Bill Text: FL S0634 | 2014 | Regular Session | Comm Sub

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Guardianship

Spectrum: Slight Partisan Bill (? 3-1)

Status: (Introduced - Dead) 2014-04-25 - Laid on Table, companion bill(s) passed, see CS/HB 635 (Ch. 2014-124) [S0634 Detail]

Download: Florida-2014-S0634-Comm_Sub.html

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       Florida Senate - 2014                              CS for SB 634
       
       
        
       By the Committee on Children, Families, and Elder Affairs; and
       Senator Brandes
       
       
       
       
       586-01758-14                                           2014634c1
    1                        A bill to be entitled                      
    2         An act relating to guardianship; amending s. 744.102,
    3         F.S.; redefining the term “audit”; amending s.
    4         744.3135, F.S.; revising the requirements and
    5         authorizations of the court to require specified
    6         guardians to submit to a credit history investigation
    7         and background screening; authorizing a
    8         nonprofessional guardian to petition the court for
    9         reimbursement for the credit history investigation and
   10         background screening; amending s. 744.368, F.S.;
   11         authorizing a clerk of the court to obtain and review
   12         records impacting guardianship assets and to issue
   13         subpoenas to nonparties upon application to the court;
   14         providing requirements for affidavits, notice, and
   15         subpoenas; providing for objection to a subpoena;
   16         amending s. 744.3685, F.S.; authorizing the court to
   17         require the production of records and documents by a
   18         guardian who fails to submit them during an audit;
   19         amending s. 744.474, F.S.; providing for the removal
   20         of a guardian for a bad faith failure to submit
   21         records during an audit; amending ss. 943.0585 and
   22         943.059, F.S.; providing that a person seeking an
   23         appointment as guardian may not lawfully deny or fail
   24         to acknowledge the arrests covered by an expunged or
   25         sealed record; reenacting s. 943.0585(4)(c), F.S.,
   26         relating to court-ordered expunction of criminal
   27         history records, to incorporate the amendments made to
   28         s. 943.0585, F.S., in a reference thereto; reenacting
   29         s. 943.059(4)(c), relating to court-ordered sealing of
   30         criminal history records, to incorporate the
   31         amendments made to s. 943.059, F.S., in a reference
   32         thereto; providing an effective date.
   33          
   34  Be It Enacted by the Legislature of the State of Florida:
   35  
   36         Section 1. Subsection (2) of section 744.102, Florida
   37  Statutes, is amended to read:
   38         744.102 Definitions.—As used in this chapter, the term:
   39         (2) “Audit” means a systematic review of financial and all
   40  other documents to ensure compliance with s. 744.368, rules of
   41  court, and local procedures using generally accepted accounting
   42  principles. The term includes various practices that meet
   43  professional standards, such as verifications, reviews of
   44  substantiating papers and accounts, interviews, inspections, and
   45  investigations.
   46         Section 2. Subsection (1) of section 744.3135, Florida
   47  Statutes, is amended to read:
   48         744.3135 Credit and criminal investigation.—
   49         (1) The court shall require all guardians who are seeking
   50  appointment by the court, other than a corporate guardian as
   51  described in s. 744.309(4) may require a nonprofessional
   52  guardian and shall require a professional or public guardian,
   53  and all employees of a professional guardian, other than a
   54  corporate guardian as described in s. 744.309(4), who have a
   55  fiduciary responsibility to a ward, to submit, at their own
   56  expense, to a an investigation of the guardian’s credit history
   57  investigation and to undergo level 2 background screening as
   58  required under s. 435.04. If appointed, a nonprofessional
   59  guardian may petition the court for reimbursement of the
   60  reasonable expenses of the credit history investigation and
   61  background screening. If a credit or criminal history record
   62  check is required, The court must consider the results of any
   63  investigation before appointing a guardian. At any time, the
   64  court may require a guardian or the guardian’s employees to
   65  submit to an investigation of the person’s credit history and
   66  complete a level 1 background screening pursuant to as set forth
   67  in s. 435.03. The court shall consider the results of any
   68  investigation in determining whether to reappoint when
   69  reappointing a guardian. The clerk of the court shall maintain a
   70  file on each guardian appointed by the court and retain in the
