Bill Text: FL S0318 | 2015 | Regular Session | Comm Sub
Bill Title: Guardianship Proceedings
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 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-Comm_Sub.html
Florida Senate - 2015 CS for CS for SB 318
By the Committees on Appropriations; and Judiciary; and Senators
Diaz de la Portilla and Detert
576-04508-15 2015318c2
1 A bill to be entitled
2 An act relating to guardianship proceedings; amending
3 s. 709.2105, F.S.; revising the qualifications of an
4 agent in the execution of power of attorney to include
5 certain not-for-profit corporations; providing
6 criteria for such corporations; amending s. 709.2109,
7 F.S.; requiring the filing of a motion before
8 suspension of a power of attorney in proceedings to
9 determine a principal’s incapacity or for appointment
10 of a guardian advocate under certain circumstances;
11 amending ss. 744.107 and 744.1075, F.S.; authorizing a
12 court to appoint the office of criminal conflict and
13 civil regional counsel as a court monitor in
14 guardianship proceedings; amending s. 744.108, F.S.;
15 providing that fees and costs incurred by an attorney
16 appointed by a court or an attorney who has rendered
17 services to a ward in compensation proceedings are
18 payable from guardianship assets; providing that
19 expert testimony is not required in proceedings to
20 determine compensation for an attorney, a guardian, or
21 a person employed by a guardian; requiring a person
22 offering expert testimony to provide notice to
23 interested persons; providing that reasonable expert
24 witness fees are recoverable; amending s. 744.3025,
25 F.S.; providing that a court may appoint a guardian ad
26 litem to represent a minor if necessary to protect the
27 minor’s interest in a settlement; providing that a
28 settlement of a minor’s claim is subject to certain
29 confidentiality provisions; amending s. 744.3031,
30 F.S.; requiring notice to an alleged incapacitated
31 person and such person’s attorney of a petition for
32 appointment of an emergency temporary guardian before
33 a hearing on the petition commences; providing an
34 exception; prohibiting the final payment of the
35 emergency temporary guardian fees and his or her
36 attorney fees until the final report is filed;
37 amending s. 744.309, F.S.; providing that a for-profit
38 corporation may act as guardian of a person under
39 certain circumstances; providing conditions; requiring
40 the posting and maintenance of a fiduciary bond;
41 limiting liability; requiring the corporation to
42 maintain certain insurance coverage; providing for
43 certain grandfathered guardianships; amending s.
44 744.3115, F.S.; directing the court to specify
45 authority for health care decisions with respect to a
46 ward’s advance directive; amending s. 744.312, F.S.;
47 requiring a court to consider the wishes of the ward’s
48 relatives when appointing a guardian; prohibiting a
49 court from giving preference to the appointment of
50 certain persons as guardians; providing requirements
51 for the appointment of professional guardians;
52 amending s. 744.3203, F.S.; providing grounds for
53 filing a motion for suspension of a power of attorney
54 before determination of incapacity; providing criteria
55 for such motion; requiring a hearing under certain
56 conditions; providing for the award of attorney fees
57 and costs; amending s. 744.331, F.S.; directing the
58 court to consider certain factors when determining
59 incapacity; requiring that the examining committee be
60 paid from state funds as court-appointed expert
61 witnesses if a petition for incapacity is dismissed or
62 denied; requiring that a petitioner reimburse the
63 state for such expert witness fees if the court finds
64 the petition to have been filed in bad faith; amending
65 s. 744.344, F.S.; revising conditions under which the
66 court is authorized to appoint an emergency temporary
67 guardian; amending s. 744.345, F.S.; revising
68 provisions relating to letters of guardianship;
69 creating s. 744.359, F.S.; prohibiting abuse, neglect,
70 or exploitation of a ward by a guardian; requiring
71 reporting thereof to the Department of Children and
72 Families central abuse hotline; providing for
73 interpretation; amending s. 744.361, F.S.; providing
74 additional powers and duties of a guardian; amending
75 s. 744.367, F.S.; revising the period during which a
76 guardian must file an annual guardianship plan with
77 the court; amending s. 744.369, F.S.; providing for
78 the continuance of a guardian’s authority to act under
79 an expired annual report under certain circumstances;
80 amending s. 744.3715, F.S.; providing that an
81 interested party may petition the court regarding a
82 guardian’s failure to comply with the duties of a
83 guardian; amending s. 744.464, F.S.; establishing the
84 burden of proof for determining restoration of
85 capacity of a ward in pending guardianship cases;
86 requiring a court to advance such cases on the
87 calendar; providing applicability; providing an
88 effective date.
89
90 Be It Enacted by the Legislature of the State of Florida:
91
92 Section 1. Section 709.2105, Florida Statutes, is amended
93 to read:
94 709.2105 Qualifications of agent; execution of power of
95 attorney.—
96 (1) The agent must be one of the following:
97 (a) A natural person who is 18 years of age or older. or
98 (b) A financial institution that has trust powers and, has
99 a place of business in this state, and is authorized to conduct
100 trust business in this state.
