Florida Senate - 2015                        COMMITTEE AMENDMENT
       Bill No. CS for SB 318
       
       
       
       
       
       
                                Ì320628.Î320628                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                   Comm: WD            .                                
                  04/02/2015           .                                
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       Appropriations Subcommittee on Criminal and Civil Justice (Soto)
       recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsection (3) of section 709.2109, Florida
    6  Statutes, is amended to read:
    7         709.2109 Termination or suspension of power of attorney or
    8  agent’s authority.—
    9         (3) If any person initiates judicial proceedings to
   10  determine the principal’s incapacity or for the appointment of a
   11  guardian advocate, the authority granted under the power of
   12  attorney is suspended until the petition is dismissed or
   13  withdrawn or the court enters an order authorizing the agent to
   14  exercise one or more powers granted under the power of attorney.
   15  However, if the agent named in the power of attorney is the
   16  principal’s parent, spouse, child, or grandchild, the authority
   17  under the power of attorney is not suspended unless a verified
   18  motion in accordance with s. 744.3203 is also filed.
   19         (a) If an emergency arises after initiation of proceedings
   20  to determine incapacity and before adjudication regarding the
   21  principal’s capacity, the agent may petition the court in which
   22  the proceeding is pending for authorization to exercise a power
   23  granted under the power of attorney. The petition must set forth
   24  the nature of the emergency, the property or matter involved,
   25  and the power to be exercised by the agent.
   26         (b) Notwithstanding the provisions of this section, unless
   27  otherwise ordered by the court, a proceeding to determine
   28  incapacity does not affect the authority of the agent to make
   29  health care decisions for the principal, including, but not
   30  limited to, those provided in chapter 765. If the principal has
   31  executed a health care advance directive designating a health
   32  care surrogate, the terms of the directive control if the
   33  directive and the power of attorney are in conflict unless the
   34  power of attorney is later executed and expressly states
   35  otherwise.
   36         Section 2. Subsection (5) is added to section 744.107,
   37  Florida Statutes, to read:
   38         744.107 Court monitors.—
   39         (5) The court may appoint the office of criminal conflict
   40  and civil regional counsel as monitor if the ward is indigent.
   41         Section 3. Subsection (6) is added to section 744.1075,
   42  Florida Statutes, to read:
   43         744.1075 Emergency court monitor.—
   44         (6) The court may appoint the office of criminal conflict
   45  and civil regional counsel as monitor if the ward is indigent.
   46         Section 4. Subsections (5) and (8) of section 744.108,
   47  Florida Statutes, are amended, and subsection (9) is added to
   48  that section, to read:
   49         744.108 Guardian Guardian’s and attorney attorney’s fees
   50  and expenses.—
   51         (5) All petitions for guardian guardian’s and attorney
   52  attorney’s fees and expenses must be accompanied by an itemized
   53  description of the services performed for the fees and expenses
   54  sought to be recovered.
   55         (8) When court proceedings are instituted to review or
   56  determine a guardian’s or an attorney’s fees under subsection
   57  (2), such proceedings are part of the guardianship
   58  administration process and the costs, including costs and
   59  attorney fees for the guardian’s attorney, an attorney appointed
   60  under s. 744.331(2), or an attorney who has rendered services to
   61  the ward, shall be determined by the court and paid from the
   62  assets of the guardianship estate unless the court finds the
   63  requested compensation under subsection (2) to be substantially
   64  unreasonable.
   65         (9) The court may determine that a request for compensation
   66  by the guardian, the guardian’s attorney, a person employed by
   67  the guardian, an attorney appointed under s. 744.331(2), or an
   68  attorney who has rendered services to the ward, is reasonable
   69  without receiving expert testimony. A person or party may offer
   70  expert testimony for or against a request for compensation after
   71  giving notice to interested persons. Reasonable expert witness
   72  fees shall be awarded by the court and paid from the assets of
   73  the guardianship estate using the standards in subsection (8).
   74         Section 5. Section 744.3025, Florida Statutes, is amended
   75  to read:
   76         744.3025 Claims of minors.—
   77         (1)(a) The court may appoint a guardian ad litem to
   78  represent the minor’s interest before approving a settlement of
   79  the minor’s portion of the claim in a any case in which a minor
   80  has a claim for personal injury, property damage, wrongful
   81  death, or other cause of action in which the gross settlement of
   82  the claim exceeds $15,000 if the court believes a guardian ad
   83  litem is necessary to protect the minor’s interest.
   84         (b) Except as provided in paragraph (e), the court shall
   85  appoint a guardian ad litem to represent the minor’s interest
   86  before approving a settlement of the minor’s claim in a any case
   87  in which the gross settlement involving a minor equals or
   88  exceeds $50,000.
