Florida Senate - 2015                                     SB 318
       
       
        
       By Senator Diaz de la Portilla
       
       
       
       
       
       40-00508-15                                            2015318__
    1                        A bill to be entitled                      
    2         An act relating to guardianship proceedings; amending
    3         s. 744.3031, F.S.; requiring that a duly noticed
    4         hearing be held before the appointment of an emergency
    5         temporary guardian; requiring a notice of filing of a
    6         petition for appointment of an emergency temporary
    7         guardian and any hearing on the petition to be served
    8         on certain persons before a hearing on the petition
    9         commences; revising the time period for which the
   10         emergency temporary guardian may be appointed;
   11         revising the time period for which the authority of
   12         the emergency temporary guardian may be extended after
   13         a hearing is held; requiring the emergency temporary
   14         guardian to file a bond under certain circumstances;
   15         authorizing a court to issue an order to show cause
   16         directed at the emergency temporary guardian under
   17         certain circumstances; requiring the order to include
   18         specific information; authorizing a court, before such
   19         hearing, to issue an order to protect the ward;
   20         requiring a copy of such order to be transmitted to
   21         all parties; authorizing a court, after such hearing,
   22         to impose sanctions on specified persons or to take
   23         any other action authorized by law; creating s.
   24         744.3032, F.S.; providing that an emergency temporary
   25         guardian of an incapacitated person is a fiduciary and
   26         may exercise only delegated rights; providing the
   27         duties and responsibilities of the emergency temporary
   28         guardian; amending s. 744.3115, F.S.; requiring the
   29         court to specify authority for health care decisions
   30         with respect to a ward’s advance directive; amending
   31         s. 744.312, F.S.; prohibiting the court from giving
   32         certain preferences when appointing a guardian;
   33         reenacting s. 744.344(4), F.S., relating to a court
   34         appointing an emergency temporary guardian, to
   35         incorporate the amendment made to s. 744.3031, F.S.,
   36         in a reference thereto; reenacting s. 765.205(3),
   37         F.S., relating to making health care decisions for the
   38         principal, to incorporate the amendment made to s.
   39         744.3115, F.S., in a reference thereto; reenacting ss.
   40         744.304(4), 744.3045(7), and 744.308(6), F.S.,
   41         relating to confirming the appointment of the guardian
   42         if the court finds the standby guardian to be
   43         qualified to serve as guardian, confirming the
   44         appointment of the guardian if the court finds the
   45         preneed guardian to be qualified to serve as guardian,
   46         and directing how the court will be governed when
   47         appointing a guardian, respectively, to incorporate
   48         the amendment made to s. 744.312, F.S., in references
   49         thereto; providing an effective date.
   50          
   51  Be It Enacted by the Legislature of the State of Florida:
   52  
   53         Section 1. Section 744.3031, Florida Statutes, is amended
   54  to read:
   55         744.3031 Emergency temporary guardianship.—
   56         (1) A court, prior to appointment of a guardian but after a
   57  petition for determination of incapacity has been filed pursuant
   58  to this chapter, and after a duly noticed hearing has been held,
   59  may appoint an emergency temporary guardian for the person or
   60  property, or both, of an alleged incapacitated person. The court
   61  must specifically find that there appears to be imminent danger
   62  that the physical or mental health or safety of the person will
   63  be seriously impaired or that the person’s property is in danger
   64  of being wasted, misappropriated, or lost unless immediate
   65  action is taken. The subject of the proceeding or any adult
   66  interested in the welfare of that person may apply to the court
   67  in which the proceeding is pending for the emergency appointment
   68  of a temporary guardian. The powers and duties of the emergency
   69  temporary guardian must be specifically enumerated by court
   70  order. The court shall appoint counsel to represent the alleged
   71  incapacitated person during any such summary proceedings, and
   72  such appointed counsel may request that the proceeding be
   73  recorded and transcribed.
   74         (2) The court may appoint an emergency temporary guardian
   75  on its own motion if no petition for appointment of guardian has
   76  been filed at the time of entry of an order determining
   77  incapacity.
   78         (3) Notice of filing of a petition for appointment of an
   79  emergency temporary guardian and notice of any hearing on the
   80  petition must be served on the alleged incapacitated person and
   81  on the alleged incapacitated person’s attorney before a hearing
   82  on the petition is commenced.
   83         (4)(3) The authority of an emergency temporary guardian
   84  expires 60 90 days after the date of appointment or when a
   85  guardian is appointed, whichever occurs first. The authority of
   86  the emergency temporary guardian may be extended for an
   87  additional 60 90 days after a hearing is held and upon a showing
   88  that the emergency conditions still exist.
   89         (5)(4) The court may issue an injunction, restraining
   90  order, or other appropriate writ to protect the physical or
   91  mental health or safety of the person who is the ward of the
   92  emergency temporary guardianship.
   93         (6)(5) The emergency temporary guardian shall take an oath
   94  to faithfully perform the duties of a guardian before letters of
