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





                                                  SENATE AMENDMENT

    Bill No. CS/HB 3883, 2nd Eng.

    Amendment No.    

                            CHAMBER ACTION
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10                                                                

11  Senator Forman moved the following amendment to amendment

12  (723774):

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14         Senate Amendment (with title amendment) 

15         On page 346, between lines 5 and 6,

16

17  insert:

18         Section 180.  Subsections (1) and (2) of section

19  744.369, Florida Statutes, are amended to read:

20         744.369  Judicial review of guardianship reports.--

21         (1)  The court shall review the initial guardianship

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

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

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

25  clerk's report of findings to the court.

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

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

28  require the general or special master to conduct random field

29  audits.

30         Section 181.  Section 744.702, Florida Statutes, is

31  amended to read:

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3883, 2nd Eng.

    Amendment No.    





 1         744.702  Legislative intent.--The Legislature finds

 2  that private guardianship is inadequate where there is no

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

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

 5  incapacitated person, and such person does not have adequate

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

 7  The Legislature intends through this act to establish the

 8  Statewide Public Guardianship Office, and permit the

 9  establishment of offices office of public guardian for the

10  purpose of providing guardianship services for incapacitated

11  persons when no private guardian is available. The Legislature

12  further finds that alternatives to guardianship and less

13  intrusive means of assistance should always be explored,

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

15  individual's rights are removed through an adjudication of

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

17  public guardian only to those persons whose needs cannot be

18  met through less drastic means of intervention. The Statewide

19  Public Guardianship Office may have the assistance of the

20  Inspector General of the Department of Elderly Affairs in

21  providing auditing services, and the Office of General Counsel

22  of the department shall provide assistance in rulemaking and

23  other matters as needed to assist the Statewide Public

24  Guardianship Office. The executive director of the Statewide

25  Public Guardianship Office shall establish a curriculum

26  committee to develop the training program specified in this

27  part. The curriculum committee shall include, but not be

28  limited to, probate judges.

29         Section 182.  Section 744.7021, Florida Statutes, is

30  created to read:

31         744.7021  Statewide Public Guardianship Office.--There

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3883, 2nd Eng.

    Amendment No.    





 1  is hereby created the Statewide Public Guardianship Office

 2  within the Department of Elderly Affairs. The Department of

 3  Elderly Affairs shall provide administrative support and

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

 5  director within the available resources of the department. The

 6  Statewide Public Guardianship Office shall not be subject to

 7  control, supervision, or direction by the Department of

 8  Elderly Affairs in the performance of its duties.

 9         (1)  The head of the Statewide Public Guardianship

10  Office is the executive director who shall be appointed by the

11  Governor. The executive director must be a licensed attorney

12  with a background in guardianship law and knowledge of social

13  services available to meet the needs of incapacitated persons,

14  shall serve on a full-time basis, and shall personally, or

15  through representatives of the office, carry out the purposes

16  and functions of the Statewide Public Guardianship Office in

17  accordance with state and federal law. The executive director

18  shall serve at the pleasure of and 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

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3883, 2nd Eng.

    Amendment No.    





 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         (3)  The office may conduct or contract for

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3883, 2nd Eng.

    Amendment No.    





 1  demonstration projects, within funds appropriated or through

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

 3  determine the feasibility or desirability of new concepts of

 4  organization, administration, financing, or service delivery

 5  designed to preserve the civil and constitutional rights of

 6  indigent persons of marginal or diminished capacity due to the

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

 8  related memory disorders, organic brain damage, or other

 9  physical, mental, or emotional dysfunctioning. The

10  demonstration projects should endeavor to address emergency

11  needs of affected persons prior to judicial intervention, to

12  utilize alternatives to guardianship, when possible, and to

13  develop innovative linkages between existing programs and

14  services including those funded through the Department of

15  Elderly Affairs Alzheimer's Disease Initiative and related

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

17  enforcement.