   89         (c) The appointment of the guardian ad litem must be
   90  without the necessity of bond or notice.
   91         (d) The duty of the guardian ad litem is to protect the
   92  minor’s interests as described in the Florida Probate Rules.
   93         (e) A court need not appoint a guardian ad litem for the
   94  minor if a guardian of the minor has previously been appointed
   95  and that guardian has no potential adverse interest to the
   96  minor. A court may appoint a guardian ad litem if the court
   97  believes a guardian ad litem is necessary to protect the
   98  interests of the minor.
   99         (2) Unless waived, the court shall award reasonable fees
  100  and costs to the guardian ad litem to be paid out of the gross
  101  proceeds of the settlement.
  102         (3) A settlement of a claim pursuant to this section is
  103  subject to the confidentiality provisions of this chapter.
  104         Section 6. Subsections (2) through (8) of section 744.3031,
  105  Florida Statutes, are renumbered as subsections (3) through (9),
  106  respectively, and a new subsection (2) is added to that section,
  107  and present subsection (8) of that section is amended, to read:
  108         744.3031 Emergency temporary guardianship.—
  109         (2) Notice of filing of the petition for appointment of an
  110  emergency temporary guardian and a hearing on the petition must
  111  be served on the alleged incapacitated person and on the alleged
  112  incapacitated person’s attorney at least 24 hours before the
  113  hearing on the petition is commenced, unless the petitioner
  114  demonstrates that substantial harm to the alleged incapacitated
  115  person would occur if the 24-hour notice is given.
  116         (9)(8)(a) An emergency temporary guardian shall file a
  117  final report no later than 30 days after the expiration of the
  118  emergency temporary guardianship.
  119         (b)A court may not authorize any final payment of the
  120  emergency temporary guardian fees or the fees of his or her
  121  attorney until the final report is filed.
  122         (c)1.If the final report is not timely filed, the court
  123  shall issue to the emergency temporary guardian an order to show
  124  cause which requires the emergency temporary guardian to appear
  125  before the court and explain why the court should not take
  126  further action. The order must specify the time and place of the
  127  hearing within a reasonable time after service of the order to
  128  allow for the preparation of a defense.
  129         2. At any time before the hearing on the order to show
  130  cause, the court may suspend the emergency temporary guardian if
  131  he or she has become a successor guardian, appoint a guardian ad
  132  litem, or issue any other appropriate order to protect the
  133  physical or mental health, safety, or property of the ward. A
  134  copy of any such order shall be transmitted by the court or
  135  under its direction to all parties at the time of entry of the
  136  order or injunction.
  137         3. After the hearing on the order to show cause, the court
  138  may impose sanctions on the emergency temporary guardian or take
  139  any other action authorized by law, including, but not limited
  140  to, entering a judgment of contempt; ordering an accounting;
  141  freezing assets; referring the case to local law enforcement
  142  agencies or the state attorney; filing an abuse, neglect, or
  143  exploitation complaint with the Department of Children and
  144  Families; and initiating proceedings to remove the emergency
  145  temporary guardian if he or she has become a successor guardian.
  146         (d)(b) If an emergency temporary guardian is a guardian for
  147  the property, the final report must consist of a verified
  148  inventory of the property, as provided in s. 744.365, as of the
  149  date the letters of emergency temporary guardianship were
  150  issued, a final accounting that gives a full and correct account
  151  of the receipts and disbursements of all the property of the
  152  ward over which the guardian had control, and a statement of the
  153  property of the ward on hand at the end of the emergency
  154  temporary guardianship. If the emergency temporary guardian
  155  becomes the successor guardian of the property, the final report
  156  must satisfy the requirements of the initial guardianship report
  157  for the guardian of the property as provided in s. 744.362.
  158         (e)(c) If the emergency temporary guardian is a guardian of
  159  the person, the final report must summarize the activities of
  160  the temporary guardian with regard to residential placement,
  161  medical condition, mental health and rehabilitative services,
  162  and the social condition of the ward to the extent of the
  163  authority granted to the temporary guardian in the letters of
  164  guardianship. If the emergency temporary guardian becomes the
  165  successor guardian of the person, the report must satisfy the
  166  requirements of the initial report for a guardian of the person
  167  as stated in s. 744.362.
  168         (f)(d) A copy of the final report of the emergency
  169  temporary guardianship shall be served on the successor guardian
  170  and the ward.
