Senate Bill sb1782

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    Florida Senate - 2003                                  SB 1782

    By Senator Saunders





    37-144-03

  1                      A bill to be entitled

  2         An act relating to guardianship; amending s.

  3         744.108, F.S.; providing for payment of

  4         attorney's fees and costs incurred on behalf of

  5         an indigent ward; amending s. 744.1085, F.S.;

  6         requiring all guardians to post a bond;

  7         revising training requirements for guardians;

  8         requiring a professional guardian to file a

  9         statement with the court attesting completion

10         of education requirements and compliance with

11         other requirements; amending s. 744.331, F.S.;

12         requiring that the court appoint an examining

13         committee for an alleged incapacitated person

14         without influence by other interested parties;

15         requiring that such person be examined in his

16         or her residential setting if possible;

17         authorizing the court to order that an

18         appropriate less-restrictive alternative be

19         implemented for a person who is declared to be

20         incapacitated; revising requirements for the

21         award of fees; amending s. 744.344, F.S.;

22         clarifying provisions requiring the least

23         restrictive form of guardianship for an

24         incapacitated person; amending s. 744.365,

25         F.S.; requiring the presence of a witness

26         during the inventory of a ward's personal

27         property; amending s. 744.3678, F.S.; requiring

28         that the guardian obtain a receipt and

29         cancelled check for all expenditures and

30         disbursements made on behalf of the ward;

31         deleting a fee required for certain estates

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  1         when filing the annual financial return;

  2         amending s. 518.11, F.S.; specifying that a

  3         fiduciary acting as the guardian of an

  4         incapacitated ward has a duty to procure

  5         certain benefits; authorizing the guardian to

  6         take certain actions to procure such benefits;

  7         providing an effective date.

  8

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

10

11         Section 1.  Subsection (1) of section 744.108, Florida

12  Statutes, is amended to read:

13         744.108  Guardian's and attorney's fees and expenses.--

14         (1)  A guardian, or an attorney who has rendered

15  services to the ward or to the guardian on the ward's behalf,

16  is entitled to a reasonable fee for services rendered and

17  reimbursement for costs incurred on behalf of the ward. If the

18  ward is indigent and does not qualify for a public guardian,

19  the fees and costs incurred by the attorney on behalf of the

20  ward shall be paid by the county.

21         Section 2.  Section 744.1085, Florida Statutes, is

22  amended to read:

23         744.1085  Regulation of professional guardians;

24  application; bond required; educational requirements.--

25         (1)  The provisions of this section are in addition to

26  and supplemental to any other provision of the Florida

27  Guardianship Law, except s. 744.3145.

28         (2)  Each professional guardian who files a petition

29  for appointment after October 1, 1997, shall post a blanket

30  fiduciary bond with the clerk of the circuit court in the

31  county in which the guardian's primary place of business is

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    Florida Senate - 2003                                  SB 1782
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  1  located.  The guardian shall provide proof of the fiduciary

  2  bond to the clerks of each additional circuit court in which

  3  he or she is serving as a professional guardian. The bond

  4  shall be maintained by the guardian in an amount not less than

  5  $50,000.  The bond must cover all wards for whom the guardian

  6  has been appointed at any given time.  The liability of the

  7  provider of the bond is limited to the face amount of the

  8  bond, regardless of the number of wards for whom the

  9  professional guardian has been appointed. The act or omissions

10  of each employee of a professional guardian who has direct

11  contact with the ward or access to the ward's assets is

12  covered by the terms of such bond.  The bond must be payable

13  to the Governor of the State of Florida and his or her

14  successors in office and conditioned on the faithful

15  performance of all duties by the guardian.  In form, the bond

16  must be joint and several.  The bond is in addition to any

17  bonds required under s. 744.351. This subsection does not

18  apply to any attorney who is licensed to practice law in this

19  state and who is in good standing, to any financial

20  institution as defined in s. 744.309(4), or to a public

21  guardian. The expenses incurred to satisfy the bonding

22  requirements prescribed in this section may not be paid with

23  the assets of any ward.

