Senate Bill 1178

CODING: Words stricken are deletions; words underlined are additions.



    Florida Senate - 1998                                  SB 1178

    By Senator Forman





    32-832-98                                               See HB

  1                      A bill to be entitled

  2         An act relating to guardianship; amending s.

  3         744.369, F.S.; extending the time to review

  4         certain reports; authorizing random field

  5         audits; amending s. 744.702, F.S.; providing

  6         legislative intent to establish the Statewide

  7         Public Guardianship Office; directing the

  8         Department of Elderly Affairs to provide

  9         certain services and support; creating s.

10         744.7021, F.S.; providing for the Statewide

11         Public Guardianship Office within the

12         Department of Elderly Affairs; providing for an

13         executive director and oversight

14         responsibilities; requiring submission of a

15         guardianship plan and yearly status reports to

16         the Governor, the President of the Senate, the

17         Speaker of the House of Representatives, and

18         the Chief Justice of the Supreme Court;

19         requiring the office to develop a training

20         program; authorizing demonstration projects;

21         providing for rules; amending s. 744.703, F.S.;

22         providing for the executive director to

23         establish offices of public guardian and to

24         appoint public guardians; providing for

25         transfer of oversight responsibility from the

26         chief judge of the circuit to the office;

27         providing for the suspension of public

28         guardians, as specified; amending s. 744.706,

29         F.S.; providing for the preparation of the

30         budget of the Statewide Public Guardianship

31         Office; amending s. 744.707, F.S.; revising

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1998                                  SB 1178
    32-832-98                                               See HB




  1         language with respect to procedures and rules

  2         to include reference to the Statewide Public

  3         Guardianship Office; amending s. 744.708, F.S.;

  4         revising language with respect to reports and

  5         standards; amending s. 744.709, F.S.; providing

  6         that surety bonds can be purchased from funds

  7         appropriated to the Statewide Public

  8         Guardianship Office; amending s. 744.1085,

  9         F.S.; revising language with respect to

10         professional guardians to include reference to

11         the Statewide Public Guardianship Office;

12         amending s. 744.3135, F.S.; providing a

13         procedure for obtaining fingerprint cards and

14         for maintaining the results of certain

15         investigations; amending s. 28.241, F.S.;

16         providing for funds for public guardians;

17         providing an effective date.

18

19         WHEREAS, the Legislature has recognized that private

20  guardianship is inadequate when there is no willing and

21  responsible family member or friend, other person, bank, or

22  corporation available to serve as guardian for an

23  incapacitated person and such person does not have adequate

24  income or wealth for the compensation of a private guardian,

25  and

26         WHEREAS, a few judicial circuits have been able to

27  establish public guardianship programs to provide guardianship

28  services to some of the state's vulnerable citizens, and

29  additional circuits would like to have public guardians

30  available, and

31

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1998                                  SB 1178
    32-832-98                                               See HB




  1         WHEREAS, many of the state's vulnerable citizens are

  2  going without this service that is necessary for the exercise

  3  of an incapacitated person's constitutional rights, and

  4         WHEREAS, the Legislature recognizes the need for a

  5  statewide office to assist in finding ways to meet the

  6  guardianship needs of incapacitated citizens, and

  7         WHEREAS, there is a growing problem in Florida

  8  involving functionally incapacitated persons who are unable to

  9  access needed services, and

10         WHEREAS, the magnitude of this compelling problem

11  demands legislative action to protect our state's most

12  vulnerable citizens, NOW, THEREFORE,

13

14  Be It Enacted by the Legislature of the State of Florida:

15

16         Section 1.  Subsections (1) and (2) of section 744.369,

17  Florida Statutes, are amended to read:

18         744.369  Judicial review of guardianship reports.--

19         (1)  The court shall review the initial guardianship

20  report within 60 days after the filing of the clerk's report

21  of findings to the court.  The court shall review the annual

22  guardianship report within 30 15 days after the filing of the

23  clerk's report of findings to the court.

24         (2)  The court may appoint general or special masters

25  to assist the court in its review function. The court may

26  require the general or special master to conduct random field

27  audits.

28         Section 2.  Section 744.702, Florida Statutes, is

29  amended to read:

30         744.702  Legislative intent.--The Legislature finds

31  that private guardianship is inadequate where there is no

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1998                                  SB 1178
    32-832-98                                               See HB




  1  willing and responsible family member or friend, other person,

  2  bank, or corporation available to serve as guardian for an

  3  incapacitated person, and such person does not have adequate

  4  income or wealth for the compensation of a private guardian.