  171         Section 7. Subsection (7) is added to section 744.309,
  172  Florida Statutes, to read:
  173         744.309 Who may be appointed guardian of a resident ward.—
  174         (7) FOR-PROFIT CORPORATE GUARDIAN.—A for-profit corporate
  175  guardian existing under the laws of this state is qualified to
  176  act as guardian of a ward if the entity is qualified to do
  177  business in the state, is wholly owned by the person who is the
  178  circuit’s public guardian in the circuit where the corporate
  179  guardian is appointed, and has met the registration requirements
  180  of s. 744.1083, provided that the for-profit corporate guardian:
  181         (a) Posts and maintains a blanket fiduciary bond of at
  182  least $250,000 with the clerk of the circuit court in the county
  183  in which the corporate guardian has its principal place of
  184  business. The corporate guardian shall provide proof of the
  185  fiduciary bond to the clerks of each additional circuit court in
  186  which he or she is serving as a guardian. The bond must cover
  187  all wards for whom the corporation has been appointed as a
  188  guardian at any given time. The liability of the provider of the
  189  bond is limited to the face value of the bond, regardless of the
  190  number of wards for whom the corporation is acting as a
  191  guardian. The terms of the bond must cover the acts or omissions
  192  of each agent or employee of the corporation who has direct
  193  contact with the ward or access to the assets of the
  194  guardianship. The bond must be payable to the Governor and his
  195  or her successors in office and be conditioned on the faithful
  196  performance of all duties of a guardian under this chapter. The
  197  bond is in lieu of and not in addition to the bond required
  198  under s. 744.1085 but is in addition to any bonds required under
  199  s. 744.351. The expenses incurred to satisfy the bonding
  200  requirements of this section may not be paid with the assets of
  201  any ward; or
  202         (b) Maintains a liability insurance policy that covers any
  203  losses sustained by the guardianship caused by errors,
  204  omissions, or any intentional misconduct committed by the
  205  corporation’s officers or agents. The policy must cover all
  206  wards for whom the corporation is acting as a guardian agent for
  207  losses up to $250,000. The terms of the policy must cover acts
  208  or omissions of each agent or employee of the corporation who
  209  has direct contact with the principal or access to the assets of
  210  the guardianship. The corporate guardian shall provide proof of
  211  the fiduciary bond to the clerk of each additional circuit court
  212  in which he or she is serving as a guardian. A for-profit
  213  corporation appointed as guardian before July 1, 2015, is also
  214  qualified to serve as a guardian in the particular guardianships
  215  in which the corporation has already been appointed as guardian.
  216         Section 8. Section 744.3115, Florida Statutes, is amended
  217  to read:
  218         744.3115 Advance directives for health care.—In each
  219  proceeding in which a guardian is appointed under this chapter,
  220  the court shall determine whether the ward, prior to incapacity,
  221  has executed any valid advance directive under chapter 765. If
  222  any advance directive exists, the court shall specify in its
  223  order and letters of guardianship what authority, if any, the
  224  guardian shall exercise over the ward with regard to health care
  225  decisions and what authority, if any, the surrogate shall
  226  continue to exercise over the ward with regard to health care
  227  decisions surrogate. Pursuant to the grounds listed in s.
  228  765.105, the court, upon its own motion, may, with notice to the
  229  surrogate and any other appropriate parties, modify or revoke
  230  the authority of the surrogate to make health care decisions for
  231  the ward. Any order revoking or modifying the authority of the
  232  surrogate must be supported by specific written findings of
  233  fact. If the court order provides that the guardian is
  234  responsible for making health care decisions for the ward, the
  235  guardian shall assume the responsibilities of the surrogate
  236  which are provided in s. 765.205. For purposes of this section,
  237  the term “health care decision” has the same meaning as in s.
  238  765.101.
  239         Section 9. Section 744.312, Florida Statutes, is reordered
  240  and amended to read:
  241         744.312 Considerations in appointment of guardian.—
  242         (1)(4) If the person designated is qualified to serve
  243  pursuant to s. 744.309, the court shall appoint any standby
  244  guardian or preneed guardian, unless the court determines that
  245  appointing such person is contrary to the best interests of the
  246  ward.
  247         (2)(1)If a guardian cannot be appointed under subsection
  248  (1) Subject to the provisions of subsection (4), the court may
  249  appoint any person who is fit and proper and qualified to act as
  250  guardian, whether related to the ward or not.
  251         (2) The court shall give preference to the appointment of a
  252  person who:
  253         (a) Is related by blood or marriage to the ward;
  254         (b) Has educational, professional, or business experience
  255  relevant to the nature of the services sought to be provided;
  256         (c) Has the capacity to manage the financial resources
  257  involved; or
  258         (d) Has the ability to meet the requirements of the law and
  259  the unique needs of the individual case.