24         (3)  Each individual who is a professional guardian, as

25  defined in s. 744.102(15), on July 1, 2003 October 1, 1997,

26  must receive a minimum of 40 hours of instruction and training

27  by January 1, 2004. On or after July 1, 2003, the court may

28  not issue a letter of appointment for an individual to act as

29  a professional guardian until the individual has completed all

30  requirements for instruction and training. October 1, 1998, or

31  within 1 year after becoming a professional guardian,

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  1  whichever occurs later.  Each professional guardian must

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

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

  4  educational requirement is met.  The instruction and education

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

  6  Statewide Public Guardianship Office. The expenses incurred to

  7  satisfy the educational requirements prescribed in this

  8  section may not be paid with the assets of any ward. This

  9  subsection does not apply to any attorney who is licensed to

10  practice law in this state.

11         (4)  Each professional guardian must file with the

12  court, and update every 2 years, a written and notarized

13  statement that indicates the date the professional guardian

14  completed the education requirements and attests to the

15  professional guardian's knowledge of the requirements for

16  continuing education and satisfaction of the bond

17  requirements. Each professional guardian must file the

18  statement with the court prior to appointment in a case for

19  compensation. This subsection does not apply to an attorney

20  who is licensed to practice law in this state.

21         Section 3.  Paragraphs (a) and (b) of subsection (3),

22  paragraph (b) of subsection (6), and paragraph (b) of

23  subsection (7) of section 744.331, Florida Statutes, are

24  amended to read:

25         744.331  Procedures to determine incapacity.--

26         (3)  EXAMINING COMMITTEE.--

27         (a)  Within 5 days after a petition for determination

28  of incapacity has been filed, the court shall appoint an

29  examining committee consisting of three members. The court

30  shall determine the composition of the examining committee

31  without influence or predetermination by the petitioner, an

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  1  attorney for an interested party, or any other interested

  2  party. One member must be a psychiatrist or other physician.

  3  The remaining members must be either a psychologist,

  4  gerontologist, another psychiatrist, or other physician, a

  5  registered nurse, nurse practitioner, licensed social worker,

  6  a person with an advanced degree in gerontology from an

  7  accredited institution of higher education, or other person

  8  who by knowledge, skill, experience, training, or education

  9  may, in the court's discretion, advise the court in the form

10  of an expert opinion. One of three members of the committee

11  must have knowledge of the type of incapacity alleged in the

12  petition.  Unless good cause is shown, the attending or family

13  physician may not be appointed to the committee.  If the

14  attending or family physician is available for consultation,

15  the committee must consult with the physician.  Members of the

16  examining committee may not be related to or associated with

17  one another or with the petitioner or the person alleged to be

18  totally or partially incapacitated.  A member may not be

19  employed by any private or governmental agency that has

20  custody of, or furnishes, services or subsidies, directly or

21  indirectly, to the person or the family of the person alleged

22  to be incapacitated or for whom a guardianship is sought.  A

23  petitioner may not serve as a member of the examining

24  committee. Members of the examining committee must be able to

25  communicate, either directly or through an interpreter, in the

26  language that the alleged incapacitated person speaks or to

27  communicate in a medium understandable to the alleged

28  incapacitated person if she or he is able to communicate.

29         (b)  Each member of the examining committee shall

30  examine the person in the person's usual residental setting,

31  if possible. The examining committee shall determine the

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  1  alleged incapacitated person's ability to exercise those

  2  rights specified in s. 744.3215.  In addition to the

  3  examination, the examining committee shall have access to, and

  4  may consider, previous examinations of the person, including,

  5  but not limited to, habilitation plans, school records, and

  6  psychological and psychosocial reports voluntarily offered for

  7  use by the alleged incapacitated person.  The examining

  8  committee shall submit a report within 15 days after

  9  appointment.

10         (6)  ORDER DETERMINING INCAPACITY.--If, after making

11  findings of fact on the basis of clear and convincing

12  evidence, the court finds that a person is incapacitated with

13  respect to the exercise of a particular right, or all rights,

14  the court shall enter a written order determining such

15  incapacity. A person is determined to be incapacitated only

16  with respect to those rights specified in the order.

17         (b)  In any order declaring a person incapacitated the

18  court must find that:

19         1.  An appropriate less-restrictive alternative must be

20  implemented; or alternatives to guardianship were considered

21  and that

22         2.  No alternative to guardianship will sufficiently

23  address the problems of the ward.