   71  file documentation of the result of any investigation conducted
   72  under this section. A professional guardian shall must pay the
   73  clerk of the court a fee of up to $7.50 for handling and
   74  processing professional guardian files.
   75         Section 3. Subsections (5) through (7) are added to section
   76  744.368, Florida Statutes, to read:
   77         744.368 Responsibilities of the clerk of the circuit
   78  court.—
   79         (5) If the clerk has reason to believe further review is
   80  appropriate, the clerk may request and review records and
   81  documents that reasonably impact guardianship assets, including,
   82  but not limited to, the beginning inventory balance and any fees
   83  charged to the guardianship.
   84         (6) If a guardian fails to produce records and documents to
   85  the clerk upon request, the clerk may request the court to enter
   86  an order pursuant to s. 744.3685(2) by filing an affidavit that
   87  identifies the records and documents requested and shows good
   88  cause as to why the documents and records requested are needed
   89  to complete the audit.
   90         (7) Upon application to the court supported by an affidavit
   91  pursuant to subsection (6), the clerk may issue subpoenas to
   92  nonparties to compel production of books, papers, and other
   93  documentary evidence. Before issuance of a subpoena by
   94  affidavit, the clerk must serve notice on the guardian and the
   95  ward, unless the ward is a minor or totally incapacitated, of
   96  the intent to serve subpoenas to nonparties.
   97         (a) The clerk must attach the affidavit and the proposed
   98  subpoena to the notice to the guardian and, if appropriate, to
   99  the ward, and must:
  100         1. State the time, place, and method for production of the
  101  documents or items, and the name and address of the person who
  102  is to produce the documents or items, if known, or if not known,
  103  a general description sufficient to identify the person or the
  104  particular class or group to which the person belongs;
  105         2. Include a designation of the items to be produced; and
  106         3. State that the person who will be asked to produce the
  107  documents or items has the right to object to the production
  108  under this section and that the person is not required to
  109  surrender the documents or items.
  110         (b) A copy of the notice and proposed subpoena may not be
  111  furnished to the person upon whom the subpoena is to be served.
  112         (c) If the guardian or ward serves an objection to
  113  production under this subsection within 10 days after service of
  114  the notice, the documents or items may not be required to be
  115  produced until resolution of the objection. If an objection is
  116  not made within 10 days after service of the notice, the clerk
  117  may issue the subpoena to the nonparty. The court may shorten
  118  the period within which a guardian or ward is required to file
  119  an objection upon a showing by the clerk by affidavit that the
  120  ward’s property is in imminent danger of being wasted,
  121  misappropriated, or lost unless immediate action is taken.
  122         Section 4. Section 744.3685, Florida Statutes, is amended
  123  to read:
  124         744.3685 Order requiring guardianship report; contempt.—
  125         (1) If When a guardian fails to file the guardianship
  126  report, the court shall order the guardian to file the report
  127  within 15 days after the service of the order upon her or him or
  128  show cause why she or he may should not be compelled to do so.
  129         (2) If a guardian fails to comply with the submission of
  130  records and documents requested by the clerk during the audit,
  131  upon a showing of good cause by affidavit of the clerk which
  132  shows the reasons the records must be produced, the court may
  133  order the guardian to produce the records and documents within a
  134  period specified by the court unless the guardian shows good
  135  cause as to why the guardian may not be compelled to do so
  136  before the deadline specified by the court. The affidavit of the
  137  clerk shall be served with the order.
  138         (3) A copy of an the order entered pursuant to subsection
  139  (1) or subsection (2) shall be served on the guardian or on the
  140  guardian’s resident agent. If the guardian fails to comply with
  141  the order file her or his report within the time specified by
  142  the order without good cause, the court may cite the guardian
  143  for contempt of court and may fine her or him. The fine may not
  144  be paid out of the ward’s property.
  145         Section 5. Subsection (21) is added to section 744.474,
  146  Florida Statutes, to read:
  147         744.474 Reasons for removal of guardian.—A guardian may be
  148  removed for any of the following reasons, and the removal shall
  149  be in addition to any other penalties prescribed by law:
  150         (21) A bad faith failure to submit guardianship records
  151  during the audit pursuant to s. 744.368.
  152         Section 6. Paragraph (a) of subsection (4) of section
  153  943.0585, Florida Statutes, is amended, and paragraph (c) of
  154  that subsection is reenacted, to read:
  155         943.0585 Court-ordered expunction of criminal history
  156  records.—The courts of this state have jurisdiction over their
  157  own procedures, including the maintenance, expunction, and
  158  correction of judicial records containing criminal history
  159  information to the extent such procedures are not inconsistent
  160  with the conditions, responsibilities, and duties established by
  161  this section. Any court of competent jurisdiction may order a
  162  criminal justice agency to expunge the criminal history record
  163  of a minor or an adult who complies with the requirements of
  164  this section. The court shall not order a criminal justice
  165  agency to expunge a criminal history record until the person
  166  seeking to expunge a criminal history record has applied for and
  167  received a certificate of eligibility for expunction pursuant to
  168  subsection (2). A criminal history record that relates to a
  169  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
  170  s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
  171  827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
  172  893.135, s. 916.1075, a violation enumerated in s. 907.041, or
  173  any violation specified as a predicate offense for registration
  174  as a sexual predator pursuant to s. 775.21, without regard to
  175  whether that offense alone is sufficient to require such
  176  registration, or for registration as a sexual offender pursuant
  177  to s. 943.0435, may not be expunged, without regard to whether
  178  adjudication was withheld, if the defendant was found guilty of
  179  or pled guilty or nolo contendere to the offense, or if the
  180  defendant, as a minor, was found to have committed, or pled
  181  guilty or nolo contendere to committing, the offense as a
  182  delinquent act. The court may only order expunction of a
  183  criminal history record pertaining to one arrest or one incident
  184  of alleged criminal activity, except as provided in this
  185  section. The court may, at its sole discretion, order the
  186  expunction of a criminal history record pertaining to more than
  187  one arrest if the additional arrests directly relate to the
  188  original arrest. If the court intends to order the expunction of
  189  records pertaining to such additional arrests, such intent must
  190  be specified in the order. A criminal justice agency may not
  191  expunge any record pertaining to such additional arrests if the
  192  order to expunge does not articulate the intention of the court
  193  to expunge a record pertaining to more than one arrest. This
  194  section does not prevent the court from ordering the expunction
  195  of only a portion of a criminal history record pertaining to one
  196  arrest or one incident of alleged criminal activity.
  197  Notwithstanding any law to the contrary, a criminal justice
  198  agency may comply with laws, court orders, and official requests
  199  of other jurisdictions relating to expunction, correction, or
  200  confidential handling of criminal history records or information
  201  derived therefrom. This section does not confer any right to the
  202  expunction of any criminal history record, and any request for
  203  expunction of a criminal history record may be denied at the
  204  sole discretion of the court.
  205         (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
  206  criminal history record of a minor or an adult which is ordered
  207  expunged by a court of competent jurisdiction pursuant to this
  208  section must be physically destroyed or obliterated by any
  209  criminal justice agency having custody of such record; except
  210  that any criminal history record in the custody of the
  211  department must be retained in all cases. A criminal history
  212  record ordered expunged that is retained by the department is
  213  confidential and exempt from the provisions of s. 119.07(1) and
  214  s. 24(a), Art. I of the State Constitution and not available to
  215  any person or entity except upon order of a court of competent
  216  jurisdiction. A criminal justice agency may retain a notation
  217  indicating compliance with an order to expunge.
  218         (a) The person who is the subject of a criminal history
  219  record that is expunged under this section or under other
  220  provisions of law, including former s. 893.14, former s. 901.33,
  221  and former s. 943.058, may lawfully deny or fail to acknowledge
  222  the arrests covered by the expunged record, except when the
  223  subject of the record:
  224         1. Is a candidate for employment with a criminal justice
  225  agency;
  226         2. Is a defendant in a criminal prosecution;
  227         3. Concurrently or subsequently petitions for relief under