  260         (3) The court shall also:
  261         (a) Consider the wishes expressed by an incapacitated
  262  person as to who shall be appointed guardian.;
  263         (b) Consider the preference of a minor who is age 14 or
  264  over as to who should be appointed guardian.;
  265         (c) Consider any person designated as guardian in any will
  266  in which the ward is a beneficiary.
  267         (d) Consider the wishes of the ward’s next of kin, when the
  268  ward cannot express a preference.
  269         (4) Except when a standby guardian or a preneed guardian is
  270  appointed by the court:
  271         (a) In each case when a court appoints a professional
  272  guardian and does not use a rotation system for such
  273  appointment, the court must make specific findings of fact
  274  stating why the person was selected as guardian in the
  275  particular matter involved. The findings must reference each of
  276  the factors listed in subsections (2) and (3).
  277         (b) An emergency temporary guardian who is a professional
  278  guardian may not be appointed as the permanent guardian of a
  279  ward unless one of the next of kin of the alleged incapacitated
  280  person or the ward requests that the professional guardian be
  281  appointed as permanent guardian. The court may waive the
  282  limitations of this paragraph if the special requirements of the
  283  guardianship demand that the court appoint a guardian because he
  284  or she has special talent or specific prior experience. The
  285  court must make specific findings of fact that justify a finding
  286  that there are special requirements requiring an appointment
  287  without reference to this limitation.
  288         (5) The court may not give preference to the appointment of
  289  a person under subsection (2) based solely on the fact that such
  290  person was appointed by the court to serve as an emergency
  291  temporary guardian.
  292         Section 10. Section 744.3203, Florida Statutes, is created
  293  to read:
  294         744.3203 Suspension of power of attorney before incapacity
  295  determination.—
  296         (1) At any time during proceedings to determine incapacity
  297  but before the entry of an order determining incapacity, the
  298  authority granted under an alleged incapacitated person’s power
  299  of attorney to a parent, spouse, child, or grandchild is
  300  suspended when the petitioner files a motion stating that a
  301  specific power of attorney should be suspended for any of the
  302  following grounds:
  303         (a) The agent’s decisions are not in accord with the
  304  alleged incapacitated person’s known desires.
  305         (b) The power of attorney is invalid.
  306         (c) The agent has failed to discharge his or her duties or
  307  incapacity or illness renders the agent incapable of discharging
  308  duties.
  309         (d) The agent has abused powers.
  310         (e) There is a danger that the property of the alleged
  311  incapacitated person may be wasted, misappropriated, or lost
  312  unless the authority under the power of attorney is suspended.
  313  
  314  Grounds for suspending a power of attorney do not include the
  315  existence of a dispute between the agent and the petitioner
  316  which is more appropriate for resolution in some other forum or
  317  a legal proceeding other than a guardianship proceeding.
  318         (2) The motion must:
  319         (a) Identify one or more of the grounds in subsection (1);
  320         (b) Include specific statements of fact showing that
  321  grounds exist to justify the relief sought; and
  322         (c) Include the following statement: “Under penalties of
  323  perjury, I declare that I have read the foregoing motion and
  324  that the facts stated in it are true to the best of my knowledge
  325  and belief,” followed by the signature of the petitioner.
  326         (3) Upon the filing of a response to the motion by the
  327  agent under the power of attorney, the court shall schedule the
  328  motion for an expedited hearing. Unless an emergency arises and
  329  the agent’s response sets forth the nature of the emergency, the
  330  property or matter involved, and the power to be exercised by
  331  the agent, notice must be given to all interested persons, the
  332  alleged incapacitated person, and the alleged incapacitated
  333  person’s attorney. The court order following the hearing must
  334  set forth what powers the agent is permitted to exercise, if
  335  any, pending the outcome of the petition to determine
  336  incapacity.
  337         (4) In addition to any other remedy authorized by law, a
  338  court may award reasonable attorney fees and costs to an agent
  339  who successfully challenges the suspension of the power of
  340  attorney if the petitioner’s motion was made in bad faith.
  341         (5) The suspension of authority granted to persons other
  342  than a parent, spouse, child, or grandchild shall be as provided
  343  in s. 709.2109.
  344         Section 11. Subsection (6) and paragraph (c) of subsection
  345  (7) of section 744.331, Florida Statutes, are amended to read:
  346         744.331 Procedures to determine incapacity.—
  347         (6) ORDER DETERMINING INCAPACITY.—If, after making findings
  348  of fact on the basis of clear and convincing evidence, the court
  349  finds that a person is incapacitated with respect to the
  350  exercise of a particular right, or all rights, the court shall
  351  enter a written order determining such incapacity. In
  352  determining incapacity, the court shall consider the person’s
  353  unique needs and abilities and may only remove those rights that
  354  the court finds the person does not have the capacity to
  355  exercise. A person is determined to be incapacitated only with
  356  respect to those rights specified in the order.
