or agency shall forward the
  384  fingerprints to the Department of Law Enforcement for state
  385  processing, and the Department of Law Enforcement shall forward
  386  the fingerprints to the Federal Bureau of Investigation for
  387  national processing. The prospective eldercaring coordinator
  388  shall pay the fees for state and federal fingerprint processing.
  389  The state cost for fingerprint processing shall be as provided
  390  in s. 943.053(3)(e) for records provided to persons or entities
  391  other than those specified as exceptions therein.
  392         4. Have not been a respondent in a final order granting an
  393  injunction for protection against domestic, dating, sexual, or
  394  repeat violence or stalking or exploitation of an elder or a
  395  disabled person.
  396         5. Have met any additional qualifications the court may
  397  require to address issues specific to the parties.
  398         Section 16. Subsection (3) of section 744.2003, Florida
  399  Statutes, is amended to read:
  400         744.2003 Regulation of professional guardians; application;
  401  bond required; educational requirements.—
  402         (3) Each professional guardian as defined in s. 744.102 s.
  403  744.102(17) and public guardian must receive a minimum of 40
  404  hours of instruction and training. Each professional guardian
  405  must receive a minimum of 30 hours of continuing education every
  406  2 calendar years after the year in which the initial 40-hour
  407  educational requirement is met. The required continuing
  408  education must include at least 2 hours on fiduciary
  409  responsibilities; 2 hours on professional ethics; 1 hour on
  410  advance directives; 3 hours on abuse, neglect, and exploitation;
  411  and 4 hours on guardianship law. The instruction and education
  412  must be completed through a course approved or offered by the
  413  Office of Public and Professional Guardians. The expenses
  414  incurred to satisfy the educational requirements prescribed in
  415  this section may not be paid with the assets of any ward. This
  416  subsection does not apply to any attorney licensed to practice
  417  law in this state or an institution acting as guardian under s.
  418  744.2002(7).
  419         Section 17. This act shall take effect July 1, 2024.