Senate Bill sb1016c1

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    Florida Senate - 2001                           CS for SB 1016

    By the Committee on Judiciary and Senator Rossin





    308-1565-01

  1                      A bill to be entitled

  2         An act relating to guardianship; amending s.

  3         744.387, F.S.; raising the amount of a claim

  4         that may be settled by a natural guardian of a

  5         minor without the necessity of appointment of a

  6         legal guardian; amending s. 744.301, F.S.;

  7         raising the amount of a claim that may be

  8         settled by a natural guardian of a minor

  9         without the necessity of appointment of a

10         guardian ad litem; amending s. 744.3215, F.S.;

11         restricting authority of guardian to withdraw

12         or withhold life-prolonging procedures without

13         prior specific court authority; providing an

14         effective date.

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

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18         Section 1.  Section 744.387, Florida Statutes, is

19  amended to read:

20         744.387  Settlement of claims.--

21         (1)  When a settlement of any claim by or against the

22  guardian, whether arising as a result of personal injury or

23  otherwise, and whether arising before or after appointment of

24  a guardian, is proposed, but before an action to enforce it is

25  begun, on petition by the guardian of the property stating the

26  facts of the claim, question, or dispute and the proposed

27  settlement, and on any evidence that is introduced, the court

28  may enter an order authorizing the settlement if satisfied

29  that the settlement will be for the best interest of the ward.

30  The order shall relieve the guardian from any further

31  responsibility in connection with the claim or dispute when

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    Florida Senate - 2001                           CS for SB 1016
    308-1565-01




  1  the settlement has been made in accordance with the order.

  2  The order authorizing the settlement may also determine

  3  whether an additional bond is required and, if so, shall fix

  4  the amount of it.

  5         (2)  In the same manner as provided in subsection (1)

  6  or as authorized by s. 744.301, the natural guardians or

  7  guardian of a minor may settle any claim by or on behalf of a

  8  minor that does not exceed $15,000 $5,000 without bond.  A

  9  legal guardianship shall be required when the amount of the

10  net settlement to the ward exceeds $15,000 $5,000.

11         (3)(a)  No settlement after an action has been

12  commenced by or on behalf of a ward shall be effective unless

13  approved by the court having jurisdiction of the action.

14         (b)  In the event of settlement or judgment in favor of

15  the ward or minor, the court may authorize the natural

16  guardians or guardian, or a guardian of the property appointed

17  by a court of competent jurisdiction, to collect the amount of

18  the settlement or judgment and to execute a release or

19  satisfaction.  When the amount of net settlement to the ward

20  or judgment exceeds $15,000 $5,000 and no guardian has been

21  appointed, the court shall require the appointment of a

22  guardian for the property.

23         (4)  In making a settlement under court order as

24  provided in this section, the guardian is authorized to

25  execute any instrument that may be necessary to effect the

26  settlement.  When executed, the instrument shall be a complete

27  release of the person making the settlement.

28         Section 2.  Subsections (2) and (4) of section 744.301,

29  Florida Statutes, are amended to read:

30         744.301  Natural guardians.--

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    Florida Senate - 2001                           CS for SB 1016
    308-1565-01




  1         (2)  The natural guardian or guardians are authorized,

  2  on behalf of any of their minor children, to settle and

  3  consummate a settlement of any claim or cause of action

  4  accruing to any of their minor children for damages to the

  5  person or property of any of said minor children and to

  6  collect, receive, manage, and dispose of the proceeds of any

  7  such settlement and of any other real or personal property

  8  distributed from an estate or trust or proceeds from a life

  9  insurance policy to, or otherwise accruing to the benefit of,

10  the child during minority, when the amount involved in any

11  instance does not exceed $15,000 $5,000, without appointment,

12  authority, or bond.

13         (4)(a)  In any case where a minor has a claim for

14  personal injury, property damage, or wrongful death in which

15  the gross settlement for the claim of the minor equals or

16  exceeds $15,000 $10,000, the court may, prior to the approval

17  of the settlement of the minor's claim, appoint a guardian ad

18  litem to represent the minor's interests.  In any case in

19  which the gross settlement involving a minor equals or exceeds

20  $25,000, the court shall, prior to the approval of the

21  settlement of the minor's claim, appoint a guardian ad litem

22  to represent the minor's interests.  The appointment of the

23  guardian ad litem must be without the necessity of bond or a

24  notice.  The duty of the guardian ad litem is to protect the

25  minor's interests.  The procedure for carrying out that duty

26  is as prescribed in the Florida Probate Rules.  If a legal

27  guardian of the minor has previously been appointed and has no

28  potential adverse interest to the minor, the court may not

29  appoint a guardian ad litem to represent the minor's

30  interests, unless the court determines that the appointment is

31  otherwise necessary.

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    Florida Senate - 2001                           CS for SB 1016
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  1         (b)  Unless waived, the court shall award reasonable

  2  fees and costs to the guardian ad litem to be paid out of the

  3  gross proceeds of the settlement.

  4         Section 3.  Subsection (4) of section 744.3215, Florida

  5  Statutes, is amended to read:

  6         744.3215  Rights of persons determined incapacitated.--

  7         (4)  Without first obtaining specific authority from

  8  the court, as described in s. 744.3725, a guardian may not:

  9         (a)  Commit the ward to a facility, institution, or

10  licensed service provider without formal placement proceeding,

11  pursuant to chapter 393, chapter 394, or chapter 397.

12         (b)  Consent on behalf of the ward to the performance

13  on the ward of any experimental biomedical or behavioral

14  procedure or to the participation by the ward in any

15  biomedical or behavioral experiment.  The court may permit

16  such performance or participation only if:

17         1.  It is of direct benefit to, and is intended to

18  preserve the life of or prevent serious impairment to the

19  mental or physical health of the ward; or

20         2.  It is intended to assist the ward to develop or

21  regain his or her abilities.

22         (c)  Initiate a petition for dissolution of marriage

23  for the ward.

24         (d)  Consent on behalf of the ward to termination of

25  the ward's parental rights.

26         (e)  Consent on behalf of the ward to the performance

27  of a sterilization or abortion procedure on the ward.

28         (f)  Consent to or otherwise direct on behalf of the

29  ward to withdraw or withhold life-prolonging procedures. Any

30  authority exercised under this paragraph must comply with

31  chapter 765.

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    Florida Senate - 2001                           CS for SB 1016
    308-1565-01




  1         Section 4.  This act shall take effect July 1, 2001.

  2

  3          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  4                             SB 1016

  5

  6  Amends s. 744.301, F.S., relating to the authority of natural
    guardians to settle claims or suits on behalf of a minor for
  7  specified threshold amounts without court appointment of a
    guardian ad litem, to conform with the increase in the
  8  threshold amount from $5,000 to $15,000 in s. 744.387, F.S.,
    as amended by the bill.
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    Amends s. 744.3215, F.S., to restrict the authority of
10  guardians to consent to or otherwise withhold or withdraw
    life-prolonging procedures without prior court approval.
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