Florida Senate - 2015                        COMMITTEE AMENDMENT
       Bill No. SB 318
       
       
       
       
       
       
                                Ì938168NÎ938168                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/12/2015           .                                
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       The Committee on Judiciary (Diaz de la Portilla) 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)(a) If a power of attorney is suspended during any
   10  person initiates judicial proceedings to determine the
   11  principal’s incapacity or for the appointment of a guardian
   12  advocate, the authority granted under the power of attorney is
   13  suspended until the petition is dismissed or withdrawn or the
   14  court enters an order authorizing the agent to exercise one or
   15  more powers granted under the power of attorney.
   16         (a) If an emergency arises after initiation of proceedings
   17  to determine incapacity and before adjudication regarding the
   18  principal’s capacity, the agent may petition the court in which
   19  the proceeding is pending for authorization to exercise a power
   20  granted under the power of attorney. The petition must set forth
   21  the nature of the emergency, the property or matter involved,
   22  and the power to be exercised by the agent.
   23         (b) Notwithstanding the provisions of this section, unless
   24  otherwise ordered by the court, a proceeding to determine
   25  incapacity does not affect the authority of the agent to make
   26  health care decisions for the principal, including, but not
   27  limited to, those provided in chapter 765. If the principal has
   28  executed a health care advance directive designating a health
   29  care surrogate, the terms of the directive control if the
   30  directive and the power of attorney are in conflict unless the
   31  power of attorney is later executed and expressly states
   32  otherwise.
   33         Section 2. Paragraphs (a) and (c) of subsection (2) of
   34  section 709.2119, Florida Statutes, are amended, and subsection
   35  (3) of that section is republished, to read:
   36         709.2119 Acceptance of and reliance upon power of
   37  attorney.—
   38         (2) A third person may require:
   39         (a) An agent to execute an affidavit stating where the
   40  principal is domiciled; that the principal is not deceased; that
   41  there has been no revocation, or partial or complete termination
   42  by adjudication of incapacity or by the occurrence of an event
   43  referenced in the power of attorney; that the power of attorney
   44  is not under a suspension as the result there has been no
   45  suspension by initiation of proceedings to determine incapacity,
   46  or to appoint a guardian, of the principal; that the agent’s
   47  authority has not been terminated by the filing of an action for
   48  dissolution or annulment of marriage or legal separation of the
   49  agent and principal; and, if the affiant is a successor agent,
   50  the reasons for the unavailability of the predecessor agents, if
   51  any, at the time the authority is exercised.
   52         (c) A written affidavit executed by the agent under this
   53  subsection may, but need not, be in the following form:
   54  
   55  STATE OF............
   56  COUNTY OF............
   57  
   58         Before me, the undersigned authority, personally appeared
   59  ...(agent)... (“Affiant”), who swore or affirmed that:
   60         1. Affiant is the agent named in the Power of Attorney
   61  executed by ...(principal)... (“Principal”) on ...(date)....
   62         2. This Power of Attorney is currently exercisable by
   63  Affiant. The principal is domiciled in ...(insert name of state,
   64  territory, or foreign country)....
   65         3. To the best of Affiant’s knowledge after diligent search
   66  and inquiry:
   67         a. The Principal is not deceased;
   68         b. Affiant’s authority for the specific transaction has not
   69  been suspended during by initiation of proceedings to determine
   70  incapacity or to appoint a guardian or a guardian advocate;
   71         c. Affiant’s authority has not been terminated by the
   72  filing of an action for dissolution or annulment of Affiant’s
   73  marriage to the principal, or their legal separation; and
   74         d. There has been no revocation, or partial or complete
   75  termination, of the power of attorney or of Affiant’s authority.
   76         4. Affiant is acting within the scope of authority granted
   77  in the power of attorney.
   78         5. Affiant is the successor to ...(insert name of
   79  predecessor agent)..., who has resigned, died, become
   80  incapacitated, is no longer qualified to serve, has declined to
   81  serve as agent, or is otherwise unable to act, if applicable.
   82         6. Affiant agrees not to exercise any powers granted by the
   83  Power of Attorney if Affiant attains knowledge that the power of
   84  attorney has been revoked, has been partially or completely
   85  terminated or suspended, or is no longer valid because of the
   86  death or adjudication of incapacity of the Principal.
   87  
   88  ................
   89  ...(Affiant)...
   90  
   91         Sworn to (or affirmed) and subscribed before me this ....
   92  day of ...(month)..., ...(year)..., by ...(name of person making
   93  statement)...
   94  
   95  ...(Signature of Notary Public-State of Florida)...
