Bill Amendment: FL S0496 | 2015 | Regular Session

NOTE: For additional amemendments please see the Bill Drafting List

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Bill Title: Guardians

Status: 2015-04-22 - Laid on Table, companion bill(s) passed, see CS/CS/HB 437 (Ch. 2015-112) [S0496 Detail]

Download: Florida-2015-S0496-Senate_Committee_Amendment_461482.html

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       Florida Senate - 2015                        COMMITTEE AMENDMENT
       Bill No. CS for SB 496
       
       
       
       
       
       
                                Ì461482,Î461482                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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       The Committee on Judiciary (Simmons) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 80 - 192
    4  and insert:
    5  pursuant to the requirements of chapter 744 that there is a good
    6  faith basis to believe that the child qualifies for appointment
    7  of a guardian advocate, limited guardian, or plenary guardian
    8  and that no less restrictive decisionmaking assistance will meet
    9  the child’s needs:
   10         a. The department shall complete a multidisciplinary report
   11  which must include, but is not limited to, a psychosocial
   12  evaluation and educational report if such a report has not been
   13  completed within the previous 2 years.
   14         b. The department shall identify one or more individuals
   15  who are willing to serve as the guardian advocate pursuant to s.
   16  393.12 or as the plenary or limited guardian pursuant to chapter
   17  744. Any other interested parties or participants may make
   18  efforts to identify such a guardian advocate, limited guardian,
   19  or plenary guardian. A child’s biological or adoptive family
   20  member, including the child’s parent if the parent’s rights have
   21  not been terminated, may not be considered for service as the
   22  plenary or limited guardian unless the court enters a written
   23  order finding that such an appointment is in the child’s best
   24  interests.
   25         c. Proceedings may be initiated within 6 months after the
   26  child’s 17th birthday for the appointment of a guardian
   27  advocate, plenary guardian, or limited guardian for the child in
   28  a separate proceeding in the division of the court with proper
   29  jurisdiction over guardianship matters and pursuant to chapter
   30  744. The Legislature encourages the use of pro bono
   31  representation to initiate proceedings under this section.
   32         3. In the event another interested party or participant
   33  initiates proceedings for the appointment of a guardian
   34  advocate, plenary guardian, or limited guardian for the child,
   35  the department shall provide all necessary documentation and
   36  information to the petitioner to complete a petition under
   37  chapter 393 or chapter 744 within 45 days after the first
   38  judicial review hearing after the child’s 17th birthday.
   39         4. Any proceedings seeking appointment of a guardian
   40  advocate or a determination of incapacity and the appointment of
   41  a guardian must be conducted in a separate proceeding in the
   42  division of the court with jurisdiction over guardianship
   43  matters and pursuant to chapter 744.
   44         (c) If the court finds at the judicial review hearing that
   45  the department has not met its obligations to the child as
   46  stated in this part, in the written case plan, or in the
   47  provision of independent living services, the court may issue an
   48  order directing the department to show cause as to why it has
   49  not done so. If the department cannot justify its noncompliance,
   50  the court may give the department 30 days within which to
   51  comply. If the department fails to comply within 30 days, the
   52  court may hold the department in contempt.
   53         Section 1. Paragraph (c) is added to subsection (2) of
   54  section 393.12, Florida Statutes, to read:
   55         393.12 Capacity; appointment of guardian advocate.—
   56         (2) APPOINTMENT OF A GUARDIAN ADVOCATE.—
   57         (c) If a petition is filed pursuant to this section
   58  requesting appointment of a guardian advocate for a minor who is
   59  the subject of any proceeding under chapter 39, the division of
   60  the court with jurisdiction over guardianship matters has
   61  jurisdiction over the proceedings pursuant to this section when
   62  the minor reaches the age of 17 years and 6 months or anytime
   63  thereafter. The minor shall be provided all the due process
   64  rights conferred upon an alleged developmentally disabled adult
   65  pursuant to this chapter. The order of appointment of a guardian
   66  advocate under this section shall issue upon the minor’s 18th
   67  birthday or as soon thereafter as possible. Any proceeding
   68  pursuant to this paragraph shall be conducted separately from