  5  The Legislature intends through this act to establish the

  6  Statewide Public Guardianship Office, and permit the

  7  establishment of offices office of public guardian for the

  8  purpose of providing guardianship services for incapacitated

  9  persons when no private guardian is available. The Legislature

10  further finds that alternatives to guardianship and less

11  intrusive means of assistance should always be explored,

12  including, but not limited to, guardian advocates, before an

13  individual's rights are removed through an adjudication of

14  incapacity.  The purpose of this legislation is to provide a

15  public guardian only to those persons whose needs cannot be

16  met through less drastic means of intervention. In addition to

17  auditing services available from the Auditor General, the

18  Statewide Public Guardianship Office may have the assistance

19  of the Inspector General of the Department of Elderly Affairs

20  in providing auditing services, and the Office of General

21  Counsel of the department shall provide assistance in

22  rulemaking and other matters as needed to assist the Statewide

23  Public Guardianship Office. The executive director of the

24  Statewide Public Guardianship Office shall establish a

25  curriculum committee to develop the training program specified

26  in this part. The curriculum committee shall include, but not

27  be limited to, probate judges.

28         Section 3.  Section 744.7021, Florida Statutes, is

29  created to read:

30         744.7021  Statewide Public Guardianship Office.--There

31  is hereby created the Statewide Public Guardianship Office

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1998                                  SB 1178
    32-832-98                                               See HB




  1  within the Department of Elderly Affairs. The Department of

  2  Elderly Affairs shall provide administrative support and

  3  service to the office to the extent requested by the executive

  4  director within the available resources of the department. The

  5  Statewide Public Guardianship Office shall not be subject to

  6  control, supervision, or direction by the Department of

  7  Elderly Affairs in the performance of its duties.

  8         (1)  The head of the Statewide Public Guardianship

  9  Office is the executive director, who shall be appointed by

10  the Governor. The executive director must be a licensed

11  attorney with a background in guardianship law and knowledge

12  of social services available to meet the needs of

13  incapacitated persons, shall serve on a full-time basis, and

14  shall personally, or through representatives of the office,

15  carry out the purposes and functions of the Statewide Public

16  Guardianship Office in accordance with state and federal law.

17  The executive director shall serve at the pleasure of and

18  report to the Governor.

19         (2)  The Statewide Public Guardianship Office shall

20  within available resources have oversight responsibilities for

21  all public guardians.

22         (a)  The office shall review the current public

23  guardian programs in Florida and other states.

24         (b)  The office, in consultation with local

25  guardianship offices, shall develop statewide performance

26  measures and standards.

27         (c)  The office shall review the various methods of

28  funding guardianship programs, the kinds of services being

29  provided by such programs, and the demographics of the wards.

30  In addition, the office shall review and make recommendations

31  regarding the feasibility of recovering a portion or all of

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1998                                  SB 1178
    32-832-98                                               See HB




  1  the costs of providing public guardianship services from the

  2  assets or income of the wards.

  3         (d)  No later than October 1, 1999, the office shall

  4  submit to the Governor, the President of the Senate, the

  5  Speaker of the House of Representatives, and the Chief Justice

  6  of the Supreme Court an interim report describing the progress

  7  of the office in meeting the goals as described in this

  8  section. No later than October 1, 2000, the office shall

  9  submit to the Governor, the President of the Senate, the

10  Speaker of the House of Representatives, and the Chief Justice

11  of the Supreme Court a proposed public guardianship plan

12  including alternatives for meeting the state's guardianship

13  needs. This plan may include recommendations for less than the

14  entire state, may include a phase-in system, and shall include

15  estimates of the cost of each of the alternatives. Each year

16  thereafter, the office shall provide a status report and

17  provide further recommendations to address the need for public

18  guardianship services and related issues.

19         (e)  The office may provide assistance to local

20  governments or entities in pursuing grant opportunities. The

21  office shall review and make recommendations in the annual

22  report on the availability and efficacy of seeking Medicaid

23  matching funds. The office shall diligently seek ways to use

24  existing programs and services to meet the needs of public

25  wards.

26         (f)  The office shall develop a guardianship training

27  program. The training program may be offered to all guardians

28  whether public or private. A fee may be charged to private

29  guardians in order to defray the cost of providing the

30  training.