   95  emergency temporary guardianship are issued.
   96         (7)(6)The court may require that, before exercising
   97  authority as guardian, the emergency temporary guardian of the
   98  property may be required to file a bond in accordance with s.
   99  744.351.
  100         (8)(7) An emergency temporary guardian’s authority and
  101  responsibility begins upon issuance of letters of emergency
  102  temporary guardianship in accordance with s. 744.345.
  103         (9)(8)(a) An emergency temporary guardian shall file a
  104  final report no later than 30 days after the expiration of the
  105  emergency temporary guardianship.
  106         (b)If the final report is not timely filed, the court may
  107  issue to the emergency temporary guardian an order to show cause
  108  that requires the emergency temporary guardian to appear before
  109  the court to explain why the court should not take further
  110  action. The order must specify the time and place of the hearing
  111  within a reasonable time after service of the order to allow for
  112  the preparation of a defense.
  113         (c)At any time before the hearing on the order to show
  114  cause, the court may issue a temporary injunction, a restraining
  115  order, or an order freezing the assets of the emergency
  116  temporary guardian; suspend the emergency temporary guardian or
  117  appoint a guardian ad litem; or issue any other appropriate
  118  order to protect the physical or mental health or safety or the
  119  property of the ward. A copy of any such order or injunction
  120  shall be transmitted by the court or under its direction to all
  121  parties at the time of entry of the order or injunction.
  122         (d)After a hearing on the order to show cause, the court
  123  may impose sanctions on the emergency temporary guardian or his
  124  or her attorney or other respondent or take any other action
  125  authorized by law, including, but not limited to, entering a
  126  judgment of contempt; ordering an accounting; freezing assets;
  127  referring the case to local law enforcement agencies or the
  128  state attorney; filing an abuse, neglect, or exploitation
  129  complaint with the Department of Children and Families; and
  130  initiating proceedings to remove the emergency temporary
  131  guardian.
  132         (e)(b) If an emergency temporary guardian is a guardian for
  133  the property, the final report must consist of a verified
  134  inventory of the property, as provided in s. 744.365, as of the
  135  date the letters of emergency temporary guardianship were
  136  issued, a final accounting that gives a full and correct account
  137  of the receipts and disbursements of all the property of the
  138  ward over which the guardian had control, and a statement of the
  139  property of the ward on hand at the end of the emergency
  140  temporary guardianship. If the emergency temporary guardian
  141  becomes the successor guardian of the property, the final report
  142  must satisfy the requirements of the initial guardianship report
  143  for the guardian of the property as provided in s. 744.362.
  144         (f)(c) If the emergency temporary guardian is a guardian of
  145  the person, the final report must summarize the activities of
  146  the temporary guardian with regard to residential placement,
  147  medical condition, mental health and rehabilitative services,
  148  and the social condition of the ward to the extent of the
  149  authority granted to the temporary guardian in the letters of
  150  guardianship. If the emergency temporary guardian becomes the
  151  successor guardian of the person, the report must satisfy the
  152  requirements of the initial report for a guardian of the person
  153  as stated in s. 744.362.
  154         (g)(d) A copy of the final report of the emergency
  155  temporary guardianship shall be served on the successor guardian
  156  and the ward.
  157         Section 2. Section 744.3032, Florida Statutes, is created
  158  to read:
  159         744.3032 Powers and duties of an emergency temporary
  160  guardian.—An emergency temporary guardian of an incapacitated
  161  person is a fiduciary and may exercise only those rights that
  162  the court has removed from the ward and delegated to the
  163  guardian. The emergency temporary guardian:
  164         (1) Shall act within the scope of the authority granted by
  165  the court and as provided by law;
  166         (2) Shall act in good faith;
  167         (3) May not act in a manner that is contrary to the ward’s
  168  best interests under the circumstances;
  169         (4) Shall use special skills or expertise if the emergency
  170  temporary guardian has special skills or expertise or is
  171  appointed in reliance upon the emergency temporary guardian’s
  172  representation that he or she has special skills or expertise;
  173  and
  174         (5) Recognizing that every individual has unique needs and
  175  abilities, shall, if the emergency temporary guardian is given
  176  authority over the ward’s person and if the following actions
  177  are appropriate under the circumstances:
  178         (a) Consider the expressed desires of the ward as known by
  179  the emergency temporary guardian when making decisions that
  180  affect the ward.
  181         (b) Allow the ward to maintain contact with family and
  182  friends unless the emergency temporary guardian believes that
  183  such contact may cause harm to the ward.
  184         (c) Not restrict the physical liberty of the ward more than
  185  reasonably necessary to protect the ward or another person from
  186  serious physical injury, illness, or disease.
  187         (d) Assist the ward in developing or regaining his or her
  188  own capacity, if medically possible.
  189         (e) Notify the court if the emergency temporary guardian
  190  believes that the ward has regained capacity and that one or
  191  more of the rights that have been removed should be restored.
  192         (f) To the extent applicable, make provision for the
  193  medical, mental, rehabilitative, or personal care services for