  357         (a) The court shall make the following findings:
  358         1. The exact nature and scope of the person’s incapacities;
  359         2. The exact areas in which the person lacks capacity to
  360  make informed decisions about care and treatment services or to
  361  meet the essential requirements for her or his physical or
  362  mental health or safety;
  363         3. The specific legal disabilities to which the person is
  364  subject; and
  365         4. The specific rights that the person is incapable of
  366  exercising.
  367         (b) When an order determines that a person is incapable of
  368  exercising delegable rights, the court must consider and find
  369  whether there is an alternative to guardianship that will
  370  sufficiently address the problems of the incapacitated person. A
  371  guardian must be appointed to exercise the incapacitated
  372  person’s delegable rights unless the court finds there is an
  373  alternative. A guardian may not be appointed if the court finds
  374  there is an alternative to guardianship which will sufficiently
  375  address the problems of the incapacitated person. If the court
  376  finds there is not an alternative to guardianship that
  377  sufficiently addresses the problems of the incapacitated person,
  378  a guardian must be appointed to exercise the incapacitated
  379  person’s delegable rights.
  380         (c) In determining that a person is totally incapacitated,
  381  the order must contain findings of fact demonstrating that the
  382  individual is totally without capacity to care for herself or
  383  himself or her or his property.
  384         (d) An order adjudicating a person to be incapacitated
  385  constitutes proof of such incapacity until further order of the
  386  court.
  387         (e) After the order determining that the person is
  388  incapacitated has been filed with the clerk, it must be served
  389  on the incapacitated person. The person is deemed incapacitated
  390  only to the extent of the findings of the court. The filing of
  391  the order is notice of the incapacity. An incapacitated person
  392  retains all rights not specifically removed by the court.
  393         (f) Upon the filing of a verified statement by an
  394  interested person stating:
  395         1. That he or she has a good faith belief that the alleged
  396  incapacitated person’s trust, trust amendment, or durable power
  397  of attorney is invalid; and
  398         2. A reasonable factual basis for that belief,
  399  
  400  the trust, trust amendment, or durable power of attorney shall
  401  not be deemed to be an alternative to the appointment of a
  402  guardian. The appointment of a guardian does not limit the
  403  court’s power to determine that certain authority granted by a
  404  durable power of attorney is to remain exercisable by the agent
  405  attorney in fact.
  406         (7) FEES.—
  407         (c) If the petition is dismissed or denied:,
  408         1. The fees of the examining committee shall be paid upon
  409  court order as expert witness fees under s. 29.004(6).
  410         2. Costs and attorney attorney’s fees of the proceeding may
  411  be assessed against the petitioner if the court finds the
  412  petition to have been filed in bad faith. The petitioner shall
  413  also reimburse the state courts system for any amounts paid
  414  under subparagraph 1. upon such a finding.
  415         Section 12. Subsection (4) of section 744.344, Florida
  416  Statutes, is amended to read:
  417         744.344 Order of appointment.—
  418         (4) If a petition for the appointment of a guardian has not
  419  been filed or ruled upon at the time of the hearing on the
  420  petition to determine capacity, the court may appoint an
  421  emergency temporary guardian in the manner and for the purposes
  422  specified in s. 744.3031.
  423         Section 13. Section 744.345, Florida Statutes, is amended
  424  to read:
  425         744.345 Letters of guardianship.—Letters of guardianship
  426  shall be issued to the guardian and shall specify whether the
  427  guardianship pertains to the person, or the property, or both,
  428  of the ward. The letters must state whether the guardianship is
  429  plenary or limited, and, if limited, the letters must state the
  430  powers and duties of the guardian. If the guardianship is
  431  limited, The letters shall state whether or not and to what
  432  extent the guardian is authorized to act on behalf of the ward
  433  with regard to any advance directive previously executed by the
  434  ward.
  435         Section 14. Section 744.359, Florida Statutes, is created
  436  to read:
  437         744.359 Abuse, neglect, or exploitation by a guardian.—
  438         (1) A guardian may not abuse, neglect, or exploit a ward.
  439         (2) A guardian has committed exploitation when the
  440  guardian:
  441         (a) Commits fraud in obtaining appointment as a guardian;
  442         (b) Abuses his or her powers; or
  443         (c) Wastes, embezzles, or intentionally mismanages the
  444  assets of the ward.
