Bill Text: FL S0048 | 2024 | Regular Session | Introduced
Bill Title: Guardianship
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2024-03-08 - Died in Judiciary [S0048 Detail]
Download: Florida-2024-S0048-Introduced.html
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. 45 46 Be It Enacted by the Legislature of the State of Florida: 47 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 ifwhenthe 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. 107 108 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.; and185 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) IfUpon the filing of a verified statement byan 190 interested person files a verified statement stating:1911.that he or she has a good faith belief that the alleged 192 incapacitated person’s trust, trust amendment,ordurable power 193 of attorney, or will is invalid;and provides 1942.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,ordurable power of 197 attorney, or will is a reasonableshall not be deemed to be an198 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 208shallbe verified by the petitioner andshallcontain all of the 209 following informationstatements, to the best of petitioner’s 210 knowledge and belief:, showing211 (a) The name, age, residence, and post office address of 212 the alleged incapacitated person or minor.;213 (b) The nature of theher or hisincapacity 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.; and239 (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. 242 243 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 theguardian believes that such contact259may cause harm to theward; 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 269and communicationwith the ward’s family and friends. 270 271 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)WhetherIfan objection to the terms of the 295 guardianship report has been filed pursuant to s. 744.367; 296 (b)(2)Whether anIfinterim review has been requested 297 under s. 744.3715; 298 (c)(3)WhetherIfa person, including the ward, has filed a 299 suggestion of increased capacity; or 300 (d)(4)WhetherIfthe 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,ortrust 314 amendment, or will mustshallbe 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 toshallreview 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 interestsinterestof the ward. In determining 329 whether a guardian who is a family member ofrelated by blood or330marriage tothe ward is to be removed, there isshall bea 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.— 336 (5) QUALIFICATIONS FOR ELDERCARING COORDINATORS.— 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. 744.102s.352744.102(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.; and358 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. 744.102s.403744.102(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.