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

19  requirements of chapter 120 to carry out the provisions of

20  this section.

21         Section 183.  Section 744.703, Florida Statutes, is

22  amended to read:

23         744.703  Office of public guardian; appointment,

24  notification.--

25         (1)  The executive director of the Statewide Public

26  Guardianship Office The chief judge of the judicial circuit,

27  after consultation with the chief judge and other circuit

28  judges within the judicial circuit and with appropriate

29  advocacy groups and individuals and organizations who are

30  knowledgeable about the needs of incapacitated persons, may

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

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3883, 2nd Eng.

    Amendment No.    





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

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

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

 4  process and knowledge of social services available to meet the

 5  needs of incapacitated persons.  A nonprofit corporation under

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

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

 8  United States Internal Revenue Service; and

 9         (b)  It maintains a staff of professionally qualified

10  individuals to carry out the guardianship functions, including

11  a staff attorney who has experience in probate areas and

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

13  gerontologist, psychologist, registered nurse, or nurse

14  practitioner.

15         (2)  The executive director chief judge shall appoint

16  the public guardian from the list of candidates described in

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

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

19  appointment of the public guardian, the executive director

20  chief judge shall notify the chief judge of the judicial

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

22  in writing, of the appointment.

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

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

25  guardian may be appointed at reduced compensation.

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

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

28  interest.

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

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

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

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3883, 2nd Eng.

    Amendment No.    





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

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

 3  If a public guardian is suspended, the executive director

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

 5  serve until such time as the public guardian is reinstated or

 6  a permanent replacement is selected. A public guardian may be

 7  removed from office during the term of office only by the

 8  executive director who must consult with the chief judge prior

 9  to said removal. A recommendation of removal made by the chief

10  judge must be considered by the executive director. Removal of

11  the public guardian from office during the term of office must

12  be by the chief judge. This section does not limit the

13  application of ss. 744.474 and 744.477.

14         (6)  Public guardians appointed by a chief judge

15  pursuant to this section may continue in their positions until

16  the expiration of the term pursuant to their agreement with

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

18  shall transfer to the Statewide Public Guardianship Office

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

20  the Statewide Public Guardianship Office shall be responsible

21  for all future appointments of public guardians pursuant to

22  this act.

23         Section 184.  Section 744.706, Florida Statutes, is

24  amended to read:

25         744.706  Preparation of budget.--Each public guardian

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

27  public guardian to be submitted to the Statewide Public

28  Guardianship Office chief judge of the judicial circuit for

29  inclusion in the Department of Elderly Affairs' circuit

30  courts' legislative budget request.  The office of public

31  guardian shall be operated within the limitations of the

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3883, 2nd Eng.

    Amendment No.    





 1  General Appropriations Act and any other funds appropriated by

 2  the Legislature to that particular judicial circuit, subject

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

 4  Affairs shall make a separate and distinct request for an

 5  appropriation for the Statewide Public Guardianship Office.

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

 7  financing of any operations of the office of the public

 8  guardian by moneys raised through local effort or through the

 9  efforts of the Statewide Public Guardianship Office. All

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

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

12  submit a copy of their budget to the Statewide Public

13  Guardianship Office annually.

14         Section 185.  Section 744.707, Florida Statutes, is

15  amended to read:

16         744.707  Procedures and rules.--The public guardian,

17  subject to the oversight of the Statewide Public Guardianship

18  Office, is authorized to:

19         (1)  Formulate and adopt necessary procedures to assure

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

21  administration of the office and staff.

22         (2)  Contract for services necessary to discharge the

23  duties of the office.

24         (3)  Accept the services of volunteer persons or

25  organizations and provide reimbursement for proper and

26  necessary expenses.

27         Section 186.  Subsections (3), (4), (5), (7), and (8)

28  of section 744.708, Florida Statutes, are amended to read:

29         744.708  Reports and standards.--

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

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

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3883, 2nd Eng.

    Amendment No.    