  445         (3) A person who believes that a guardian is abusing,
  446  neglecting, or exploiting a ward shall report the incident to
  447  the central abuse hotline of the Department of Children and
  448  Families.
  449         (4) This section shall be interpreted in conformity with s.
  450  825.103.
  451         Section 15. Section 744.361, Florida Statutes, is amended
  452  to read:
  453         744.361 Powers and duties of guardian.—
  454         (1) The guardian of an incapacitated person is a fiduciary
  455  and may exercise only those rights that have been removed from
  456  the ward and delegated to the guardian. The guardian of a minor
  457  shall exercise the powers of a plenary guardian.
  458         (2) The guardian shall act within the scope of the
  459  authority granted by the court and as provided by law.
  460         (3) The guardian shall act in good faith.
  461         (4) A guardian may not act in a manner that is contrary to
  462  the ward’s best interests under the circumstances.
  463         (5) A guardian who has special skills or expertise, or is
  464  appointed in reliance upon the guardian’s representation that
  465  the guardian has special skills or expertise, shall use those
  466  special skills or expertise when acting on behalf of the ward.
  467         (6)(2) The guardian shall file an initial guardianship
  468  report in accordance with s. 744.362.
  469         (7)(3) The guardian shall file a guardianship report
  470  annually in accordance with s. 744.367.
  471         (8)(4) The guardian of the person shall implement the
  472  guardianship plan.
  473         (9)(5) When two or more guardians have been appointed, the
  474  guardians shall consult with each other.
  475         (10)(6) A guardian who is given authority over any property
  476  of the ward shall:
  477         (a) Protect and preserve the property and invest it
  478  prudently as provided in chapter 518, apply it as provided in s.
  479  744.397, and keep clear, distinct, and accurate records of the
  480  administration of the ward’s property account for it faithfully.
  481         (b) Perform all other duties required of him or her by law.
  482         (c) At the termination of the guardianship, deliver the
  483  property of the ward to the person lawfully entitled to it.
  484         (11)(7) The guardian shall observe the standards in dealing
  485  with the guardianship property that would be observed by a
  486  prudent person dealing with the property of another, and, if the
  487  guardian has special skills or is named guardian on the basis of
  488  representations of special skills or expertise, he or she is
  489  under a duty to use those skills.
  490         (12)(8) The guardian, if authorized by the court, shall
  491  take possession of all of the ward’s property and of the rents,
  492  income, issues, and profits from it, whether accruing before or
  493  after the guardian’s appointment, and of the proceeds arising
  494  from the sale, lease, or mortgage of the property or of any
  495  part. All of the property and the rents, income, issues, and
  496  profits from it are assets in the hands of the guardian for the
  497  payment of debts, taxes, claims, charges, and expenses of the
  498  guardianship and for the care, support, maintenance, and
  499  education of the ward or the ward’s dependents, as provided for
  500  under the terms of the guardianship plan or by law.
  501         (13) Recognizing that every individual has unique needs and
  502  abilities, a guardian who is given authority over a ward’s
  503  person shall, as appropriate under the circumstances:
  504         (a) Consider the expressed desires of the ward as known by
  505  the guardian when making decisions that affect the ward.
  506         (b) Allow the ward to maintain contact with family and
  507  friends unless the guardian believes that such contact may cause
  508  harm to the ward.
  509         (c) Not restrict the physical liberty of the ward more than
  510  reasonably necessary to protect the ward or another person from
  511  serious physical injury, illness, or disease.
  512         (d) Assist the ward in developing or regaining his or her
  513  own capacity, if medically possible.
  514         (e) Notify the court if the guardian believes that the ward
  515  has regained capacity and that one or more of the rights that
  516  have been removed should be restored to the ward.
  517         (f) To the extent applicable, make provision for the
  518  medical, mental, rehabilitative, or personal care services for
  519  the welfare of the ward.
  520         (g) To the extent applicable, acquire a clear understanding
  521  of the risks and benefits of a recommended course of health care
  522  treatment before making a health care decision.
  523         (h) Evaluate the ward’s medical and health care options,
  524  financial resources, and desires when making residential
  525  decisions that are best suited for the current needs of the
  526  ward.
  527         (i) Advocate on behalf of the ward in institutional and
  528  other residential settings and regarding access to home and
  529  community-based services.
  530         (j) Acquire an understanding of the available residential
  531  options and give priority to home and other community-based
  532  services and settings when not inconsistent with the person’s
  533  goals, needs, and preferences.