24         (7)  FEES.--

25         (b)  The fees awarded under paragraph (a) shall be paid

26  by the guardian from the property of the ward or, if the ward

27  is indigent, by the county.  The county shall have a

28  creditor's claim against the guardianship property for any

29  amounts paid under this section. The county must file its

30  claim within 90 days after the entry of an order awarding

31  attorney ad litem fees.  If the county does not file its claim

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  1  on all interested parties within the 90-day period, the county

  2  is thereafter barred from asserting the claim.  Upon petition

  3  by the county for payment of the claim, the court shall,

  4  except in the case of an indigent ward, enter an order

  5  authorizing immediate payment out of the property of the ward.

  6  The board of county commissioners shall keep a record of such

  7  payments.

  8         Section 4.  Subsection (2) of section 744.344, Florida

  9  Statutes, is amended to read:

10         744.344  Order of appointment.--

11         (2)  The order appointing a guardian must be consistent

12  with the incapacitated person's welfare and safety, must be

13  the least restrictive form of guardianship appropriate for the

14  incapacitated person alternative, and must reserve to the

15  incapacitated person the right to make decisions in all

16  matters commensurate with the person's ability to do so.

17         Section 5.  Subsection (2) of section 744.365, Florida

18  Statutes, is amended to read:

19         744.365  Verified inventory.--

20         (2)  CONTENTS.--The verified inventory must include the

21  following:

22         (a)  All property of the ward, real and personal, that

23  has come into the guardian's possession or knowledge,

24  including a statement of all encumbrances, liens, and other

25  secured claims on any item, any claims against the property,

26  and any cause of action accruing to the ward.;

27         (b)  The location of the real and personal property in

28  sufficient detail so that it may be clearly identified or

29  located. A witness must be present during the inventory of the

30  ward's personal property and the guardian must identify each

31  witness present by name, address, and occupation.; and

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  1         (c)  A description of all sources of income, including,

  2  without limitation, social security benefits and pensions.

  3         Section 6.  Subsections (3) and (4) of section

  4  744.3678, Florida Statutes, are amended to read:

  5         744.3678  Annual accounting.--

  6         (3)  The guardian must obtain a receipt and or canceled

  7  check for all expenditures and disbursements made on behalf of

  8  the ward.  The guardian must preserve the receipts and

  9  canceled checks, along with other substantiating papers, for a

10  period of 3 years after his or her discharge.  The receipts,

11  checks, and substantiating papers need not be filed with the

12  court but shall be made available for inspection and review at

13  such time and in such place and before such persons as the

14  court may from time to time order.

15         (4)  The guardian shall pay from the ward's estate to

16  the clerk of the circuit court a fee based upon the following

17  graduated fee schedule, upon the filing of the annual

18  financial return, for the auditing of the return:

19         (a)  For estates with a value of $25,000 or less the

20  fee shall be $0 $10.

21         (b)  For estates with a value of more than $25,000 up

22  to and including $100,000 the fee shall be $50.

23         (c)  For estates with a value of more than $100,000 up

24  to and including $500,000 the fee shall be $100.

25         (d)  For estates with a value in excess of $500,000 the

26  fee shall be $150.

27

28  Any guardian unable to pay the auditing fee may petition the

29  court for a waiver of the fee.  The court may waive the fee

30  after it has reviewed the documentation filed by the guardian

31  in support of the waiver.  Upon such waiver, the clerk of the

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    Florida Senate - 2003                                  SB 1782
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  1  circuit court shall bill the board of county commissioners for

  2  the auditing fee.

  3         Section 7.  Paragraph (g) is added to subsection (1) of

  4  section 518.11, Florida Statutes, to read:

  5         518.11  Investments by fiduciaries; prudent investor

  6  rule.--

  7         (1)  A fiduciary has a duty to invest and manage

  8  investment assets as follows:

  9         (g)  A fiduciary acting as the guardian of the person

10  or property of an incapacitated ward has a duty to procure the

11  employment and government benefits to which the ward, or the

12  ward's spouse or children, are entitled. The fiduciary shall

13  take action as necessary, including executing documents and

14  obtaining court orders, to procure such benefits.

15         Section 8.  This act shall take effect July 1, 2003.

16

17            *****************************************

18                          SENATE SUMMARY

19    Revises various provisions of the Florida Guardianship
      Law. Requires that the county pay attorney's fees and
20    costs for an indigent ward. Requires guardians to post a
      bond. Revises training requirements for guardians.
21    Revises requirements for an examining committee for an
      alleged incapacitated person. Requires that a witness be
22    present during an inventory of property. Deletes a filing
      fee required for estates with a value of $25,000 or less.
23    (See bill for details.)

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