   96  
   97  ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
   98  
   99  Personally Known OR Produced Identification
  100  ...(Type of Identification Produced)...
  101         (3) A third person who is asked to accept a power of
  102  attorney that appears to be executed in accordance with s.
  103  709.2105 may in good faith request, and rely upon, without
  104  further investigation:
  105         (a) A certified English translation of the power of
  106  attorney if the power of attorney contains, in whole or in part,
  107  language other than English;
  108         (b) An opinion of counsel as to any matter of law
  109  concerning the power of attorney if the third person making the
  110  request provides in a writing or other record the reason for the
  111  request; or
  112         (c) The affidavit described in subsection (2).
  113         Section 3. Section 744.1065, Florida Statutes, is created
  114  to read:
  115         744.1065 Mediation; alternative dispute resolution.—At any
  116  time, the court may, upon its own motion or the motion of an
  117  interested person, refer a matter under the jurisdiction of this
  118  chapter to mediation or alternative dispute resolution if the
  119  court finds that mediation or alternative dispute resolution is
  120  in the best interests of the alleged incapacitated person, ward,
  121  or minor.
  122         Section 4. Subsection (5) is added to section 744.107,
  123  Florida Statutes, to read:
  124         744.107 Court monitors.—
  125         (5) The court may appoint the office of criminal conflict
  126  and civil regional counsel as monitor if the ward is indigent.
  127         Section 5. Subsection (6) is added to section 744.1075,
  128  Florida Statutes, to read:
  129         744.1075 Emergency court monitor.—
  130         (6) The court may appoint the office of criminal conflict
  131  and civil regional counsel as monitor if the ward is indigent.
  132         Section 6. Subsections (5) and (8) of section 744.108,
  133  Florida Statutes, are amended, and subsection (9) is added to
  134  that section, to read:
  135         744.108 Guardian Guardian’s and attorney attorney’s fees
  136  and expenses.—
  137         (5) All petitions for guardian guardian’s and attorney
  138  attorney’s fees and expenses must be accompanied by an itemized
  139  description of the services performed for the fees and expenses
  140  sought to be recovered.
  141         (8) When court proceedings are instituted to review or
  142  determine guardian a guardian’s or attorney an attorney’s fees
  143  under subsection (2), such proceedings are part of the
  144  guardianship administration process and the costs, including
  145  costs and attorney fees for the guardian’s attorney, an attorney
  146  appointed under s. 744.331(2), or an attorney who has rendered
  147  services to the ward, shall be determined by the court and paid
  148  from the assets of the guardianship estate unless the court
  149  finds the requested compensation under subsection (2) to be
  150  substantially unreasonable.
  151         (9) With respect to a request for compensation by the
  152  guardian, the guardian’s attorney, a person employed by the
  153  guardian, an attorney appointed under s. 744.331(2), or an
  154  attorney who has rendered services to the ward, the court may
  155  determine the compensation to be reasonable without receiving
  156  expert testimony. A person or party may offer expert testimony
  157  for or against a request for compensation after giving notice to
  158  interested persons. If expert testimony is offered, the court
  159  shall award reasonable expert witness fees to the prevailing
  160  interested person, which must be paid from the assets of the
  161  guardianship estate.
  162         Section 7. Section 744.3025, Florida Statutes, is amended
  163  to read:
  164         744.3025 Claims of minors.—
  165         (1)(a) The court may appoint a guardian ad litem to
  166  represent the minor’s interest before approving a settlement of
  167  the minor’s portion of the claim in a any case in which a minor
  168  has a claim for personal injury, property damage, wrongful
  169  death, or other cause of action in which the gross settlement of
  170  the claim exceeds $15,000 if the court believes a guardian ad
  171  litem is necessary to protect the minor’s interest.
  172         (b) Except as provided in paragraph (e), the court shall
  173  appoint a guardian ad litem to represent the minor’s interest
  174  before approving a settlement of the minor’s claim in a any case
  175  in which the gross settlement involving a minor equals or
  176  exceeds $50,000.
  177         (c) The appointment of the guardian ad litem must be
  178  without the necessity of bond or notice.
  179         (d) The duty of the guardian ad litem is to protect the
  180  minor’s interests as described in the Florida Probate Rules.
  181         (e) A court need not appoint a guardian ad litem for the
  182  minor if a guardian of the minor has previously been appointed
  183  and that guardian has no potential adverse interest to the
  184  minor. A court may appoint a guardian ad litem if the court
  185  believes a guardian ad litem is necessary to protect the
  186  interests of the minor.
  187         (2) Unless waived, the court shall award reasonable fees
  188  and costs to the guardian ad litem to be paid out of the gross
  189  proceeds of the settlement.