  534         (14)(9) A professional guardian must ensure that each of
  535  the guardian’s wards is personally visited by the guardian or
  536  one of the guardian’s professional staff at least once each
  537  calendar quarter. During the personal visit, the guardian or the
  538  guardian’s professional staff person shall assess:
  539         (a) The ward’s physical appearance and condition.
  540         (b) The appropriateness of the ward’s current living
  541  situation.
  542         (c) The need for any additional services and the necessity
  543  for continuation of existing services, taking into consideration
  544  all aspects of social, psychological, educational, direct
  545  service, health, and personal care needs.
  546         (d) The nature and extent of visitation and communication
  547  with the ward’s family and friends.
  548  
  549  This subsection does not apply to a professional guardian who
  550  has been appointed only as guardian of the property.
  551         Section 16. Subsection (1) of section 744.367, Florida
  552  Statutes, is amended to read:
  553         744.367 Duty to file annual guardianship report.—
  554         (1) Unless the court requires filing on a calendar-year
  555  basis, each guardian of the person shall file with the court an
  556  annual guardianship plan at least 60 days, but no more than
  557  within 90 days, before after the last day of the anniversary
  558  month that the letters of guardianship were signed, and the plan
  559  must cover the coming fiscal year, ending on the last day in
  560  such anniversary month. If the court requires calendar-year
  561  filing, the guardianship plan for the forthcoming calendar year
  562  must be filed on or after September 1 but no later than December
  563  1 of the current year before April 1 of each year.
  564         Section 17. Subsection (8) of section 744.369, Florida
  565  Statutes, is amended to read:
  566         744.369 Judicial review of guardianship reports.—
  567         (8) The approved report constitutes the authority for the
  568  guardian to act in the forthcoming year. The powers of the
  569  guardian are limited by the terms of the report. The annual
  570  report may not grant additional authority to the guardian
  571  without a hearing, as provided for in s. 744.331, to determine
  572  that the ward is incapacitated to act in that matter. Unless the
  573  court orders otherwise, the guardian may continue to act under
  574  authority of the last-approved report until the forthcoming
  575  year’s report is approved.
  576         Section 18. Subsection (1) of section 744.3715, Florida
  577  Statutes, is amended to read:
  578         744.3715 Petition for interim judicial review.—
  579         (1) At any time, any interested person, including the ward,
  580  may petition the court for review alleging that the guardian is
  581  not complying with the guardianship plan, or is exceeding his or
  582  her authority under the guardianship plan, is acting in a manner
  583  contrary to s. 744.361, is denying visitation between the ward
  584  and his or her relatives in violation of s. 744.361(13), or and
  585  the guardian is not acting in the best interest of the ward. The
  586  petition for review must state the nature of the objection to
  587  the guardian’s action or proposed action. Upon the filing of any
  588  such petition, the court shall review the petition and act upon
  589  it expeditiously.
  590         Section 19. Paragraphs (a) and (b) of subsection (3) of
  591  section 744.464, Florida Statutes, are amended, and subsection
  592  (4) is added to that section, to read:
  593         744.464 Restoration to capacity.—
  594         (3) ORDER OF RESTORATION.—
  595         (a) If no objections are filed, and the court is satisfied
  596  that with the medical examination establishes by a preponderance
  597  of the evidence that restoration of all or some of the ward’s
  598  rights is appropriate, the court shall enter an order of
  599  restoration of capacity, restoring all or some of the rights
  600  which were removed from the ward in accordance with those
  601  findings. The order must be issued within 30 days after the
  602  medical report is filed.
  603         (b) At the conclusion of a hearing, conducted pursuant to
  604  s. 744.1095, the court shall make specific findings of fact and,
  605  based on a preponderance of the evidence, enter an order either
  606  denying the suggestion of capacity or restoring all or some of
  607  the rights which were removed from the ward. The ward has the
  608  burden of proving by a preponderance of the evidence that the
  609  restoration of capacity is warranted.
  610         (4) TIMELINESS OF HEARING.—The court shall give priority to
  611  any suggestion of capacity and shall advance the cause on the
  612  calendar.
  613         Section 20. Sections 709.2109 and 744.3203, Florida
  614  Statutes, as created by this act, apply to all proceedings filed
  615  on or after July 1, 2015. The amendments made by this act to ss.
  616  744.107, 744.1075, 744.108, 744.3025, 744.3031, 744.309,
  617  744.3115, 744.312, 744.331, 744.344, 744.345, 744.359, 744.361,
  618  744.367, 744.369, 744.3715, and 744.464, Florida Statutes, apply
  619  to all proceedings pending on July 1, 2015.