101 (c) A not-for-profit corporation that:
102 1. Is organized for charitable or religious purposes in
103 this state;
104 2. Was qualified as a court-appointed guardian before
105 January 1, 1996; and
106 3. Is a tax-exempt organization under s. 501(c)(3) of the
107 Internal Revenue Code. However, this subparagraph applies only
108 to a corporation that acts through an individual listed in the
109 records of the Division of Corporations of the Department of
110 State as a current officer of the corporation and only upon the
111 occurrence of any of the following events:
112 a. Posting and maintenance by the corporation of a blanket
113 fiduciary bond of at least $250,000 with the clerk of the
114 circuit court in the county in which the corporation’s primary
115 place of business is located. The corporation shall provide
116 proof of the fiduciary bond to the clerk of each additional
117 circuit court in which the corporation is serving as agent for a
118 resident of that circuit. The bond must cover all principals for
119 whom the corporation has been appointed as an agent at any given
120 time. The liability of the provider of the bond is limited to
121 the face value of the bond, regardless of the number of
122 principals for whom the corporation is acting as an agent. The
123 terms of the bond must cover the acts or omissions of each agent
124 or employee of the corporation who has direct contact with the
125 principal or access to the principal’s assets. The bond must be
126 payable to the Governor and his or her successors in office and
127 be conditioned on the faithful performance of all duties of an
128 agent under this chapter.
129 b. Maintenance by the corporation of a liability insurance
130 policy that covers any losses sustained by the principal caused
131 by errors, omissions, or any intentional misconduct committed by
132 the corporation’s officers or agents. The policy must cover all
133 principals for whom the corporation is acting as an agent for
134 losses up to $250,000. The terms of the policy must cover acts
135 or omissions of each agent or employee of the corporation who
136 has direct contact with the principal or access to the
137 principal’s assets.
138 c. Signing by the principal of a separate written
139 instrument containing the following language in 14-point
140 uppercase type:
141
142 I HAVE BEEN ADVISED THAT OFFICERS OF THE NOT-FOR-PROFIT
143 CORPORATION HAVE DECLINED TO AGREE TO BE JOINTLY AND SEVERALLY
144 LIABLE WITH THE NOT-FOR-PROFIT CORPORATION FOR ACTS OR OMISSIONS
145 OCCURRING IN THE EXERCISE OF THE POWER OF ATTORNEY EXECUTED
146 UNDER CHAPTER 709, FLORIDA STATUTES.
147
148 I HAVE ALSO BEEN ADVISED THAT THE NOT-FOR-PROFIT CORPORATION
149 THAT I HAVE NAMED AS MY AGENT UNDER MY POWER OF ATTORNEY HAS
150 ELECTED NOT TO POST AND MAINTAIN A FIDUCIARY BOND OR MAINTAIN
151 INSURANCE IN ACCORDANCE WITH SECTION 709.2105(1)(c), FLORIDA
152 STATUTES.
153
154 I UNDERSTAND THAT THE ASSETS OF THE NOT-FOR-PROFIT CORPORATION
155 MAY NOT BE SUFFICIENT TO COVER LIABILITY ARISING FROM AN ERROR,
156 AN OMISSION, OR ANY INTENTIONAL MISCONDUCT COMMITTED BY AN
157 EMPLOYEE OR AGENT OF THE CORPORATION.
158
159 d. Designation of the corporation by a principal as an
160 agent under a power of attorney and the corporation acts as an
161 agent for the principal. However, each officer of the
162 corporation is jointly and severally liable with the corporation
163 for acts and omissions under the power of attorney and this
164 chapter which occur when there is no fiduciary bond as provided
165 in sub-subparagraph a., liability insurance as provided in sub
166 subparagraph b., or signed acknowledgement as provided in sub
167 subparagraph c.
168 (2) A power of attorney must be signed by the principal and
169 by two subscribing witnesses and be acknowledged by the
170 principal before a notary public or as otherwise provided in s.
171 695.03.
172 (3) If the principal is physically unable to sign the power
173 of attorney, the notary public before whom the principal’s oath
174 or acknowledgment is made may sign the principal’s name on the
175 power of attorney pursuant to s. 117.05(14).
176 Section 2. Subsection (3) of section 709.2109, Florida
177 Statutes, is amended to read:
178 709.2109 Termination or suspension of power of attorney or
179 agent’s authority.—
180 (3) If any person initiates judicial proceedings to
181 determine the principal’s incapacity or for the appointment of a
182 guardian advocate, the authority granted under the power of
183 attorney is suspended until the petition is dismissed or
184 withdrawn or the court enters an order authorizing the agent to
185 exercise one or more powers granted under the power of attorney.