   69  any other proceeding.
   70         Section 2. Subsection (1) of section 744.301, Florida
   71  Statutes, is amended to read:
   72         744.301 Natural guardians.—
   73         (1) The parents jointly are the natural guardians of their
   74  own children and of their adopted children, during minority,
   75  unless the parents’ parental rights have been terminated
   76  pursuant to chapter 39. If a child is the subject of any
   77  proceeding under chapter 39, the parents may act as natural
   78  guardians under this section unless the dependency or probate
   79  court finds that it is not in the child’s best interests. If one
   80  parent dies, the surviving parent remains the sole natural
   81  guardian even if he or she remarries. If the marriage between
   82  the parents is dissolved, the natural guardianship belongs to
   83  the parent to whom sole parental responsibility has been
   84  granted, or if the parents have been granted shared parental
   85  responsibility, both continue as natural guardians. If the
   86  marriage is dissolved and neither parent is given parental
   87  responsibility for the child, neither may act as natural
   88  guardian of the child. The mother of a child born out of wedlock
   89  is the natural guardian of the child and is entitled to primary
   90  residential care and custody of the child unless the court
   91  enters an order stating otherwise.
   92         Section 3. Subsection (1) of section 744.3021, Florida
   93  Statutes, is amended, and subsection (4) is added to that
   94  section, to read:
   95         744.3021 Guardians of minors.—
   96         (1) Except as provided in subsection (4), upon petition of
   97  a parent, brother, sister, next of kin, or other person
   98  interested in the welfare of a minor, a guardian for a minor may
   99  be appointed by the court without the necessity of adjudication
  100  pursuant to s. 744.331. A guardian appointed for a minor,
  101  whether of the person or property, has the authority of a
  102  plenary guardian.
  103         (4) If a petition is filed pursuant to this section
  104  requesting appointment of a guardian for a minor who is the
  105  subject of any proceeding under chapter 39 and who is aged 17
  106  years and 6 months or older, the division of the court with
  107  jurisdiction over guardianship matters has jurisdiction over the
  108  proceedings under s. 744.331. The alleged incapacitated minor
  109  under this subsection shall be provided all the due process
  110  rights conferred upon an alleged incapacitated adult pursuant to
  111  this chapter and applicable court rules. The order of
  112  adjudication under s. 744.331 and the letters of limited or
  113  plenary guardianship may issue upon the minor’s 18th birthday or
  114  as soon thereafter as possible. Any proceeding pursuant to this
  115  subsection shall be conducted separately from any other
  116  proceeding.
  117  ================= T I T L E  A M E N D M E N T ================
  118  And the title is amended as follows:
  119         Delete lines 20 - 38
  120  and insert:
  121         proceeding in guardianship court; amending s. 393.12,
  122         F.S.; providing that the guardianship court has
  123         jurisdiction over proceedings for appointment of a
  124         guardian advocate if petitions are filed for certain
  125         minors who are subject to ch. 39, F.S., proceedings if
  126         such minors have attained a specified age; providing
  127         that such minor has the same due process rights as
  128         certain adults; providing requirements for when an
  129         order appointing a guardian advocate must be issued;
  130         providing that proceedings seeking appointment of a
  131         guardian advocate for certain minors be conducted in
  132         separate proceedings; amending s. 744.301, F.S.;
  133         providing that if a child is subject to proceedings
  134         under ch. 39, F.S., the parents may act as natural
  135         guardians unless the dependency or probate court finds
  136         that it is not in the child’s best interests or their
  137         parental rights have been terminated; amending s.
  138         744.3021, F.S.; requiring the guardianship court to
  139         initiate proceedings for appointment of guardians for
  140         certain minors who are subject to ch. 39, F.S.,
  141         proceedings if petitions are filed and if such minors
  142         have reached a specified age; providing that such
  143         minor has the same due process rights as certain
  144         adults; providing requirements for when an order of
  145         adjudication and letters of limited or plenary
  146         guardianship must be issued; providing that
  147         proceedings seeking appointment of a guardian advocate
  148         for certain minors be conducted in separate
  149         proceedings; providing an