31

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1998                                  SB 1178
    32-832-98                                               See HB




  1         (3)  The office may conduct or contract for

  2  demonstration projects, within funds appropriated or through

  3  gifts, grants, or contributions for such purposes, to

  4  determine the feasibility or desirability of new concepts of

  5  organization, administration, financing, or service delivery

  6  designed to preserve the civil and constitutional rights of

  7  indigent persons of marginal or diminished capacity due to the

  8  infirmities of aging as manifested by Alzheimer's disease or

  9  related memory disorders, organic brain damage, or other

10  physical, mental, or emotional dysfunctioning. The

11  demonstration projects should endeavor to address emergency

12  needs of affected persons prior to judicial intervention, to

13  utilize alternatives to guardianship, when possible, and to

14  develop innovative linkages between existing programs and

15  services including those funded through the Department of

16  Elderly Affairs Alzheimer's Disease Initiative and related

17  services, the adult protective services program, and local law

18  enforcement.

19         (4)  The office may promulgate rules pursuant to the

20  requirements of chapter 120 to carry out the provisions of

21  this section.

22         Section 4.  Section 744.703, Florida Statutes, is

23  amended to read:

24         744.703  Office of public guardian; appointment,

25  notification.--

26         (1)  The executive director of the Statewide Public

27  Guardianship Office The chief judge of the judicial circuit,

28  after consultation with the chief judge and other circuit

29  judges within the judicial circuit and with appropriate

30  advocacy groups and individuals and organizations who are

31  knowledgeable about the needs of incapacitated persons, may

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1998                                  SB 1178
    32-832-98                                               See HB




  1  establish, within a county in the judicial circuit or within

  2  the judicial circuit, an office of public guardian and create

  3  a list of persons best qualified to serve as the public

  4  guardian. The public guardian must have knowledge of the legal

  5  process and knowledge of social services available to meet the

  6  needs of incapacitated persons.  A nonprofit corporation under

  7  s. 744.309(5) may be appointed public guardian only if:

  8         (a)  It has been granted tax-exempt status from the

  9  United States Internal Revenue Service; and

10         (b)  It maintains a staff of professionally qualified

11  individuals to carry out the guardianship functions, including

12  a staff attorney who has experience in probate areas and

13  another person who has a master's degree in social work, or a

14  gerontologist, psychologist, registered nurse, or nurse

15  practitioner.

16         (2)  The executive director chief judge shall appoint

17  the public guardian from the list of candidates described in

18  subsection (1). A public guardian must meet the qualifications

19  for a guardian as prescribed in s. 744.309(1)(a). Upon

20  appointment of the public guardian, the executive director

21  chief judge shall notify the chief judge of the judicial

22  circuit and the Chief Justice of the Supreme Court of Florida,

23  in writing, of the appointment.

24         (3)  If the needs of the county or circuit do not

25  require a full-time public guardian, a part-time public

26  guardian may be appointed at reduced compensation.

27         (4)  A public guardian, whether full-time or part-time,

28  may not hold any position that would create a conflict of

29  interest.

30         (5)  The public guardian is to be appointed for a term

31  of 4 years, after which her or his appointment must be

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1998                                  SB 1178
    32-832-98                                               See HB




  1  reviewed by the executive director chief judge of the circuit,

  2  and may be reappointed for a term of up to 4 years. A public

  3  guardian may be suspended upon the request of the chief judge.

  4  If a public guardian is suspended, the executive director

  5  shall appoint an acting public guardian as soon as possible to

  6  serve until such time as a permanent replacement is selected.

  7  Removal of the public guardian from office during the term of

  8  office must be by the executive director after consultation

  9  with and upon the recommendation of the chief judge.  This

10  section does not limit the application of ss. 744.474 and

11  744.477.

12         (6)  Public guardians appointed by a chief judge

13  pursuant to this section may continue in their positions until

14  the expiration of the term pursuant to their agreement with

15  the chief judge. However, oversight of all public guardians

16  shall transfer to the Statewide Public Guardianship Office

17  upon the effective date of this act. The executive director of

18  the Statewide Public Guardianship Office shall be responsible

19  for all future appointments of public guardians pursuant to

20  this act.

21         Section 5.  Section 744.706, Florida Statutes, is

22  amended to read:

23         744.706  Preparation of budget.--Each public guardian

24  shall prepare a budget for the operation of the office of

25  public guardian to be submitted to the Statewide Public

26  Guardianship Office chief judge of the judicial circuit for

27  inclusion in the Department of Elderly Affairs' circuit

28  courts' legislative budget request.  The office of public

29  guardian shall be operated within the limitations of the

30  General Appropriations Act and any other funds appropriated by

31  the Legislature to that particular judicial circuit, subject

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1998                                  SB 1178
    32-832-98                                               See HB




  1  to the provisions of chapter 216.  The Department of Elderly

  2  Affairs shall make a separate and distinct request for an

  3  appropriation for the Statewide Public Guardianship Office.