  190         (3) A settlement of a claim pursuant to this section is
  191  subject to the confidentiality provisions of this chapter.
  192         Section 8. Section 744.3031, Florida Statutes, is amended
  193  to read:
  194         744.3031 Emergency temporary guardianship.—
  195         (1) A court, prior to appointment of a guardian but after a
  196  petition for determination of incapacity has been filed pursuant
  197  to this chapter, and after a duly noticed hearing has been held,
  198  may appoint an emergency temporary guardian for the person or
  199  property, or both, of an alleged incapacitated person. The court
  200  must specifically find that there appears to be imminent danger
  201  that the physical or mental health or safety of the person will
  202  be seriously impaired or that the person’s property is in danger
  203  of being wasted, misappropriated, or lost unless immediate
  204  action is taken. The subject of the proceeding or any adult
  205  interested in the welfare of that person may apply to the court
  206  in which the proceeding is pending for the emergency appointment
  207  of a temporary guardian. The powers and duties of the emergency
  208  temporary guardian must be specifically enumerated by court
  209  order. The court shall appoint counsel to represent the alleged
  210  incapacitated person during any such summary proceedings, and
  211  such appointed counsel may request that the proceeding be
  212  recorded and transcribed.
  213         (2) The court may appoint an emergency temporary guardian
  214  on its own motion if no petition for appointment of guardian has
  215  been filed at the time of entry of an order determining
  216  incapacity.
  217         (3) Notice of filing of a petition for appointment of an
  218  emergency temporary guardian and notice of any hearing on the
  219  petition must be served on the alleged incapacitated person and
  220  on the alleged incapacitated person’s attorney at least 24 hours
  221  before a hearing is held on the petition unless the petitioner
  222  demonstrates that substantial harm to the alleged incapacitated
  223  person will occur if the 24-hour notice is given.
  224         (4)(3) The authority of an emergency temporary guardian
  225  expires 60 90 days after the date of appointment or when a
  226  guardian is appointed, whichever occurs first. The authority of
  227  the emergency temporary guardian may be extended for an
  228  additional 60 90 days after a hearing is held and upon a showing
  229  that the emergency conditions still exist.
  230         (5)(4) The court may issue an injunction, restraining
  231  order, or other appropriate writ to protect the physical or
  232  mental health or safety of the person who is the ward of the
  233  emergency temporary guardianship.
  234         (6)(5) The emergency temporary guardian shall take an oath
  235  to faithfully perform the duties of a guardian before letters of
  236  emergency temporary guardianship are issued.
  237         (7)(6)The court may require that, before exercising
  238  authority as guardian, the emergency temporary guardian of the
  239  property may be required to file a bond in accordance with s.
  240  744.351.
  241         (8)(7) An emergency temporary guardian’s authority and
  242  responsibility begins upon issuance of letters of emergency
  243  temporary guardianship in accordance with s. 744.345.
  244         (9)(8)(a) An emergency temporary guardian shall file a
  245  final report no later than 30 days after the expiration of the
  246  emergency temporary guardianship.
  247         (b)A court may not authorize any final payment of the
  248  emergency temporary guardian fees or the fees of his or her
  249  attorney until the final report is filed.
  250         (c)1.If the final report is not timely filed, the court
  251  shall issue to the emergency temporary guardian an order to show
  252  cause which requires the emergency temporary guardian to appear
  253  before the court and explain why the court should not take
  254  further action. The order must specify the time and place of the
  255  hearing within a reasonable time after service of the order to
  256  allow for the preparation of a defense.
  257         2. At any time before the hearing on the order to show
  258  cause, the court may suspend the emergency temporary guardian if
  259  he or she has become a successor guardian, appoint a guardian ad
  260  litem, or issue any other appropriate order to protect the
  261  physical or mental health, safety, or property of the ward. A
  262  copy of any such order shall be transmitted by the court or
  263  under its direction to all parties at the time of entry of the
  264  order or injunction.
  265         3. After the hearing on the order to show cause, the court
  266  may impose sanctions on the emergency temporary guardian or take
  267  any other action authorized by law, including, but not limited
  268  to, entering a judgment of contempt; ordering an accounting;
  269  freezing assets; referring the case to local law enforcement
  270  agencies or the state attorney; filing an abuse, neglect, or
  271  exploitation complaint with the Department of Children and
  272  Families; and initiating proceedings to remove the emergency
  273  temporary guardian if he or she has become a successor guardian.