186 However, if the agent named in the power of attorney is the
187 principal’s parent, spouse, child, or grandchild, the authority
188 under the power of attorney is not suspended unless a verified
189 motion in accordance with s. 744.3203 is also filed.
190 (a) If an emergency arises after initiation of proceedings
191 to determine incapacity and before adjudication regarding the
192 principal’s capacity, the agent may petition the court in which
193 the proceeding is pending for authorization to exercise a power
194 granted under the power of attorney. The petition must set forth
195 the nature of the emergency, the property or matter involved,
196 and the power to be exercised by the agent.
197 (b) Notwithstanding the provisions of this section, unless
198 otherwise ordered by the court, a proceeding to determine
199 incapacity does not affect the authority of the agent to make
200 health care decisions for the principal, including, but not
201 limited to, those provided in chapter 765. If the principal has
202 executed a health care advance directive designating a health
203 care surrogate, the terms of the directive control if the
204 directive and the power of attorney are in conflict unless the
205 power of attorney is later executed and expressly states
206 otherwise.
207 Section 3. Subsection (5) is added to section 744.107,
208 Florida Statutes, to read:
209 744.107 Court monitors.—
210 (5) The court may appoint the office of criminal conflict
211 and civil regional counsel as monitor if the ward is indigent.
212 Section 4. Subsection (6) is added to section 744.1075,
213 Florida Statutes, to read:
214 744.1075 Emergency court monitor.—
215 (6) The court may appoint the office of criminal conflict
216 and civil regional counsel as monitor if the ward is indigent.
217 Section 5. Subsections (5) and (8) of section 744.108,
218 Florida Statutes, are amended, and subsection (9) is added to
219 that section, to read:
220 744.108 Guardian Guardian’s and attorney attorney’s fees
221 and expenses.—
222 (5) All petitions for guardian guardian’s and attorney
223 attorney’s fees and expenses must be accompanied by an itemized
224 description of the services performed for the fees and expenses
225 sought to be recovered.
226 (8) When court proceedings are instituted to review or
227 determine a guardian guardian’s or an attorney attorney’s fees
228 under subsection (2), such proceedings are part of the
229 guardianship administration process and the costs, including
230 costs and attorney fees for the guardian’s attorney, an attorney
231 appointed under s. 744.331(2), or an attorney who has rendered
232 services to the ward, shall be determined by the court and paid
233 from the assets of the guardianship estate unless the court
234 finds the requested compensation under subsection (2) to be
235 substantially unreasonable.
236 (9) The court may determine that a request for compensation
237 by the guardian, the guardian’s attorney, a person employed by
238 the guardian, an attorney appointed under s. 744.331(2), or an
239 attorney who has rendered services to the ward is reasonable
240 without receiving expert testimony. A person or party may offer
241 expert testimony for or against a request for compensation after
242 giving notice to interested persons. Reasonable expert witness
243 fees shall be awarded by the court and paid from the assets of
244 the guardianship estate using the standards in subsection (8).
245 Section 6. Section 744.3025, Florida Statutes, is amended
246 to read:
247 744.3025 Claims of minors.—
248 (1)(a) The court may appoint a guardian ad litem to
249 represent the minor’s interest before approving a settlement of
250 the minor’s portion of the claim in a any case in which a minor
251 has a claim for personal injury, property damage, wrongful
252 death, or other cause of action in which the gross settlement of
253 the claim exceeds $15,000 if the court believes a guardian ad
254 litem is necessary to protect the minor’s interest.
255 (b) Except as provided in paragraph (e), the court shall
256 appoint a guardian ad litem to represent the minor’s interest
257 before approving a settlement of the minor’s claim in a any case
258 in which the gross settlement involving a minor equals or
259 exceeds $50,000.
260 (c) The appointment of the guardian ad litem must be
261 without the necessity of bond or notice.
262 (d) The duty of the guardian ad litem is to protect the
263 minor’s interests as described in the Florida Probate Rules.
264 (e) A court need not appoint a guardian ad litem for the
265 minor if a guardian of the minor has previously been appointed
266 and that guardian has no potential adverse interest to the
267 minor. A court may appoint a guardian ad litem if the court
268 believes a guardian ad litem is necessary to protect the
269 interests of the minor.
270 (2) Unless waived, the court shall award reasonable fees
271 and costs to the guardian ad litem to be paid out of the gross
272 proceeds of the settlement.
273 (3) A settlement of a claim pursuant to this section is
274 subject to the confidentiality provisions of this chapter.