  228  this section, s. 943.0583, or s. 943.059;
  229         4. Is a candidate for admission to The Florida Bar;
  230         5. Is seeking to be employed or licensed by or to contract
  231  with the Department of Children and Families, the Division of
  232  Vocational Rehabilitation within the Department of Education,
  233  the Agency for Health Care Administration, the Agency for
  234  Persons with Disabilities, the Department of Health, the
  235  Department of Elderly Affairs, or the Department of Juvenile
  236  Justice or to be employed or used by such contractor or licensee
  237  in a sensitive position having direct contact with children, the
  238  disabled, or the elderly; or
  239         6. Is seeking to be employed or licensed by the Department
  240  of Education, any district school board, any university
  241  laboratory school, any charter school, any private or parochial
  242  school, or any local governmental entity that licenses child
  243  care facilities; or.
  244         7. Is seeking to be appointed as a guardian pursuant to s.
  245  744.3125.
  246         (c) Information relating to the existence of an expunged
  247  criminal history record which is provided in accordance with
  248  paragraph (a) is confidential and exempt from the provisions of
  249  s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
  250  except that the department shall disclose the existence of a
  251  criminal history record ordered expunged to the entities set
  252  forth in subparagraphs (a)1., 4., 5., 6., and 7. for their
  253  respective licensing, access authorization, and employment
  254  purposes, and to criminal justice agencies for their respective
  255  criminal justice purposes. It is unlawful for any employee of an
  256  entity set forth in subparagraph (a)1., subparagraph (a)4.,
  257  subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to
  258  disclose information relating to the existence of an expunged
  259  criminal history record of a person seeking employment, access
  260  authorization, or licensure with such entity or contractor,
  261  except to the person to whom the criminal history record relates
  262  or to persons having direct responsibility for employment,
  263  access authorization, or licensure decisions. Any person who
  264  violates this paragraph commits a misdemeanor of the first
  265  degree, punishable as provided in s. 775.082 or s. 775.083.
  266         Section 7. Paragraph (a) of subsection (4) of section
  267  943.059, Florida Statutes, is amended, and paragraph (c) of that
  268  subsection is reenacted, to read:
  269         943.059 Court-ordered sealing of criminal history records.
  270  The courts of this state shall continue to have jurisdiction
  271  over their own procedures, including the maintenance, sealing,
  272  and correction of judicial records containing criminal history
  273  information to the extent such procedures are not inconsistent
  274  with the conditions, responsibilities, and duties established by
  275  this section. Any court of competent jurisdiction may order a
  276  criminal justice agency to seal the criminal history record of a
  277  minor or an adult who complies with the requirements of this
  278  section. The court shall not order a criminal justice agency to
  279  seal a criminal history record until the person seeking to seal
  280  a criminal history record has applied for and received a
  281  certificate of eligibility for sealing pursuant to subsection
  282  (2). A criminal history record that relates to a violation of s.
  283  393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
  284  800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
  285  839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
  286  916.1075, a violation enumerated in s. 907.041, or any violation
  287  specified as a predicate offense for registration as a sexual
  288  predator pursuant to s. 775.21, without regard to whether that
  289  offense alone is sufficient to require such registration, or for
  290  registration as a sexual offender pursuant to s. 943.0435, may
  291  not be sealed, without regard to whether adjudication was
  292  withheld, if the defendant was found guilty of or pled guilty or
  293  nolo contendere to the offense, or if the defendant, as a minor,
  294  was found to have committed or pled guilty or nolo contendere to
  295  committing the offense as a delinquent act. The court may only
  296  order sealing of a criminal history record pertaining to one
  297  arrest or one incident of alleged criminal activity, except as
  298  provided in this section. The court may, at its sole discretion,
  299  order the sealing of a criminal history record pertaining to
  300  more than one arrest if the additional arrests directly relate
  301  to the original arrest. If the court intends to order the
  302  sealing of records pertaining to such additional arrests, such
  303  intent must be specified in the order. A criminal justice agency