  274         (d)(b) If an emergency temporary guardian is a guardian for
  275  the property, the final report must consist of a verified
  276  inventory of the property, as provided in s. 744.365, as of the
  277  date the letters of emergency temporary guardianship were
  278  issued, a final accounting that gives a full and correct account
  279  of the receipts and disbursements of all the property of the
  280  ward over which the guardian had control, and a statement of the
  281  property of the ward on hand at the end of the emergency
  282  temporary guardianship. If the emergency temporary guardian
  283  becomes the successor guardian of the property, the final report
  284  must satisfy the requirements of the initial guardianship report
  285  for the guardian of the property as provided in s. 744.362.
  286         (e)(c) If the emergency temporary guardian is a guardian of
  287  the person, the final report must summarize the activities of
  288  the temporary guardian with regard to residential placement,
  289  medical condition, mental health and rehabilitative services,
  290  and the social condition of the ward to the extent of the
  291  authority granted to the temporary guardian in the letters of
  292  guardianship. If the emergency temporary guardian becomes the
  293  successor guardian of the person, the report must satisfy the
  294  requirements of the initial report for a guardian of the person
  295  as stated in s. 744.362.
  296         (f)(d) A copy of the final report of the emergency
  297  temporary guardianship shall be served on the successor guardian
  298  and the ward.
  299         Section 9. Subsection (1) of section 744.309, Florida
  300  Statutes, is amended to read:
  301         744.309 Who may be appointed guardian of a resident ward.—
  302         (1) RESIDENT.—
  303         (a) Any resident of this state who is sui juris and is 18
  304  years of age or older is qualified to act as guardian of a ward.
  305         (b) A corporation not for profit incorporated pursuant to
  306  chapter 617 is qualified to act as guardian of a ward if the
  307  corporation is a charitable organization that is exempt from
  308  taxation under s. 501(c)(3) of the Internal Revenue Code and the
  309  corporation is registered as a professional guardian pursuant to
  310  s. 744.1083.
  311         (c)A justice or No judge may not shall act as guardian
  312  unless after this law becomes effective, except when he or she
  313  is related to the ward by blood, marriage, or adoption, or has
  314  maintained a close relationship with the ward or the ward’s
  315  family, and serves without compensation.
  316         Section 10. Section 744.3115, Florida Statutes, is amended
  317  to read:
  318         744.3115 Advance directives for health care.—In each
  319  proceeding in which a guardian is appointed under this chapter,
  320  the court shall determine whether the ward, prior to incapacity,
  321  has executed any valid advance directive under chapter 765. If
  322  any advance directive exists, the court shall specify in its
  323  order and letters of guardianship what authority, if any, the
  324  guardian shall exercise over the ward with regard to health care
  325  decisions and what authority, if any, the surrogate shall
  326  continue to exercise over the ward with regard to health care
  327  decisions surrogate. Pursuant to the grounds listed in s.
  328  765.105, the court, upon its own motion, may, with notice to the
  329  surrogate and any other appropriate parties, modify or revoke
  330  the authority of the surrogate to make health care decisions for
  331  the ward. Any order revoking or modifying the authority of the
  332  surrogate must be supported by specific written findings of
  333  fact. If the court order provides that the guardian is
  334  responsible for making health care decisions for the ward, the
  335  guardian shall assume the responsibilities of the surrogate
  336  which are provided in s. 765.205. For purposes of this section,
  337  the term “health care decision” has the same meaning as in s.
  338  765.101.
  339         Section 11. Section 744.312, Florida Statutes, is reordered
  340  and amended to read:
  341         744.312 Considerations in appointment of guardian.—
  342         (2)(1)If a guardian cannot be appointed pursuant to
  343  subsection (1) Subject to the provisions of subsection (4), the
  344  court may appoint any person who is fit and proper and qualified
  345  to act as guardian, whether related to the ward or not.
  346         (2) The court shall give preference to the appointment of a
  347  person who:
  348         (a) Is related by blood or marriage to the ward;
  349         (b) Has educational, professional, or business experience
  350  relevant to the nature of the services sought to be provided;
  351         (c) Has the capacity to manage the financial resources
  352  involved; or
  353         (d) Has the ability to meet the requirements of the law and
  354  the unique needs of the individual case.
  355         (3) The court shall also consider all of the following:
  356         (a) Consider The wishes expressed by an incapacitated
  357  person as to who shall be appointed guardian.;
  358         (b) Consider The preference of a minor who is at least age
  359  14 years of age or over as to who should be appointed guardian.;
  360         (c) Consider Any person designated as guardian in any will
  361  in which the ward is a beneficiary.
  362         (d) The wishes of close relatives of the incapacitated
  363  person if the person cannot express a preference.
