Bill Amendment: FL S0318 | 2015 | Regular Session

NOTE: For additional amemendments please see the Bill Drafting List

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Bill Title: Guardianship Proceedings

Status: 2015-04-27 - Laid on Table, companion bill(s) passed, see CS/CS/CS/HB 5 (Ch. 2015-83), CS/HB 7 (Ch. 2015-84) [S0318 Detail]

Download: Florida-2015-S0318-Senate_Floor_Amendment_745042.html

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       Florida Senate - 2015                          SENATOR AMENDMENT
       Bill No. CS for CS for SB 318
       
       
       
       
       
       
                                Ì745042zÎ745042                         
       
                              LEGISLATIVE ACTION                        
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       Senator Lee moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 98 - 366
    4  and insert:
    5         (b) A financial institution that has trust powers, has a
    6  place of business in this state, and authorization is authorized
    7  to conduct trust business in this state.
    8         (c) A not-for-profit corporation that complies with the
    9  requirements of subparagraphs 1.-7.
   10         1. The not-for-profit corporation must be qualified to do
   11  business in the state; must be organized for charitable or
   12  religious purposes in this state; must have served as a court
   13  appointed guardian before January 1, 1996; must be tax-exempt
   14  under s. 501(c)(3) of the Internal Revenue Code; may not charge
   15  a fee or cost to a principal for services but may be reimbursed
   16  for actual expenses; and must serve only principals who reside
   17  in communities that provide housing for older persons as defined
   18  in s. 760.29(4) and former residents of such communities.
   19         2. The not-for-profit corporation must have each principal
   20  who signs a power of attorney on or after July 1, 2015 sign a
   21  separate written instrument containing the following language in
   22  14-point uppercase type:
   23  
   24         I UNDERSTAND THAT THE AGENT IS A NOT-FOR-PROFIT
   25         CORPORATION THAT IS NOT CHARGING A FEE FOR SERVICES TO
   26         ME (BUT MAY BE REIMBURSED FOR ACTUAL EXPENSES) AND
   27         THAT THE INDIVIDUALS THAT WILL PROVIDE ME SERVICES ARE
   28         VOLUNTEERS WHO MAY NOT HAVE A STATE LICENSE OR
   29         CERTIFICATION.
   30  
   31         I UNDERSTAND THAT THE ASSETS OF THE NOT-FOR-PROFIT
   32         CORPORATION MAY NOT BE SUFFICIENT TO COVER LIABILITY
   33         ARISING FROM AN ERROR, AN OMISSION, OR ANY INTENTIONAL
   34         MISCONDUCT COMMITTED BY A DIRECTOR, OFFICER, EMPLOYEE,
   35         VOLUNTEER OR AGENT OF THE CORPORATION.
   36  
   37         3. The not-for-profit corporation must allow the clerk of
   38  the circuit court for the circuit in which the corporation
   39  maintains its primary place of business to, at any time, audit
   40  the books and records of the corporation upon request.
   41         4. No person shall act on behalf of the not-for-profit
   42  corporation in its role as an agent who:
   43         a. Has been convicted of a felony; who, from any incapacity
   44  or illness, is incapable of discharging the duties of an agent;
   45  or who is otherwise unsuitable to perform the duties of an
   46  agent.
   47         b. Has been arrested for and is awaiting final disposition
   48  of, has been found guilty of, regardless of adjudication, or has
   49  entered a plea of nolo contendere or guilty to, any offense
   50  involving dishonesty or listed at s. 435.04(2), or similar law
   51  of another jurisdiction.
   52         c. Has been adjudicated bankrupt in the previous 10 years.
   53         d. Provides substantial services to the principal in a
   54  professional or business capacity, or is a creditor of the
   55  principal, and retains that previous professional or business
   56  relationship.
   57         e. Is in the employ of any person, agency, government, or
   58  corporation that provides service to the principal in a
   59  professional or business capacity unless such person so employed
   60  is the spouse, adult child, parent, or sibling of the principal
   61  or a court determines that the potential conflict of interest is
   62  insubstantial and the ability of such person to act on behalf of
   63  the not-for-profit corporation in its role as agent would
   64  clearly be in the principal’s best interest.
   65         5. The not-for-profit corporation shall require all
   66  directors, officers, and employees of the not-for-profit
   67  corporation, and any person that acts on behalf of the not-for
   68  profit corporation in its role as an agent, to submit, at their