 1  by September 1 for the preceding fiscal year with the

 2  Statewide Public Guardianship Office chief judge of the

 3  judicial circuit who shall have responsibility for supervision

 4  of the operations of the office of public guardian.

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

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

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

 8  file and to the executive director of the Statewide Public

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

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

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

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

13  capacity.

14         (5)  An independent audit by a qualified certified

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

16  The audit should include an investigation into the practices

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

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

19  Statewide Public Guardianship Office. In addition, the office

20  of public guardian shall be subject to audits by the Auditor

21  General pursuant to s. 11.45.

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

23  1 professional to 40 wards.  The Statewide Public Guardianship

24  Office chief judge of the circuit upon application of the

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

26  or recede from the ratio after consultation with the local

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

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

29  from the prescribed ratio shall be reported in the annual

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

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

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3883, 2nd Eng.

    Amendment No.    





 1  of the Supreme Court.

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

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

 4  director of the Statewide Public Guardianship Office.  The

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

 6  exercise direct supervision of individual wards under the

 7  direction of the public guardian.

 8         Section 187.  Subsection (3) of section 744.1085,

 9  Florida Statutes, is amended to read:

10         744.1085  Regulation of professional guardians;

11  application; bond required; educational requirements;

12  audits.--

13         (3)  Each professional guardian defined in s.

14  744.102(15), on October 1, 1997, must receive a minimum of 40

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

16  within 1 year after becoming a professional guardian,

17  whichever occurs later.  Each professional guardian must

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

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

20  educational requirement is met.  The instruction and education

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

22  Statewide Public Guardianship Office chief judge of the

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

24  expenses incurred to satisfy the educational requirements

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

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

27  is licensed to practice law in this state.

28         Section 188.  Section 744.3135, Florida Statutes, is

29  amended to read:

30         744.3135  Credit and criminal investigation.--The court

31  may require a prospective guardian and shall require a

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3883, 2nd Eng.

    Amendment No.    





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

 2  to an investigation of the prospective guardian's credit

 3  history and an investigatory check by the National Crime

 4  Information Center and the Florida Crime Information Center

 5  systems by means of fingerprint checks by the Department of

 6  Law Enforcement and the Federal Bureau of Investigation. The

 7  court shall waive the credit and criminal investigation for a

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

 9  the court shall obtain fingerprint cards from the Federal

10  Bureau of Investigation and make them available to guardians.

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

12  court shall have his or her fingerprints taken and forward the

13  proper fingerprint card along with the necessary fee to the

14  Florida Department of Law Enforcement for processing. The

15  prospective professional guardian shall pay to the clerk of

16  the court a fee of $5 for handling and processing professional

17  guardian files. The results of the fingerprint checks shall be

18  forwarded to the clerk of court who shall maintain the results

19  in a guardian file and shall make the results available to the

20  court. If credit or criminal investigations are required, the

21  court must consider the results of the investigations in

22  appointing a guardian.

23         Section 189.  Subsection (1) of section 28.241, Florida

24  Statutes, is amended to read:

25         28.241  Filing charges for trial and appellate

26  proceedings.--

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

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

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

30  not more than five defendants and an additional service charge

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

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3883, 2nd Eng.

    Amendment No.    





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

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

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

 4  attachment, replevin, and distress. An additional service

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

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

 7  State Treasurer for deposit into the General Revenue Fund

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

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

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

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

12  Supreme Court monthly for deposit in the fund.  Service

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

14  governing authority of the county by ordinance or by special

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

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

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

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

19  service charges are collected; to provide and maintain

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

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

22  by special or local law, a fee of up to $15 $10 for each civil

23  action filed, for the establishment, maintenance, or

24  supplementation of a public guardian pursuant to ss.

25  744.701-744.708, inclusive.  Postal charges incurred by the

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

27  registered mail on defendants or other parties shall be paid

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

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

30  local or special law applied to the special purposes shall

31  constitute the total service charges of the clerk of such

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3883, 2nd Eng.