  364         (4) Unless a court appoints a standby or preneed guardian,
  365  the court:
  366         (a) Must use a rotation system for the appointment of the
  367  guardian or support its order appointing a guardian with written
  368  findings of fact for each factor in subsections (2) and (3).
  369         (b) May not give preference to the appointment of a person
  370  under subsection (2) solely based on the fact that the person
  371  was appointed by the court to serve as an emergency temporary
  372  guardian.
  373         (c) May not appoint as the permanent guardian a
  374  professional guardian who served as an emergency temporary
  375  guardian for the incapacitated person.
  376         (5) The limitations in paragraphs (4)(b) and (c) apply only
  377  if an interested person objects to the appointment of the
  378  guardian. However, the court may waive the limitations if the
  379  special requirements of the guardianship demand that the court
  380  appoint a guardian who has a special talent or specific prior
  381  experience. The court must make specific findings of fact which
  382  justify such special requirements, which require an appointment
  383  without reference to the limitations in paragraphs (4)(b) and
  384  (c).
  385         (1)(4)If the person designated is qualified to serve
  386  pursuant to s. 744.309, The court shall appoint as guardian any
  387  standby guardian or preneed guardian who is qualified as
  388  guardian under s. 744.309, unless the court determines that
  389  appointing the such person is contrary to the best interests of
  390  the ward.
  391         Section 12. Section 744.3203, Florida Statutes, is created
  392  to read:
  393         744.3203 Suspension of power of attorney before incapacity
  394  determination.—
  395         (1)At any time during proceedings to determine incapacity
  396  but before the entry of an order determining incapacity, an
  397  alleged incapacitated person’s power of attorney is suspended
  398  when the petitioner files a motion stating that a specific power
  399  of attorney should be suspended or modified for any of the
  400  following grounds:
  401         (a)The agent’s decisions are not in accord with the
  402  alleged incapacitated person’s known desires.
  403         (b) The power of attorney is invalid.
  404         (c) The agent has failed to discharge duties, or incapacity
  405  or illness renders the agent incapable of discharging duties.
  406         (d) The agent has abused powers.
  407  
  408  Grounds for suspending a power of attorney do not include the
  409  existence of a dispute between the agent and the petitioner
  410  which is more appropriate for resolution in some other forum or
  411  a legal proceeding other than a guardianship proceeding.
  412         (2) The motion must:
  413         (a) Identify one or more of the grounds in subsection (1);
  414         (b) Include specific statements of fact showing that
  415  grounds exist to justify the relief sought; and
  416         (c) Include the following statement: “Under penalties of
  417  perjury, I declare that I have read the foregoing motion and
  418  that the facts stated in it are true,” followed by the signature
  419  of the petitioner.
  420         (3) Upon the filing of a response to the motion by the
  421  agent under the power of attorney, the court shall schedule the
  422  motion for an expedited hearing. Unless an emergency has arisen
  423  and the agent’s response sets forth the nature of the emergency,
  424  the property or matter involved, and the power to be exercised
  425  by the agent, notice must be given to all interested persons,
  426  the alleged incapacitated person, and the alleged incapacitated
  427  person’s attorney. The court order following the hearing must
  428  set forth what powers the agent is permitted to exercise, if
  429  any, pending the outcome of the petition to determine
  430  incapacity.
  431         (4) In addition to any other remedy authorized by law, a
  432  court may award reasonable attorney fees and costs to an agent
  433  who successfully challenges the suspension of the power of
  434  attorney if the petitioner’s motion contains false or incomplete
  435  statements, was made in bad faith, or fails to contain
  436  sufficient factual allegations.
  437         Section 13. Section 744.345, Florida Statutes, is amended
  438  to read:
  439         744.345 Letters of guardianship.—Letters of guardianship
  440  shall be issued to the guardian and shall specify whether the
  441  guardianship pertains to the person, or the property, or both,
  442  of the ward. The letters must state whether the guardianship is
  443  plenary or limited, and, if limited, the letters must state the
  444  powers and duties of the guardian. If the guardianship is
  445  limited, The letters shall state whether or not and to what
  446  extent the guardian is authorized to act on behalf of the ward
  447  with regard to any advance directive previously executed by the
  448  ward.
  449         Section 14. Section 744.359, Florida Statutes, is created
  450  to read:
  451         744.359 Abuse, neglect, or exploitation by a guardian.—
  452         (1) A guardian may not abuse, neglect, or exploit a ward.
  453         (2) A guardian commits exploitation when the guardian:
  454         (a) Commits fraud in obtaining appointment as a guardian.
  455         (b) Abuses his or her powers.
  456         (c) Wastes, embezzles, or intentionally mismanages the
  457  assets of the ward.