  194  the welfare of the ward.
  195         (g) To the extent applicable, acquire a clear understanding
  196  of the risks and benefits of a recommended course of health care
  197  treatment before making health care decisions for the ward.
  198         (h) Evaluate the ward’s medical and health care options,
  199  financial resources, and desires when making residential
  200  decisions that are best suited for the current needs of the
  201  ward.
  202         (i) Advocate on behalf of the ward in institutional and
  203  other residential settings.
  204         Section 3. Section 744.3115, Florida Statutes, is amended
  205  to read:
  206         744.3115 Advance directives for health care.—In each
  207  proceeding in which a guardian is appointed under this chapter,
  208  the court shall determine whether the ward, prior to incapacity,
  209  has executed any valid advance directive under chapter 765. If
  210  any advance directive exists, the court shall specify in its
  211  order and letters of guardianship what authority, if any, the
  212  guardian shall exercise over the ward with regard to health care
  213  decisions and what authority, if any, the surrogate shall
  214  continue to exercise over the ward with regard to health care
  215  decisions surrogate. Pursuant to the grounds listed in s.
  216  765.105, the court, upon its own motion, may, with notice to the
  217  surrogate and any other appropriate parties, modify or revoke
  218  the authority of the surrogate to make health care decisions for
  219  the ward. If the court order provides that the guardian is
  220  responsible for making health care decisions for the ward, the
  221  guardian shall assume the responsibilities of the surrogate
  222  which are provided in s. 765.205. For purposes of this section,
  223  the term “health care decision” has the same meaning as in s.
  224  765.101.
  225         Section 4. Subsection (1) of section 744.312, Florida
  226  Statutes, is amended, present subsections (3) and (4) of that
  227  section are redesignated as subsections (4) and (5),
  228  respectively, and a new subsection (3) is added to that section,
  229  to read:
  230         744.312 Considerations in appointment of guardian.—
  231         (1) Subject to the provisions of subsection (5) (4), the
  232  court may appoint any person who is fit and proper and qualified
  233  to act as guardian, whether related to the ward or not.
  234         (3) The court may not give preference to the appointment of
  235  a person solely based on the fact that the person was appointed
  236  as an emergency temporary guardian.
  237         Section 5. For the purpose of incorporating the amendment
  238  made by this act to section 744.3031, Florida Statutes, in a
  239  reference thereto, subsection (4) of section 744.344, Florida
  240  Statutes, is reenacted to read:
  241         744.344 Order of appointment.—
  242         (4) If a petition for the appointment of a guardian has not
  243  been filed at the time of the hearing on the petition to
  244  determine capacity, the court may appoint an emergency temporary
  245  guardian in the manner and for the purposes specified in s.
  246  744.3031.
  247         Section 6. For the purpose of incorporating the amendment
  248  made by this act to section 744.3115, Florida Statutes, in a
  249  reference thereto, subsection (3) of section 765.205, Florida
  250  Statutes, is reenacted to read:
  251         765.205 Responsibility of the surrogate.—
  252         (3) If, after the appointment of a surrogate, a court
  253  appoints a guardian, the surrogate shall continue to make health
  254  care decisions for the principal, unless the court has modified
  255  or revoked the authority of the surrogate pursuant to s.
  256  744.3115. The surrogate may be directed by the court to report
  257  the principal’s health care status to the guardian.
  258         Section 7. For the purpose of incorporating the amendment
  259  made by this act to section 744.312, Florida Statutes, in a
  260  reference thereto, subsection (4) of section 744.304, Florida
  261  Statutes, is reenacted to read:
  262         744.304 Standby guardianship.—
  263         (4) Within 20 days after assumption of duties as guardian,
  264  a standby guardian shall petition for confirmation of
  265  appointment. If the court finds the standby guardian to be
  266  qualified to serve as guardian under ss. 744.309 and 744.312,
  267  appointment of the guardian must be confirmed. Each guardian so
  268  confirmed shall file an oath in accordance with s. 744.347,
  269  shall file a bond, and shall submit to a credit and a criminal
  270  history record check as set forth in s. 744.3135, if required.
  271  Letters of guardianship must then be issued in the manner
  272  provided in s. 744.345.
  273         Section 8. For the purpose of incorporating the amendment
  274  made by this act to section 744.312, Florida Statutes, in a
  275  reference thereto, subsection (7) of section 744.3045, Florida
  276  Statutes, is reenacted to read:
  277         744.3045 Preneed guardian.—
  278         (7) Within 20 days after assumption of duties as guardian,
  279  a preneed guardian shall petition for confirmation of
  280  appointment. If the court finds the preneed guardian to be
  281  qualified to serve as guardian pursuant to ss. 744.309 and
  282  744.312, appointment of the guardian must be confirmed. Each
  283  guardian so confirmed shall file an oath in accordance with s.
  284  744.347 and shall file a bond, if required. Letters of
  285  guardianship must then be issued in the manner provided in s.
  286  744.345.
  287         Section 9. For the purpose of incorporating the amendment
  288  made by this act to section 744.312, Florida Statutes, in a
  289  reference thereto, subsection (6) of section 744.308, Florida
  290  Statutes, is reenacted to read:
  291         744.308 Resident guardian of the property of nonresident
  292  ward.—
  293         (6) In the appointment of the guardian, the court shall be
  294  governed by s. 744.312.
  295         Section 10. This act shall take effect July 1, 2015.