   69  own expense or at the expense of the corporation, but never at
   70  the cost of any principal, to a credit history background check
   71  prior to acting as an agent. A credit history background check
   72  shall be completed again at least once every 2 years after the
   73  initial check. The corporation shall maintain a file on each
   74  director, officer, and employee, and any person that acts on
   75  behalf of the not-for-profit corporation in its role as an
   76  agent, and retain in the file documentation of the result of any
   77  credit history background check conducted under this
   78  subparagraph. The clerk of court may audit such credit history
   79  background files.
   80         6. The not-for-profit corporation shall require all
   81  directors, officers, and employees of the not-for-profit
   82  corporation, and any person that acts on behalf of the not-for
   83  profit corporation in its role as an agent, to submit, at their
   84  own expense or at the expense of the corporation, but never at
   85  the cost of any principal, to a criminal history background
   86  check prior to acting as an agent. The corporation shall
   87  maintain a file on each director, officer, and employee, and any
   88  person that acts on behalf of the not-for-profit corporation in
   89  its role as an agent, and retain in the file documentation of
   90  the result of any criminal history background check conducted
   91  under this subparagraph. The corporation must allow a principal
   92  to review the criminal history background check as to any person
   93  acting on behalf of such principal. The clerk of court may audit
   94  such criminal history background files.
   95         7. The not-for-profit corporation must keep on file in the
   96  community in which the corporation is acting an updated listing
   97  of each person who is authorized to act on behalf of the
   98  corporation as an agent, along with a copy of the background
   99  check requirements. Any principal may request a copy of the list
  100  of authorized persons.
  101         8. Any person that acts on behalf of a not-for-profit
  102  corporation pursuant to this paragraph in its role as an agent
  103  under a power of attorney has a fiduciary responsibility to the
  104  principal and must comply with all provisions of this chapter.
  105         9. In addition to any other penalty provided by law, any
  106  person acting on behalf of a not-for-profit corporation in its
  107  role as an agent pursuant to this paragraph is subject to the
  108  provisions of s. 825.103.
  109         (2) A power of attorney must be signed by the principal and
  110  by two subscribing witnesses and be acknowledged by the
  111  principal before a notary public or as otherwise provided in s.
  112  695.03.
  113         (3) If the principal is physically unable to sign the power
  114  of attorney, the notary public before whom the principal’s oath
  115  or acknowledgment is made may sign the principal’s name on the
  116  power of attorney pursuant to s. 117.05(14).
  117         Section 2. Subsection (3) of section 709.2109, Florida
  118  Statutes, is amended to read:
  119         709.2109 Termination or suspension of power of attorney or
  120  agent’s authority.—
  121         (3) If any person initiates judicial proceedings to
  122  determine the principal’s incapacity or for the appointment of a
  123  guardian advocate, the authority granted under the power of
  124  attorney is suspended until the petition is dismissed or
  125  withdrawn or the court enters an order authorizing the agent to
  126  exercise one or more powers granted under the power of attorney.
  127  However, if the agent named in the power of attorney is the
  128  principal’s parent, spouse, child, or grandchild, the authority
  129  under the power of attorney is not suspended unless a verified
  130  motion in accordance with s. 744.3203 is also filed.
  131         (a) If an emergency arises after initiation of proceedings
  132  to determine incapacity and before adjudication regarding the
  133  principal’s capacity, the agent may petition the court in which
  134  the proceeding is pending for authorization to exercise a power
  135  granted under the power of attorney. The petition must set forth
  136  the nature of the emergency, the property or matter involved,
  137  and the power to be exercised by the agent.
  138         (b) Notwithstanding the provisions of this section, unless
  139  otherwise ordered by the court, a proceeding to determine
  140  incapacity does not affect the authority of the agent to make
  141  health care decisions for the principal, including, but not
  142  limited to, those provided in chapter 765. If the principal has
  143  executed a health care advance directive designating a health