  458         (3) A person who believes that a guardian is abusing,
  459  neglecting, or exploiting a ward, including criminal
  460  exploitation of a ward as prohibited in s. 825.103, shall report
  461  the conduct to the central abuse hotline of the Department of
  462  Children and Families.
  463         Section 15. Section 744.361, Florida Statutes, is amended
  464  to read:
  465         744.361 Powers and duties of guardian.—
  466         (1) The guardian of an incapacitated person is a fiduciary
  467  and may exercise only those rights that have been removed from
  468  the ward and delegated to the guardian. The guardian of a minor
  469  shall exercise the powers of a plenary guardian.
  470         (2) The guardian shall act within the scope of the
  471  authority granted by the court and as provided by law.
  472         (3) The guardian shall act in good faith.
  473         (4) The guardian may not act in a manner that is contrary
  474  to the ward’s best interests under the circumstances.
  475         (5) A guardian who has special skills or expertise, or is
  476  appointed in reliance upon the guardian’s representation that
  477  the guardian has special skills or expertise, shall use those
  478  special skills or expertise when acting on behalf of the ward.
  479         (6)(2) The guardian shall file an initial guardianship
  480  report in accordance with s. 744.362.
  481         (7)(3) The guardian shall file a guardianship report
  482  annually in accordance with s. 744.367.
  483         (8)(4) The guardian of the person shall implement the
  484  guardianship plan.
  485         (9)(5) When two or more guardians have been appointed, the
  486  guardians shall consult with each other.
  487         (10)(6) A guardian who is given authority over any property
  488  of the ward shall:
  489         (a) Protect and preserve the property and invest it
  490  prudently as provided in chapter 518, apply it as provided in s.
  491  744.397, and keep clear, distinct, and accurate records of the
  492  administration of the ward’s property account for it faithfully.
  493         (b) Perform all other duties required of him or her by law.
  494         (c) At the termination of the guardianship, deliver the
  495  property of the ward to the person lawfully entitled to it.
  496         (11)(7) The guardian shall observe the standards in dealing
  497  with the guardianship property that would be observed by a
  498  prudent person dealing with the property of another, and, if the
  499  guardian has special skills or is named guardian on the basis of
  500  representations of special skills or expertise, he or she is
  501  under a duty to use those skills.
  502         (12)(8) The guardian, if authorized by the court, shall
  503  take possession of all of the ward’s property and of the rents,
  504  income, issues, and profits from it, whether accruing before or
  505  after the guardian’s appointment, and of the proceeds arising
  506  from the sale, lease, or mortgage of the property or of any
  507  part. All of the property and the rents, income, issues, and
  508  profits from it are assets in the hands of the guardian for the
  509  payment of debts, taxes, claims, charges, and expenses of the
  510  guardianship and for the care, support, maintenance, and
  511  education of the ward or the ward’s dependents, as provided for
  512  under the terms of the guardianship plan or by law.
  513         (13) Recognizing that every individual has unique needs and
  514  abilities, a guardian who is given authority over a ward’s
  515  person shall, as appropriate under the circumstances:
  516         (a) Consider the expressed desires of the ward as known by
  517  the guardian when making decisions that affect the ward.
  518         (b) Allow the ward to maintain contact with family and
  519  friends unless the guardian believes that such contact may cause
  520  harm to the ward.
  521         (c) Not restrict the physical liberty of the ward more than
  522  reasonably necessary to protect the ward or another person from
  523  serious physical injury, illness, or disease.
  524         (d) Assist the ward in developing or regaining his or her
  525  own capacity, if medically possible.
  526         (e) Notify the court if the guardian believes that the ward
  527  has regained capacity and that one or more of the rights that
  528  have been removed should be restored to the ward.
  529         (f) To the extent applicable, make provision for the
  530  medical, mental, rehabilitative, or personal care services for
  531  the welfare of the ward.
  532         (g) To the extent applicable, acquire a clear understanding
  533  of the risks and benefits of a recommended course of health care
  534  treatment before making a health care decision.
  535         (h) Evaluate the ward’s medical and health care options,
  536  financial resources, and desires when making residential
  537  decisions that are best suited for the current needs of the
  538  ward.
  539         (i) Advocate on behalf of the ward in institutional and
  540  other residential settings and regarding access to home and
  541  community-based services.
  542         (j) Acquire an understanding of the available residential
  543  options and give priority to home and other community-based
  544  services and settings when not inconsistent with the person’s
  545  goals, needs, and preferences.