275 Section 7. Subsections (2) through (8) of section 744.3031,
276 Florida Statutes, are renumbered as subsections (3) through (9),
277 respectively, a new subsection (2) is added to that section, and
278 present subsection (8) of that section is amended, to read:
279 744.3031 Emergency temporary guardianship.—
280 (2) Notice of filing of the petition for appointment of an
281 emergency temporary guardian and a hearing on the petition must
282 be served on the alleged incapacitated person and on the alleged
283 incapacitated person’s attorney at least 24 hours before the
284 hearing on the petition is commenced, unless the petitioner
285 demonstrates that substantial harm to the alleged incapacitated
286 person would occur if the 24-hour notice is given.
287 (9)(8)(a) An emergency temporary guardian shall file a
288 final report no later than 30 days after the expiration of the
289 emergency temporary guardianship.
290 (b) A court may not authorize any final payment of the
291 emergency temporary guardian fees or the fees of his or her
292 attorney until the final report is filed.
293 (c)(b) If an emergency temporary guardian is a guardian for
294 the property, the final report must consist of a verified
295 inventory of the property, as provided in s. 744.365, as of the
296 date the letters of emergency temporary guardianship were
297 issued, a final accounting that gives a full and correct account
298 of the receipts and disbursements of all the property of the
299 ward over which the guardian had control, and a statement of the
300 property of the ward on hand at the end of the emergency
301 temporary guardianship. If the emergency temporary guardian
302 becomes the successor guardian of the property, the final report
303 must satisfy the requirements of the initial guardianship report
304 for the guardian of the property as provided in s. 744.362.
305 (d)(c) If the emergency temporary guardian is a guardian of
306 the person, the final report must summarize the activities of
307 the temporary guardian with regard to residential placement,
308 medical condition, mental health and rehabilitative services,
309 and the social condition of the ward to the extent of the
310 authority granted to the temporary guardian in the letters of
311 guardianship. If the emergency temporary guardian becomes the
312 successor guardian of the person, the report must satisfy the
313 requirements of the initial report for a guardian of the person
314 as stated in s. 744.362.
315 (e)(d) A copy of the final report of the emergency
316 temporary guardianship shall be served on the successor guardian
317 and the ward.
318 Section 8. Subsection (7) is added to section 744.309,
319 Florida Statutes, to read:
320 744.309 Who may be appointed guardian of a resident ward.—
321 (7) FOR-PROFIT CORPORATE GUARDIAN.—A for-profit corporate
322 guardian existing under the laws of this state is qualified to
323 act as guardian of a ward if the entity is qualified to do
324 business in the state, is wholly owned by the person who is the
325 circuit’s public guardian in the circuit where the corporate
326 guardian is appointed, has met the registration requirements of
327 s. 744.1083, and posts and maintains a bond or insurance policy
328 under paragraph (a).
329 (a) The for-profit corporate guardian must meet one of the
330 following requirements:
331 1. Post and maintain a blanket fiduciary bond of at least
332 $250,000 with the clerk of the circuit court in the county in
333 which the corporate guardian has its principal place of
334 business. The corporate guardian shall provide proof of the
335 fiduciary bond to the clerks of each additional circuit court in
336 which he or she is serving as a guardian. The bond must cover
337 all wards for whom the corporation has been appointed as a
338 guardian at any given time. The liability of the provider of the
339 bond is limited to the face value of the bond, regardless of the
340 number of wards for whom the corporation is acting as a
341 guardian. The terms of the bond must cover the acts or omissions
342 of each agent or employee of the corporation who has direct
343 contact with the ward or access to the assets of the
344 guardianship. The bond must be payable to the Governor and his
345 or her successors in office and be conditioned on the faithful
346 performance of all duties of a guardian under this chapter. The
347 bond is in lieu of and not in addition to the bond required
348 under s. 744.1085 but is in addition to any bonds required under
349 s. 744.351. The expenses incurred to satisfy the bonding
350 requirements of this section may not be paid with the assets of
351 any ward; or
352 2. Maintain a liability insurance policy that covers any
353 losses sustained by the guardianship caused by errors,
354 omissions, or any intentional misconduct committed by the
355 corporation’s officers or agents. The policy must cover all
356 wards for whom the corporation is acting as a guardian for
357 losses up to $250,000. The terms of the policy must cover acts
358 or omissions of each agent or employee of the corporation who
359 has direct contact with the ward or access to the assets of the
360 guardianship. The corporate guardian shall provide proof of the
361 fiduciary bond to the clerk of each circuit court in which he or
362 she is serving as a guardian.
363 (b) A for-profit corporation appointed as guardian before
364 July 1, 2015, is also qualified to serve as a guardian in the
365 particular guardianships in which the corporation has already
366 been appointed as guardian.
367 Section 9. Section 744.3115, Florida Statutes, is amended
368 to read:
369 744.3115 Advance directives for health care.—In each
370 proceeding in which a guardian is appointed under this chapter,
371 the court shall determine whether the ward, prior to incapacity,
372 has executed any valid advance directive under chapter 765. If
373 any advance directive exists, the court shall specify in its
374 order and letters of guardianship what authority, if any, the
375 guardian shall exercise over the ward with regard to health care
376 decisions and what authority, if any, the surrogate shall
377 continue to exercise over the ward with regard to health care
378 decisions surrogate. Pursuant to the grounds listed in s.