  4  However, this section shall not be construed to preclude the

  5  financing of any operations of the office of the public

  6  guardian by moneys raised through local effort or through the

  7  efforts of the Statewide Public Guardianship Office. All

  8  public guardians who are funded in whole or in part by moneys

  9  raised through local efforts, grants, or any other source must

10  submit a budget to the Statewide Public Guardianship Office

11  annually.

12         Section 6.  Section 744.707, Florida Statutes, is

13  amended to read:

14         744.707  Procedures and rules.--The public guardian,

15  subject to the oversight of the Statewide Public Guardianship

16  Office, is authorized to:

17         (1)  Formulate and adopt necessary procedures to assure

18  the efficient conduct of the affairs of the ward and general

19  administration of the office and staff.

20         (2)  Contract for services necessary to discharge the

21  duties of the office.

22         (3)  Accept the services of volunteer persons or

23  organizations and provide reimbursement for proper and

24  necessary expenses.

25         Section 7.  Subsections (3), (4), (5), (7), and (8) of

26  section 744.708, Florida Statutes, are amended to read:

27         744.708  Reports and standards.--

28         (3)  A public guardian shall file an annual report on

29  the operations of the office of public guardian, in writing,

30  by September 1 for the preceding fiscal year with the

31  Statewide Public Guardianship Office, which chief judge of the

                                  10

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1998                                  SB 1178
    32-832-98                                               See HB




  1  judicial circuit who shall have responsibility for supervision

  2  of the operations of the office of public guardian.

  3         (4)  Within 6 months of his or her appointment as

  4  guardian of a ward, the public guardian shall submit to the

  5  clerk of the court for placement in the ward's guardianship

  6  file and to the executive director of the Statewide Public

  7  Guardianship Office the chief judge of the circuit a report on

  8  his or her efforts to locate a family member or friend, other

  9  person, bank, or corporation to act as guardian of the ward

10  and a report on the ward's potential to be restored to

11  capacity.

12         (5)  An independent audit by a qualified certified

13  public accountant shall be performed at least every 2 years.

14  The audit should include an investigation into the practices

15  of the office for managing the person and property of the

16  wards. A copy of the report shall be submitted to the

17  Statewide Public Guardianship Office.

18         (7)  The ratio for professional staff to wards shall be

19  1 professional to 40 wards.  The Statewide Public Guardianship

20  Office chief judge of the circuit upon application of the

21  public guardian, or upon the court's own motion, may enlarge

22  or recede from the ratio after consultation with the local

23  public guardian and the chief judge of the circuit court for

24  good cause. The basis of the decision to enlarge or recede

25  from the prescribed ratio shall be reported in the annual

26  report to the Governor, the President of the Senate, the

27  Speaker of the House of Representatives, and the Chief Justice

28  of the Supreme Court.

29         (8)  The term "professional," for purposes of this

30  part, shall not include the public guardian nor the executive

31  director of the Statewide Public Guardianship Office.  The

                                  11

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1998                                  SB 1178
    32-832-98                                               See HB




  1  term "professional" shall be limited to those persons who

  2  exercise direct supervision of individual wards under the

  3  direction of the public guardian.

  4         Section 8.  Subsection (3) of section 744.1085, Florida

  5  Statutes, is amended to read:

  6         744.1085  Regulation of professional guardians;

  7  application; bond required; educational requirements;

  8  audits.--

  9         (3)  Each professional guardian defined in s.

10  744.102(15), on October 1, 1997, must receive a minimum of 40

11  hours of instruction and training by October 1, 1998, or

12  within 1 year after becoming a professional guardian,

13  whichever occurs later.  Each professional guardian must

14  receive a minimum of 16 hours of continuing education every 2

15  calendar years after the year in which the initial 40-hour

16  educational requirement is met.  The instruction and education

17  must be completed through a course approved or offered by the

18  Statewide Public Guardianship Office chief judge of the

19  circuit court and taught by a court-approved organization. The

20  expenses incurred to satisfy the educational requirements

21  prescribed in this section may not be paid with the assets of

22  any ward. This subsection does not apply to any attorney who

23  is licensed to practice law in this state.