  546         (14)(9) A professional guardian must ensure that each of
  547  the guardian’s wards is personally visited by the guardian or
  548  one of the guardian’s professional staff at least once each
  549  calendar quarter. During the personal visit, the guardian or the
  550  guardian’s professional staff person shall assess:
  551         (a) The ward’s physical appearance and condition.
  552         (b) The appropriateness of the ward’s current living
  553  situation.
  554         (c) The need for any additional services and the necessity
  555  for continuation of existing services, taking into consideration
  556  all aspects of social, psychological, educational, direct
  557  service, health, and personal care needs.
  558         (d) The nature and extent of visitation and communication
  559  with the ward’s family and friends.
  560  
  561  This subsection does not apply to a professional guardian who
  562  has been appointed only as guardian of the property.
  563         Section 16. Subsection (1) of section 744.367, Florida
  564  Statutes, is amended to read:
  565         744.367 Duty to file annual guardianship report.—
  566         (1) Unless the court requires filing on a calendar-year
  567  basis, each guardian of the person shall file with the court an
  568  annual guardianship plan at least 60 days, but no more than
  569  within 90 days, before after the last day of the anniversary
  570  month that the letters of guardianship were signed, and the plan
  571  must cover the coming fiscal year, ending on the last day in
  572  such anniversary month. If the court requires calendar-year
  573  filing, the guardianship plan for the forthcoming calendar year
  574  must be filed on or after September 1, but no later than
  575  December 1, of the current year before April 1 of each year.
  576         Section 17. Subsection (8) of section 744.369, Florida
  577  Statutes, is amended to read:
  578         744.369 Judicial review of guardianship reports.—
  579         (8) The approved report constitutes the authority for the
  580  guardian to act in the forthcoming year. The powers of the
  581  guardian are limited by the terms of the report. The annual
  582  report may not grant additional authority to the guardian
  583  without a hearing, as provided for in s. 744.331, to determine
  584  that the ward is incapacitated to act in that matter. Unless the
  585  court orders otherwise, the guardian may continue to act under
  586  authority of the last approved report until the forthcoming
  587  year’s report is approved.
  588         Section 18. Subsection (1) of section 744.3715, Florida
  589  Statutes, is amended to read:
  590         744.3715 Petition for interim judicial review.—
  591         (1) At any time, any interested person, including the ward,
  592  may petition the court for review alleging that the guardian is
  593  not complying with the guardianship plan, or is exceeding his or
  594  her authority under the guardianship plan, is acting in manner
  595  contrary to s. 744.361, is denying visitation between the ward
  596  and his or her relatives in violation of s. 744.361(13), or and
  597  the guardian is not acting in the best interest of the ward. The
  598  petition for review must state the nature of the objection to
  599  the guardian’s action or proposed action. Upon the filing of any
  600  such petition, the court shall review the petition and act upon
  601  it expeditiously.
  602         Section 19. Paragraphs (a) and (b) of subsection (3) of
  603  section 744.464, Florida Statutes, are amended, and subsection
  604  (4) is added to that section, to read:
  605         744.464 Restoration to capacity.—
  606         (3) ORDER OF RESTORATION.—
  607         (a) If no objections are filed, and the court is satisfied
  608  that with the medical examination establishes by a preponderance
  609  of the evidence that restoration of all or some of the ward’s
  610  rights is appropriate, the court shall enter an order of
  611  restoration of capacity, restoring all or some of the rights
  612  that which were removed from the ward in accordance with those
  613  findings. The order must be issued within 30 days after the
  614  medical report is filed.
  615         (b) At the conclusion of a hearing, conducted pursuant to
  616  s. 744.1095, the court shall make specific findings of fact and,
  617  based on a preponderance of the evidence, enter an order either
  618  denying the suggestion of capacity or restoring all or some of
  619  the rights that which were removed from the ward. The ward has
  620  the burden of proving by a preponderance of the evidence that
  621  the restoration of capacity is warranted.
  622         (4) TIMELINESS OF HEARING.—The court shall give priority to
  623  any suggestion of capacity and shall advance the cause on the
  624  calendar.
  625         Section 20. The amendments made by this act apply to all
  626  proceedings pending on the effective date of this act.