379 765.105, the court, upon its own motion, may, with notice to the
380 surrogate and any other appropriate parties, modify or revoke
381 the authority of the surrogate to make health care decisions for
382 the ward. Any order revoking or modifying the authority of the
383 surrogate must be supported by specific written findings of
384 fact. If the court order provides that the guardian is
385 responsible for making health care decisions for the ward, the
386 guardian shall assume the responsibilities of the surrogate
387 which are provided in s. 765.205. For purposes of this section,
388 the term “health care decision” has the same meaning as in s.
389 765.101.
390 Section 10. Section 744.312, Florida Statutes, is reordered
391 and amended to read:
392 744.312 Considerations in appointment of guardian.—
393 (2)(1) If a guardian cannot be appointed under subsection
394 (1) Subject to the provisions of subsection (4), the court may
395 appoint any person who is fit and proper and qualified to act as
396 guardian, whether related to the ward or not.
397 (2) The court shall give preference to the appointment of a
398 person who:
399 (a) Is related by blood or marriage to the ward;
400 (b) Has educational, professional, or business experience
401 relevant to the nature of the services sought to be provided;
402 (c) Has the capacity to manage the financial resources
403 involved; or
404 (d) Has the ability to meet the requirements of the law and
405 the unique needs of the individual case.
406 (3) The court shall also:
407 (a) Consider the wishes expressed by an incapacitated
408 person as to who shall be appointed guardian.;
409 (b) Consider the preference of a minor who is age 14 or
410 over as to who should be appointed guardian.;
411 (c) Consider any person designated as guardian in any will
412 in which the ward is a beneficiary.
413 (d) Consider the wishes of the ward’s next of kin when the
414 ward cannot express a preference.
415 (1)(4) If the person designated is qualified to serve
416 pursuant to s. 744.309, the court shall appoint any standby
417 guardian or preneed guardian, unless the court determines that
418 appointing such person is contrary to the best interests of the
419 ward.
420 (4) Except when a standby guardian or a preneed guardian is
421 appointed by the court:
422 (a) In each case when a court appoints a professional
423 guardian and does not use a rotation system for such
424 appointment, the court must make specific findings of fact
425 stating why the person was selected as guardian in the
426 particular matter involved. The findings must reference each of
427 the factors listed in subsections (2) and (3).
428 (b) An emergency temporary guardian who is a professional
429 guardian may not be appointed as the permanent guardian of a
430 ward unless one of the next of kin of the alleged incapacitated
431 person or the ward requests that the professional guardian be
432 appointed as permanent guardian. The court may waive the
433 limitations of this paragraph if the special requirements of the
434 guardianship demand that the court appoint a guardian because he
435 or she has special talent or specific prior experience. The
436 court must make specific findings of fact that justify waiving
437 the limitations of this paragraph.
438 (5) The court may not give preference to the appointment of
439 a person under subsection (2) based solely on the fact that such
440 person was appointed by the court to serve as an emergency
441 temporary guardian.
442 Section 11. Section 744.3203, Florida Statutes, is created
443 to read:
444 744.3203 Suspension of power of attorney before incapacity
445 determination.—
446 (1) At any time during proceedings to determine incapacity
447 but before the entry of an order determining incapacity, the
448 authority granted under an alleged incapacitated person’s power
449 of attorney to a parent, spouse, child, or grandchild is
450 suspended when the petitioner files a motion stating that a
451 specific power of attorney should be suspended for any of the
452 following grounds:
453 (a) The agent’s decisions are not in accord with the
454 alleged incapacitated person’s known desires.
455 (b) The power of attorney is invalid.
456 (c) The agent has failed to discharge his or her duties or
457 incapacity or illness renders the agent incapable of discharging
458 duties.
459 (d) The agent has abused powers.
460 (e) There is a danger that the property of the alleged
461 incapacitated person may be wasted, misappropriated, or lost
462 unless the authority under the power of attorney is suspended.
463
464 Grounds for suspending a power of attorney do not include the
465 existence of a dispute between the agent and the petitioner
466 which is more appropriate for resolution in some other forum or
467 a legal proceeding other than a guardianship proceeding.
468 (2) The motion must:
469 (a) Identify one or more of the grounds in subsection (1);
470 (b) Include specific statements of fact showing that
471 grounds exist to justify the relief sought; and
472 (c) Include the following statement: “Under penalties of
473 perjury, I declare that I have read the foregoing motion and
474 that the facts stated in it are true to the best of my knowledge
475 and belief,” followed by the signature of the petitioner.