  304  may not seal any record pertaining to such additional arrests if
  305  the order to seal does not articulate the intention of the court
  306  to seal records pertaining to more than one arrest. This section
  307  does not prevent the court from ordering the sealing of only a
  308  portion of a criminal history record pertaining to one arrest or
  309  one incident of alleged criminal activity. Notwithstanding any
  310  law to the contrary, a criminal justice agency may comply with
  311  laws, court orders, and official requests of other jurisdictions
  312  relating to sealing, correction, or confidential handling of
  313  criminal history records or information derived therefrom. This
  314  section does not confer any right to the sealing of any criminal
  315  history record, and any request for sealing a criminal history
  316  record may be denied at the sole discretion of the court.
  317         (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal
  318  history record of a minor or an adult which is ordered sealed by
  319  a court of competent jurisdiction pursuant to this section is
  320  confidential and exempt from the provisions of s. 119.07(1) and
  321  s. 24(a), Art. I of the State Constitution and is available only
  322  to the person who is the subject of the record, to the subject’s
  323  attorney, to criminal justice agencies for their respective
  324  criminal justice purposes, which include conducting a criminal
  325  history background check for approval of firearms purchases or
  326  transfers as authorized by state or federal law, to judges in
  327  the state courts system for the purpose of assisting them in
  328  their case-related decisionmaking responsibilities, as set forth
  329  in s. 943.053(5), or to those entities set forth in
  330  subparagraphs (a)1., 4., 5., 6., and 8. for their respective
  331  licensing, access authorization, and employment purposes.
  332         (a) The subject of a criminal history record sealed under
  333  this section or under other provisions of law, including former
  334  s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
  335  deny or fail to acknowledge the arrests covered by the sealed
  336  record, except when the subject of the record:
  337         1. Is a candidate for employment with a criminal justice
  338  agency;
  339         2. Is a defendant in a criminal prosecution;
  340         3. Concurrently or subsequently petitions for relief under
  341  this section, s. 943.0583, or s. 943.0585;
  342         4. Is a candidate for admission to The Florida Bar;
  343         5. Is seeking to be employed or licensed by or to contract
  344  with the Department of Children and Families, the Division of
  345  Vocational Rehabilitation within the Department of Education,
  346  the Agency for Health Care Administration, the Agency for
  347  Persons with Disabilities, the Department of Health, the
  348  Department of Elderly Affairs, or the Department of Juvenile
  349  Justice or to be employed or used by such contractor or licensee
  350  in a sensitive position having direct contact with children, the
  351  disabled, or the elderly;
  352         6. Is seeking to be employed or licensed by the Department
  353  of Education, any district school board, any university
  354  laboratory school, any charter school, any private or parochial
  355  school, or any local governmental entity that licenses child
  356  care facilities; or
  357         7. Is attempting to purchase a firearm from a licensed
  358  importer, licensed manufacturer, or licensed dealer and is
  359  subject to a criminal history check under state or federal law;
  360  or.
  361         8. Is seeking to be appointed as a guardian pursuant to s.
  362  744.3125.
  363         (c) Information relating to the existence of a sealed
  364  criminal record provided in accordance with the provisions of
  365  paragraph (a) is confidential and exempt from the provisions of
  366  s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
  367  except that the department shall disclose the sealed criminal
  368  history record to the entities set forth in subparagraphs (a)1.,
  369  4., 5., 6., and 8. for their respective licensing, access
  370  authorization, and employment purposes. It is unlawful for any
  371  employee of an entity set forth in subparagraph (a)1.,
  372  subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or
  373  subparagraph (a)8. to disclose information relating to the
  374  existence of a sealed criminal history record of a person
  375  seeking employment, access authorization, or licensure with such
  376  entity or contractor, except to the person to whom the criminal
  377  history record relates or to persons having direct
  378  responsibility for employment, access authorization, or
  379  licensure decisions. Any person who violates the provisions of
  380  this paragraph commits a misdemeanor of the first degree,
  381  punishable as provided in s. 775.082 or s. 775.083.
  382         Section 8. This act shall take effect July 1, 2014.