  144  care surrogate, the terms of the directive control if the
  145  directive and the power of attorney are in conflict unless the
  146  power of attorney is later executed and expressly states
  147  otherwise.
  148         Section 3. Subsection (5) is added to section 744.107,
  149  Florida Statutes, to read:
  150         744.107 Court monitors.—
  151         (5) The court may appoint the office of criminal conflict
  152  and civil regional counsel as monitor if the ward is indigent.
  153         Section 4. Subsection (6) is added to section 744.1075,
  154  Florida Statutes, to read:
  155         744.1075 Emergency court monitor.—
  156         (6) The court may appoint the office of criminal conflict
  157  and civil regional counsel as monitor if the ward is indigent.
  158         Section 5. Subsections (5) and (8) of section 744.108,
  159  Florida Statutes, are amended, and subsection (9) is added to
  160  that section, to read:
  161         744.108 Guardian Guardian’s and attorney attorney’s fees
  162  and expenses.—
  163         (5) All petitions for guardian guardian’s and attorney
  164  attorney’s fees and expenses must be accompanied by an itemized
  165  description of the services performed for the fees and expenses
  166  sought to be recovered.
  167         (8) When court proceedings are instituted to review or
  168  determine a guardian guardian’s or an attorney attorney’s fees
  169  under subsection (2), such proceedings are part of the
  170  guardianship administration process and the costs, including
  171  costs and attorney fees for the guardian’s attorney, an attorney
  172  appointed under s. 744.331(2), or an attorney who has rendered
  173  services to the ward, shall be determined by the court and paid
  174  from the assets of the guardianship estate unless the court
  175  finds the requested compensation under subsection (2) to be
  176  substantially unreasonable.
  177         (9) The court may determine that a request for compensation
  178  by the guardian, the guardian’s attorney, a person employed by
  179  the guardian, an attorney appointed under s. 744.331(2), or an
  180  attorney who has rendered services to the ward is reasonable
  181  without receiving expert testimony. A person or party may offer
  182  expert testimony for or against a request for compensation after
  183  giving notice to interested persons. Reasonable expert witness
  184  fees shall be awarded by the court and paid from the assets of
  185  the guardianship estate using the standards in subsection (8).
  186         Section 6. Section 744.3025, Florida Statutes, is amended
  187  to read:
  188         744.3025 Claims of minors.—
  189         (1)(a) The court may appoint a guardian ad litem to
  190  represent the minor’s interest before approving a settlement of
  191  the minor’s portion of the claim in a any case in which a minor
  192  has a claim for personal injury, property damage, wrongful
  193  death, or other cause of action in which the gross settlement of
  194  the claim exceeds $15,000 if the court believes a guardian ad
  195  litem is necessary to protect the minor’s interest.
  196         (b) Except as provided in paragraph (e), the court shall
  197  appoint a guardian ad litem to represent the minor’s interest
  198  before approving a settlement of the minor’s claim in a any case
  199  in which the gross settlement involving a minor equals or
  200  exceeds $50,000.
  201         (c) The appointment of the guardian ad litem must be
  202  without the necessity of bond or notice.
  203         (d) The duty of the guardian ad litem is to protect the
  204  minor’s interests as described in the Florida Probate Rules.
  205         (e) A court need not appoint a guardian ad litem for the
  206  minor if a guardian of the minor has previously been appointed
  207  and that guardian has no potential adverse interest to the
  208  minor. A court may appoint a guardian ad litem if the court
  209  believes a guardian ad litem is necessary to protect the
  210  interests of the minor.
  211         (2) Unless waived, the court shall award reasonable fees
  212  and costs to the guardian ad litem to be paid out of the gross
  213  proceeds of the settlement.
  214         (3) A settlement of a claim pursuant to this section is
  215  subject to the confidentiality provisions of this chapter.
  216         Section 7. Subsections (2) through (8) of section 744.3031,
  217  Florida Statutes, are renumbered as subsections (3) through (9),
  218  respectively, a new subsection (2) is added to that section, and
  219  present subsection (8) of that section is amended, to read:
  220         744.3031 Emergency temporary guardianship.—
  221         (2) Notice of filing of the petition for appointment of an