476 (3) Upon the filing of a response to the motion by the
477 agent under the power of attorney, the court shall schedule the
478 motion for an expedited hearing. Unless an emergency arises and
479 the agent’s response sets forth the nature of the emergency, the
480 property or matter involved, and the power to be exercised by
481 the agent, notice must be given to all interested persons, the
482 alleged incapacitated person, and the alleged incapacitated
483 person’s attorney. The court order following the hearing must
484 set forth what powers the agent is permitted to exercise, if
485 any, pending the outcome of the petition to determine
486 incapacity.
487 (4) In addition to any other remedy authorized by law, a
488 court may award reasonable attorney fees and costs to an agent
489 who successfully challenges the suspension of the power of
490 attorney if the petitioner’s motion was made in bad faith.
491 (5) The suspension of authority granted to persons other
492 than a parent, spouse, child, or grandchild shall be as provided
493 in s. 709.2109.
494 Section 12. Subsection (6) and paragraph (c) of subsection
495 (7) of section 744.331, Florida Statutes, are amended to read:
496 744.331 Procedures to determine incapacity.—
497 (6) ORDER DETERMINING INCAPACITY.—If, after making findings
498 of fact on the basis of clear and convincing evidence, the court
499 finds that a person is incapacitated with respect to the
500 exercise of a particular right, or all rights, the court shall
501 enter a written order determining such incapacity. In
502 determining incapacity, the court shall consider the person’s
503 unique needs and abilities and may remove only those rights that
504 the court finds the person does not have the capacity to
505 exercise. A person is determined to be incapacitated only with
506 respect to those rights specified in the order.
507 (a) The court shall make the following findings:
508 1. The exact nature and scope of the person’s incapacities;
509 2. The exact areas in which the person lacks capacity to
510 make informed decisions about care and treatment services or to
511 meet the essential requirements for her or his physical or
512 mental health or safety;
513 3. The specific legal disabilities to which the person is
514 subject; and
515 4. The specific rights that the person is incapable of
516 exercising.
517 (b) When an order determines that a person is incapable of
518 exercising delegable rights, the court must consider and find
519 whether there is an alternative to guardianship that will
520 sufficiently address the problems of the incapacitated person. A
521 guardian must be appointed to exercise the incapacitated
522 person’s delegable rights unless the court finds there is an
523 alternative. A guardian may not be appointed if the court finds
524 there is an alternative to guardianship which will sufficiently
525 address the problems of the incapacitated person. If the court
526 finds there is not an alternative to guardianship that
527 sufficiently addresses the problems of the incapacitated person,
528 a guardian must be appointed to exercise the incapacitated
529 person’s delegable rights.
530 (c) In determining that a person is totally incapacitated,
531 the order must contain findings of fact demonstrating that the
532 individual is totally without capacity to care for herself or
533 himself or her or his property.
534 (d) An order adjudicating a person to be incapacitated
535 constitutes proof of such incapacity until further order of the
536 court.
537 (e) After the order determining that the person is
538 incapacitated has been filed with the clerk, it must be served
539 on the incapacitated person. The person is deemed incapacitated
540 only to the extent of the findings of the court. The filing of
541 the order is notice of the incapacity. An incapacitated person
542 retains all rights not specifically removed by the court.
543 (f) Upon the filing of a verified statement by an
544 interested person stating:
545 1. That he or she has a good faith belief that the alleged
546 incapacitated person’s trust, trust amendment, or durable power
547 of attorney is invalid; and
548 2. A reasonable factual basis for that belief,
549
550 the trust, trust amendment, or durable power of attorney shall
551 not be deemed to be an alternative to the appointment of a
552 guardian. The appointment of a guardian does not limit the
553 court’s power to determine that certain authority granted by a
554 durable power of attorney is to remain exercisable by the agent
555 attorney in fact.
556 (7) FEES.—
557 (c) If the petition is dismissed or denied:,
558 1. The fees of the examining committee shall be paid upon
559 court order as expert witness fees under s. 29.004(6).
560 2. Costs and attorney attorney’s fees of the proceeding may
561 be assessed against the petitioner if the court finds the
562 petition to have been filed in bad faith. The petitioner shall
563 also reimburse the state courts system for any amounts paid
564 under subparagraph 1. upon such a finding.
565 Section 13. Subsection (4) of section 744.344, Florida
566 Statutes, is amended to read:
567 744.344 Order of appointment.—
568 (4) If a petition for the appointment of a guardian has not
569 been filed or ruled upon at the time of the hearing on the
570 petition to determine capacity, the court may appoint an
571 emergency temporary guardian in the manner and for the purposes
572 specified in s. 744.3031.