24         Section 9.  Section 744.3135, Florida Statutes, is

25  amended to read:

26         744.3135  Credit and criminal investigation.--The court

27  may require a prospective guardian and shall require a

28  professional guardian, to submit, at his or her own expense,

29  to an investigation of the prospective guardian's credit

30  history and an investigatory check by the National Crime

31  Information Center and the Florida Crime Information Center

                                  12

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1998                                  SB 1178
    32-832-98                                               See HB




  1  systems by means of fingerprint checks by the Department of

  2  Law Enforcement and the Federal Bureau of Investigation. The

  3  court shall waive the credit and criminal investigation for a

  4  guardian who is the spouse or child of the ward. The clerk of

  5  the court shall obtain fingerprint cards from the Federal

  6  Bureau of Investigation and make them available to guardians.

  7  Any guardian who is so required by this provision or by the

  8  court shall have his or her fingerprints taken and shall

  9  forward the proper fingerprint card along with the necessary

10  fee to the Florida Department of Law Enforcement for

11  processing. The results of the fingerprint checks shall be

12  forwarded to the clerk of court, who shall maintain the

13  results in a guardian file and shall make the results

14  available to the court. If credit or criminal investigations

15  are required, the court must consider the results of the

16  investigations in appointing a guardian.

17         Section 10.  Section 744.709, Florida Statutes, is

18  amended to read:

19         744.709  Surety bond.--Upon taking office, a public

20  guardian shall file a bond with surety as prescribed in s.

21  45.011 to be approved by the clerk. The bond shall be payable

22  to the Governor and the Governor's successors in office, in

23  the penal sum of not less than $5,000 nor more than $25,000,

24  conditioned on the faithful performance of all duties by the

25  guardian.  The amount of the bond shall be fixed by the

26  majority of the judges within the judicial circuit.  In form

27  the bond shall be joint and several. The bond shall be

28  purchased with funding provided in the funds appropriated to

29  the Statewide Public Guardianship Office judicial circuit for

30  the office of public guardian.

31

                                  13

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1998                                  SB 1178
    32-832-98                                               See HB




  1         Section 11.  Subsection (1) of section 28.241, Florida

  2  Statutes, is amended to read:

  3         28.241  Filing charges for trial and appellate

  4  proceedings.--

  5         (1)  The party instituting any civil action, suit, or

  6  proceeding in the circuit court shall pay to the clerk of that

  7  court a service charge of $40 in all cases in which there are

  8  not more than five defendants and an additional service charge

  9  of $2 for each defendant in excess of five.  An additional

10  service charge of $10 shall be paid by the party seeking each

11  severance that is granted. An additional service charge of $35

12  shall be paid to the clerk for all proceedings of garnishment,

13  attachment, replevin, and distress. An additional service

14  charge of $8 shall be paid to the clerk for each civil action

15  filed, $7 of such charge to be remitted by the clerk to the

16  State Treasurer for deposit into the General Revenue Fund

17  unallocated.  An additional charge of $2.50 shall be paid to

18  the clerk for each civil action brought in circuit or county

19  court, to be deposited into the Court Education Trust Fund;

20  the moneys collected shall be forwarded by the clerk to the

21  Supreme Court monthly for deposit in the fund.  Service

22  charges in excess of those herein fixed may be imposed by the

23  governing authority of the county by ordinance or by special

24  or local law; and such excess shall be expended as provided by

25  such ordinance or any special or local law, now or hereafter

26  in force, to provide and maintain facilities, including a law

27  library, for the use of the courts of the county wherein the

28  service charges are collected; to provide and maintain

29  equipment; or for a legal aid program in such county.  In

30  addition, the county is authorized to impose, by ordinance or

31  by special or local law, a fee of up to $10 for each civil

                                  14

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1998                                  SB 1178
    32-832-98                                               See HB




  1  action filed, for the establishment, maintenance, or

  2  supplementation of a public guardian pursuant to ss.

  3  744.701-744.708, inclusive.  Postal charges incurred by the

  4  clerk of the circuit court in making service by certified or

  5  registered mail on defendants or other parties shall be paid

  6  by the party at whose instance service is made. That part of

  7  the within fixed or allowable service charges which is not by

  8  local or special law applied to the special purposes shall

  9  constitute the total service charges of the clerk of such

10  court for all services performed by him or her in civil

11  actions, suits, or proceedings.  The sum of all service

12  charges and fees permitted under this subsection may not

13  exceed $200; however, the $200 cap may be increased to $210 in

14  order to provide for the establishment, maintenance, or

15  supplementation of a public guardian as indicated in this

16  subsection.

17         Section 12.  This act shall take effect October 1,

18  1998.

19

20            *****************************************

21                       LEGISLATIVE SUMMARY

22
      Creates the Statewide Public Guardianship Office within
23    the Department of Elderly Affairs to have oversight
      responsibility for all public guardians. (See bill for
24    details.)

25

26

27

28

29

30

31

                                  15