  222  emergency temporary guardian and a hearing on the petition must
  223  be served on the alleged incapacitated person and on the alleged
  224  incapacitated person’s attorney at least 24 hours before the
  225  hearing on the petition is commenced, unless the petitioner
  226  demonstrates that substantial harm to the alleged incapacitated
  227  person would occur if the 24-hour notice is given.
  228         (9)(8)(a) An emergency temporary guardian shall file a
  229  final report no later than 30 days after the expiration of the
  230  emergency temporary guardianship.
  231         (b) A court may not authorize any final payment of the
  232  emergency temporary guardian fees or the fees of his or her
  233  attorney until the final report is filed.
  234         (c)(b) If an emergency temporary guardian is a guardian for
  235  the property, the final report must consist of a verified
  236  inventory of the property, as provided in s. 744.365, as of the
  237  date the letters of emergency temporary guardianship were
  238  issued, a final accounting that gives a full and correct account
  239  of the receipts and disbursements of all the property of the
  240  ward over which the guardian had control, and a statement of the
  241  property of the ward on hand at the end of the emergency
  242  temporary guardianship. If the emergency temporary guardian
  243  becomes the successor guardian of the property, the final report
  244  must satisfy the requirements of the initial guardianship report
  245  for the guardian of the property as provided in s. 744.362.
  246         (d)(c) If the emergency temporary guardian is a guardian of
  247  the person, the final report must summarize the activities of
  248  the temporary guardian with regard to residential placement,
  249  medical condition, mental health and rehabilitative services,
  250  and the social condition of the ward to the extent of the
  251  authority granted to the temporary guardian in the letters of
  252  guardianship. If the emergency temporary guardian becomes the
  253  successor guardian of the person, the report must satisfy the
  254  requirements of the initial report for a guardian of the person
  255  as stated in s. 744.362.
  256         (e)(d) A copy of the final report of the emergency
  257  temporary guardianship shall be served on the successor guardian
  258  and the ward.
  259  
  260  ================= T I T L E  A M E N D M E N T ================
  261  And the title is amended as follows:
  262         Delete lines 6 - 43
  263  and insert:
  264         criteria for such corporations; providing that a
  265         person acting on behalf of the corporation in its role
  266         as an agent under a power of attorney has a fiduciary
  267         responsibility to the principal; amending s. 709.2109,
  268         F.S.; requiring the filing of a motion before
  269         suspension of a power of attorney in proceedings to
  270         determine a principal’s incapacity or for appointment
  271         of a guardian advocate under certain circumstances;
  272         amending ss. 744.107 and 744.1075, F.S.; authorizing a
  273         court to appoint the office of criminal conflict and
  274         civil regional counsel as a court monitor in
  275         guardianship proceedings; amending s. 744.108, F.S.;
  276         providing that fees and costs incurred by an attorney
  277         appointed by a court or an attorney who has rendered
  278         services to a ward in compensation proceedings are
  279         payable from guardianship assets; providing that
  280         expert testimony is not required in proceedings to
  281         determine compensation for an attorney, a guardian, or
  282         a person employed by a guardian; requiring a person
  283         offering expert testimony to provide notice to
  284         interested persons; providing that reasonable expert
  285         witness fees are recoverable; amending s. 744.3025,
  286         F.S.; providing that a court may appoint a guardian ad
  287         litem to represent a minor if necessary to protect the
  288         minor’s interest in a settlement; providing that a
  289         settlement of a minor’s claim is subject to certain
  290         confidentiality provisions; amending s. 744.3031,
  291         F.S.; requiring notice to an alleged incapacitated
  292         person and such person’s attorney of a petition for
  293         appointment of an emergency temporary guardian before
  294         a hearing on the petition commences; providing an
  295         exception; prohibiting the final payment of the
  296         emergency temporary guardian fees and his or her
  297         attorney fees until the final report is filed;
  298         amending s.