    Amendment No.    





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

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

 3  charges and fees permitted under this subsection may not

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

 5  order to provide for the establishment, maintenance, or

 6  supplementation of a public guardian as indicated in this

 7  subsection.

 8         Section 190.  There is hereby appropriated from the

 9  General Revenue fund in a lump sum to the Department of Elder

10  Affairs the sum of $300,000 in order to carry out the purposes

11  of this act.

12         Section 191.  All powers, duties and functions,

13  records, personnel, property, and unexpended balances of

14  appropriations, allocations, or other funds relating to the

15  public guardianship program under Chapter 744, Florida

16  Statutes, are transferred by a type two transfer, as defined

17  in s. 20.06(2), Florida Statutes, from the Circuit Court

18  budget entity within the Judicial Branch to the Department of

19  Elder Affairs.

20

21  (Redesignate subsequent sections.)

22

23

24  ================ T I T L E   A M E N D M E N T ===============

25  And the title is amended as follows:

26         On page 360, line 11, after the semicolon

27

28  insert:

29         amending s. 744.369, F.S.; extending the time

30         to review certain reports; authorizing random

31         field audits; amending s. 744.702, F.S.;

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3883, 2nd Eng.

    Amendment No.    





 1         providing legislative intent to establish the

 2         Statewide Public Guardianship Office; directing

 3         the Department of Elderly Affairs to provide

 4         certain services and support; creating s.

 5         744.7021, F.S.; providing for the Statewide

 6         Public Guardianship Office within the

 7         Department of Elderly Affairs; providing for an

 8         executive director and oversight

 9         responsibilities; requiring submission of a

10         guardianship plan and yearly status reports to

11         the Governor, the President of the Senate, the

12         Speaker of the House of Representatives, and

13         the Chief Justice of the Supreme Court;

14         requiring the office to develop a training

15         program; authorizing demonstration projects;

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

17         providing for the executive director to

18         establish offices of public guardian and to

19         appoint public guardians; providing for

20         transfer of oversight responsibility from the

21         chief judge of the circuit to the office;

22         providing for the suspension of public

23         guardians, as specified; amending s. 744.706,

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

25         budget of the Statewide Public Guardianship

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

27         language with respect to procedures and rules

28         to include reference to the Statewide Public

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

30         revising language with respect to reports and

31         standards; providing reference to audits by the

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3883, 2nd Eng.

    Amendment No.    





 1         Auditor General; amending s. 744.1085, F.S.;

 2         revising language with respect to professional

 3         guardians to include reference to the Statewide

 4         Public Guardianship Office; amending s.

 5         744.3135, F.S.; providing a procedure for

 6         obtaining fingerprint cards and for maintaining

 7         the results of certain investigations; amending

 8         s. 28.241, F.S.; providing for funds for public

 9         guardians; providing for an appropriation;

10         providing for a transfer of resources between

11         agencies;

12

13         WHEREAS, the Legislature has recognized that private

14  guardianship is inadequate when there is no willing and

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

16  corporation available to serve as guardian for an

17  incapacitated person, and such person does not have adequate

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

19  and

20         WHEREAS, a few judicial circuits have been able to

21  establish public guardianship programs to provide guardianship

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

23  additional circuits would like to have public guardians

24  available, and

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

26  going without this service which is necessary for the exercise

27  of an incapacitated person's constitutional rights, and

28         WHEREAS, the Legislature recognizes the need for a

29  statewide office to assist in finding ways to meet the

30  guardianship needs of incapacitated citizens, and

31         WHEREAS, there is a growing problem in Florida

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3883, 2nd Eng.

    Amendment No.    





 1  involving functionally incapacitated persons who are unable to

 2  access needed services, and

 3         WHEREAS, the magnitude of this compelling problem

 4  demands legislative action to protect our state's most

 5  vulnerable citizens, NOW, THEREFORE,

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