  627         Section 21. This act shall take effect upon becoming a law.
  628  ================= T I T L E  A M E N D M E N T ================
  629  And the title is amended as follows:
  630         Delete everything before the enacting clause
  631  and insert:
  632                        A bill to be entitled                      
  633         An act relating to guardianship proceedings; amending
  634         s. 709.2109, F.S.; revising the conditions under which
  635         an agent’s power of attorney is terminated or
  636         suspended or continues; amending s. 709.2119, F.S.;
  637         revising the contents of an affidavit by an agent to a
  638         third person; creating s. 744.1065, F.S.; authorizing
  639         a court to refer guardianship matters to mediation or
  640         alternative dispute resolution under certain
  641         circumstances; amending ss. 744.107 and 744.1075,
  642         F.S.; authorizing a court to appoint the office of
  643         criminal conflict and civil regional counsel as a
  644         court monitor in guardianship proceedings under
  645         certain circumstances; amending s. 744.108, F.S.;
  646         providing that fees and costs incurred by specified
  647         attorneys in compensation proceedings are payable from
  648         the assets of the guardianship estate; providing that
  649         expert testimony is not required in proceedings to
  650         determine compensation for an attorney or guardian;
  651         providing that expert witness fees are payable from
  652         the assets of the guardianship estate under certain
  653         circumstances; amending s. 744.3025, F.S.; clarifying
  654         the circumstances under which a court may appoint a
  655         guardian ad litem to represent a minor; clarifying the
  656         circumstances under which a court must appoint a
  657         guardian ad litem; providing that a settlement of a
  658         minor’s claim is subject to certain confidentiality
  659         provisions; amending s. 744.3031, F.S.; requiring that
  660         a duly noticed hearing be held before the appointment
  661         of an emergency temporary guardian; requiring a notice
  662         of filing of a petition for appointment of an
  663         emergency temporary guardian and a notice for any
  664         hearing on the petition to be served on certain
  665         persons before a hearing on the petition commences;
  666         revising the period for which an emergency temporary
  667         guardian may be appointed; prohibiting the final
  668         payment of the emergency temporary guardian fees and
  669         his or her attorney fees until the final report is
  670         filed; requiring a court to issue an order to show
  671         cause to an emergency temporary guardian who fails to
  672         timely file his or her final report; authorizing a
  673         court to take certain actions to protect the ward
  674         before a hearing on an order to show cause; requiring
  675         a copy of such order to be transmitted to certain
  676         parties; authorizing the court to impose sanctions on
  677         the emergency temporary guardian or take certain other
  678         actions after a show cause hearing; amending s.
  679         744.309, F.S.; providing that certain corporations not
  680         for profit may act as guardians of a ward; amending s.
  681         744.3115, F.S.; requiring the court to specify
  682         authority for health care decisions with respect to a
  683         ward’s advance directive; requiring a court order
  684         revoking or modifying the authority of a health care
  685         surrogate to be supported by written findings of fact;
  686         amending s. 744.312, F.S.; requiring a court, in
  687         determining whom to appoint as a guardian, to consider
  688         the wishes of the close relatives of the incapacitated
  689         person under certain circumstances; limiting the
  690         authority of a court to appoint guardians under
  691         certain circumstances; authorizing the court to waive
  692         the limitations under certain circumstances;
  693         prohibiting the court from appointing a professional
  694         guardian as a permanent guardian under certain
  695         circumstances; creating s. 744.3203, F.S.; providing
  696         for the suspension of a power of attorney during
  697         guardianship proceedings under certain circumstances;
  698         requiring an expedited hearing on the motion to
  699         suspend a power of attorney under certain
  700         circumstances; authorizing a court to award reasonable
  701         attorney fees and costs to an agent who challenges the
  702         suspension of the power of attorney under certain
  703         circumstances; amending s. 744.345, F.S.; revising the
  704         circumstances under which letters of guardianship must
  705         describe the extent to which a guardian is authorized
  706         to act on behalf of the ward with regard to an advance
  707         directive; creating s. 744.359, F.S.; prohibiting
  708         abuse, neglect, or exploitation of a ward by a
  709         guardian; requiring the report of abuse, neglect, or
  710         exploitation to the Department of Children and
  711         Families central abuse hotline; amending s. 744.361,
  712         F.S.; revising the powers and duties of a guardian;
  713         amending s. 744.367, F.S.; revising the period during
  714         which a guardian must file an annual guardianship plan
  715         with the court; amending s. 744.369, F.S.; providing
  716         for the continuance of a guardian’s authority to act
  717         under a last approved annual report under certain
  718         circumstances; amending s. 744.3715, F.S.; providing
  719         an additional circumstance under which an interested
  720         person may petition the court regarding a guardian’s
  721         failure to comply with the duties of a guardian;
  722         amending s. 744.464, F.S.; establishing the burden of
  723         proof for determining restoration of capacity of a
  724         ward in pending guardianship cases; requiring the
  725         court to make findings of fact in its determination to
  726         restore or deny capacity; providing that the ward has
  727         the burden of proving by a preponderance of the
  728         evidence; requiring a court to advance such cases on
  729         the calendar; providing applicability; providing an
  730         effective date.