573 Section 14. Section 744.345, Florida Statutes, is amended
574 to read:
575 744.345 Letters of guardianship.—Letters of guardianship
576 shall be issued to the guardian and shall specify whether the
577 guardianship pertains to the person, or the property, or both,
578 of the ward. The letters must state whether the guardianship is
579 plenary or limited, and, if limited, the letters must state the
580 powers and duties of the guardian. If the guardianship is
581 limited, The letters shall state whether or not and to what
582 extent the guardian is authorized to act on behalf of the ward
583 with regard to any advance directive previously executed by the
584 ward.
585 Section 15. Section 744.359, Florida Statutes, is created
586 to read:
587 744.359 Abuse, neglect, or exploitation by a guardian.—
588 (1) A guardian may not abuse, neglect, or exploit a ward.
589 (2) A guardian has committed exploitation when the
590 guardian:
591 (a) Commits fraud in obtaining appointment as a guardian;
592 (b) Abuses his or her powers; or
593 (c) Wastes, embezzles, or intentionally mismanages the
594 assets of the ward.
595 (3) A person who believes that a guardian is abusing,
596 neglecting, or exploiting a ward shall report the incident to
597 the central abuse hotline of the Department of Children and
598 Families.
599 (4) This section shall be interpreted in conformity with s.
600 825.103.
601 Section 16. Section 744.361, Florida Statutes, is amended
602 to read:
603 744.361 Powers and duties of guardian.—
604 (1) The guardian of an incapacitated person is a fiduciary
605 and may exercise only those rights that have been removed from
606 the ward and delegated to the guardian. The guardian of a minor
607 shall exercise the powers of a plenary guardian.
608 (2) The guardian shall act within the scope of the
609 authority granted by the court and as provided by law.
610 (3) The guardian shall act in good faith.
611 (4) A guardian may not act in a manner that is contrary to
612 the ward’s best interests under the circumstances.
613 (5) A guardian who has special skills or expertise, or is
614 appointed in reliance upon the guardian’s representation that
615 the guardian has special skills or expertise, shall use those
616 special skills or expertise when acting on behalf of the ward.
617 (6)(2) The guardian shall file an initial guardianship
618 report in accordance with s. 744.362.
619 (7)(3) The guardian shall file a guardianship report
620 annually in accordance with s. 744.367.
621 (8)(4) The guardian of the person shall implement the
622 guardianship plan.
623 (9)(5) When two or more guardians have been appointed, the
624 guardians shall consult with each other.
625 (10)(6) A guardian who is given authority over any property
626 of the ward shall:
627 (a) Protect and preserve the property and invest it
628 prudently as provided in chapter 518, apply it as provided in s.
629 744.397, and keep clear, distinct, and accurate records of the
630 administration of the ward’s property account for it faithfully.
631 (b) Perform all other duties required of him or her by law.
632 (c) At the termination of the guardianship, deliver the
633 property of the ward to the person lawfully entitled to it.
634 (11)(7) The guardian shall observe the standards in dealing
635 with the guardianship property that would be observed by a
636 prudent person dealing with the property of another, and, if the
637 guardian has special skills or is named guardian on the basis of
638 representations of special skills or expertise, he or she is
639 under a duty to use those skills.
640 (12)(8) The guardian, if authorized by the court, shall
641 take possession of all of the ward’s property and of the rents,
642 income, issues, and profits from it, whether accruing before or
643 after the guardian’s appointment, and of the proceeds arising
644 from the sale, lease, or mortgage of the property or of any
645 part. All of the property and the rents, income, issues, and
646 profits from it are assets in the hands of the guardian for the
647 payment of debts, taxes, claims, charges, and expenses of the
648 guardianship and for the care, support, maintenance, and
649 education of the ward or the ward’s dependents, as provided for
650 under the terms of the guardianship plan or by law.
651 (13) Recognizing that every individual has unique needs and
652 abilities, a guardian who is given authority over a ward’s
653 person shall, as appropriate under the circumstances:
654 (a) Consider the expressed desires of the ward as known by
655 the guardian when making decisions that affect the ward.
656 (b) Allow the ward to maintain contact with family and
657 friends unless the guardian believes that such contact may cause
658 harm to the ward.
659 (c) Not restrict the physical liberty of the ward more than
660 reasonably necessary to protect the ward or another person from
661 serious physical injury, illness, or disease.
662 (d) Assist the ward in developing or regaining capacity, if
663 medically possible.
664 (e) Notify the court if the guardian believes that the ward
665 has regained capacity and that one or more of the rights that
666 have been removed should be restored to the ward.
667 (f) To the extent applicable, make provision for the
668 medical, mental, rehabilitative, or personal care services for
669 the welfare of the ward.
670 (g) To the extent applicable, acquire a clear understanding
671 of the risks and benefits of a recommended course of health care
672 treatment before making a health care decision.
673 (h) Evaluate the ward’s medical and health care options,
674 financial resources, and desires when making residential
675 decisions that are best suited for the current needs of the
676 ward.