  620         Section 21. This act shall take effect July 1, 2015.
  621  
  622  ================= T I T L E  A M E N D M E N T ================
  623  And the title is amended as follows:
  624         Delete everything before the enacting clause
  625  and insert:
  626                        A bill to be entitled                      
  627         An act relating to guardianship proceedings; amending
  628         s. 709.2109, F.S.; requiring the filing of a motion
  629         before termination or suspension of a power of
  630         attorney in proceedings to determine a principal’s
  631         incapacity or for appointment of a guardian advocate
  632         under certain circumstances; amending ss. 744.107 and
  633         744.1075, F.S.; authorizing a court to appoint the
  634         office of criminal conflict and civil regional counsel
  635         as a court monitor in guardianship proceedings;
  636         amending s. 744.108, F.S.; providing that fees and
  637         costs incurred by an attorney who has rendered
  638         services to a ward in compensation proceedings are
  639         payable from guardianship assets; providing that
  640         expert testimony is not required in proceedings to
  641         determine compensation for an attorney or guardian;
  642         requiring a person offering expert testimony to
  643         provide notice to interested persons; providing that
  644         expert witness fees are recoverable by the prevailing
  645         interested person; amending s. 744.3025, F.S.;
  646         providing that a court may appoint a guardian ad litem
  647         to represent a minor if necessary to protect the
  648         minor’s interest in a settlement; providing that a
  649         settlement of a minor’s claim is subject to certain
  650         confidentiality provisions; amending s. 744.3031,
  651         F.S.; requiring notification of an alleged
  652         incapacitated person and such person’s attorney of a
  653         petition for appointment of an emergency temporary
  654         guardian before a hearing on the petition commences;
  655         prohibiting the final payment of the emergency
  656         temporary guardian fees and his or her attorney fees
  657         until the final report is filed; requiring a court to
  658         issue an order to show cause to an emergency temporary
  659         guardian who fails to timely file his or her final
  660         report; authorizing a court to take certain actions to
  661         protect the ward before a hearing on an order to show
  662         cause; requiring a copy of such order to be
  663         transmitted to certain parties; authorizing the court
  664         to impose sanctions on the emergency temporary
  665         guardian or take certain other actions after a show
  666         cause hearing; amending s. 744.309, F.S.; providing
  667         that certain for-profit corporations may act as
  668         guardian of a person; providing conditions; requiring
  669         the posting and maintenance of a fiduciary bond;
  670         limiting liability; requiring the corporation to
  671         maintain certain insurance coverage; providing for
  672         certain grandfathered guardianships; amending s.
  673         744.3115, F.S.; directing the court to specify
  674         authority for health care decisions with respect to a
  675         ward’s advance directive; amending s. 744.312, F.S.;
  676         prohibiting a court from giving preference to the
  677         appointment of certain persons as guardians; providing
  678         requirements for the appointment of professional
  679         guardians; amending s. 744.3203, F.S.; providing
  680         grounds for filing a motion for suspension of a power
  681         of attorney before determination of incapacity;
  682         providing criteria for such motion; requiring a
  683         hearing under certain conditions; providing for the
  684         award of attorney fees and costs; amending s. 744.331,
  685         F.S.; directing the court to consider certain factors
  686         when determining incapacity; requiring that the
  687         examining committee be paid from state funds as court
  688         appointed expert witnesses if a petition for
  689         incapacity is dismissed; requiring that a petitioner
  690         reimburse the state for such expert witness fees if
  691         the court finds the petition to have been filed in bad
  692         faith; amending s. 744.344, F.S.; providing conditions
  693         under which the court is authorized to appoint an
  694         emergency temporary guardian; amending s. 744.345,
  695         F.S.; revising provisions relating to letters of
  696         guardianship; creating s. 744.359, F.S.; prohibiting
  697         abuse, neglect, or exploitation of a ward by a
  698         guardian; requiring reporting thereof to the
  699         Department of Children and Families central abuse
  700         hotline; providing for interpretation; amending s.
  701         744.361, F.S.; providing additional powers and duties
  702         of a guardian; amending s. 744.367, F.S.; revising the
  703         period during which a guardian must file an annual
  704         guardianship plan with the court; amending s. 744.369,
  705         F.S.; providing for the continuance of a guardian’s
  706         authority to act under an expired annual report under
  707         certain circumstances; amending s. 744.3715, F.S.;
  708         providing that an interested party may petition the
  709         court regarding a guardian’s failure to comply with
  710         the duties of a guardian; amending s. 744.464, F.S.;
  711         establishing the burden of proof for determining
  712         restoration of capacity of a ward in pending
  713         guardianship cases; requiring a court to advance such
  714         cases on the calendar; providing applicability;
  715         providing an effective date.