677 (i) Advocate on behalf of the ward in institutional and
678 other residential settings and regarding access to home and
679 community-based services.
680 (j) Acquire an understanding of the available residential
681 options and give priority to home and other community-based
682 services and settings when not inconsistent with the person’s
683 goals, needs, and preferences.
684 (14)(9) A professional guardian must ensure that each of
685 the guardian’s wards is personally visited by the guardian or
686 one of the guardian’s professional staff at least once each
687 calendar quarter. During the personal visit, the guardian or the
688 guardian’s professional staff person shall assess:
689 (a) The ward’s physical appearance and condition.
690 (b) The appropriateness of the ward’s current living
691 situation.
692 (c) The need for any additional services and the necessity
693 for continuation of existing services, taking into consideration
694 all aspects of social, psychological, educational, direct
695 service, health, and personal care needs.
696 (d) The nature and extent of visitation and communication
697 with the ward’s family and friends.
698
699 This subsection does not apply to a professional guardian who
700 has been appointed only as guardian of the property.
701 Section 17. Subsection (1) of section 744.367, Florida
702 Statutes, is amended to read:
703 744.367 Duty to file annual guardianship report.—
704 (1) Unless the court requires filing on a calendar-year
705 basis, each guardian of the person shall file with the court an
706 annual guardianship plan at least 60 days, but no more than
707 within 90 days, before after the last day of the anniversary
708 month that the letters of guardianship were signed, and the plan
709 must cover the coming fiscal year, ending on the last day in
710 such anniversary month. If the court requires calendar-year
711 filing, the guardianship plan for the forthcoming calendar year
712 must be filed on or after September 1, but no later than
713 December 1, of the current year before April 1 of each year.
714 Section 18. Subsection (8) of section 744.369, Florida
715 Statutes, is amended to read:
716 744.369 Judicial review of guardianship reports.—
717 (8) The approved report constitutes the authority for the
718 guardian to act in the forthcoming year. The powers of the
719 guardian are limited by the terms of the report. The annual
720 report may not grant additional authority to the guardian
721 without a hearing, as provided for in s. 744.331, to determine
722 that the ward is incapacitated to act in that matter. Unless the
723 court orders otherwise, the guardian may continue to act under
724 authority of the last approved report until the forthcoming
725 year’s report is approved.
726 Section 19. Subsection (1) of section 744.3715, Florida
727 Statutes, is amended to read:
728 744.3715 Petition for interim judicial review.—
729 (1) At any time, any interested person, including the ward,
730 may petition the court for review alleging that the guardian is
731 not complying with the guardianship plan, or is exceeding his or
732 her authority under the guardianship plan, is acting in a manner
733 contrary to s. 744.361, is denying visitation between the ward
734 and his or her relatives in violation of s. 744.361(13), or and
735 the guardian is not acting in the best interest of the ward. The
736 petition for review must state the nature of the objection to
737 the guardian’s action or proposed action. Upon the filing of any
738 such petition, the court shall review the petition and act upon
739 it expeditiously.
740 Section 20. Paragraphs (a) and (b) of subsection (3) of
741 section 744.464, Florida Statutes, are amended, and subsection
742 (4) is added to that section, to read:
743 744.464 Restoration to capacity.—
744 (3) ORDER OF RESTORATION.—
745 (a) If no objections are filed, and the court is satisfied
746 that with the medical examination establishes by a preponderance
747 of the evidence that restoration of all or some of the ward’s
748 rights is appropriate, the court shall enter an order of
749 restoration of capacity, restoring all or some of the rights
750 which were removed from the ward in accordance with those
751 findings. The order must be issued within 30 days after the
752 medical report is filed.
753 (b) At the conclusion of a hearing, conducted pursuant to
754 s. 744.1095, the court shall make specific findings of fact and,
755 based on a preponderance of the evidence, enter an order either
756 denying the suggestion of capacity or restoring all or some of
757 the rights which were removed from the ward. The ward has the
758 burden of proving by a preponderance of the evidence that the
759 restoration of capacity is warranted.
760 (4) TIMELINESS OF HEARING.—The court shall give priority to
761 any suggestion of capacity and shall advance the cause on the
762 calendar.
763 Section 21. Section 709.2109, Florida Statutes, as amended
764 by this act, and sections 744.3203 and 744.359, Florida
765 Statutes, as created by this act, apply to all proceedings filed
766 on or after July 1, 2015. The amendments made by this act to ss.
767 744.107, 744.1075, 744.108, 744.3025, 744.3031, 744.309,
768 744.3115, 744.312, 744.331, 744.344, 744.345, 744.361, 744.367,
769 744.369, 744.3715, and 744.464, Florida Statutes, apply to all
770 proceedings pending on July 1, 2015.
771 Section 22. This act shall take effect July 1, 2015.
