HB 0457

CS

CHAMBER ACTION

1	The Future of Florida's Families Committee recommends the
2	following:
3
4	Council/Committee Substitute
5	Remove the entire bill and insert:
6	A bill to be entitled
7	An act relating to guardianship; amending s. 737.2065,
8	F.S.; excepting the contesting of trust validity by
9	property guardians of incapacitated grantors from a
10	prohibition against commencing certain actions; amending
11	s. 744.107, F.S.; revising provisions relating to court
12	monitors; requiring orders of appointment and monitors'
13	reports to be served upon certain persons; authorizing the
14	court to determine which persons may inspect certain
15	orders or reports; authorizing the court to enter any
16	order necessary to protect a ward or ward's estate;
17	requiring notice and hearing; authorizing a court to
18	assess certain costs and attorney's fees under certain
19	circumstances; creating s. 744.1075, F.S.; authorizing a
20	court to appoint a court monitor on an emergency basis
21	under certain circumstances; requiring the court to make
22	certain findings; requiring the monitor to report findings
23	and recommendations; providing duties of the court
24	relating to probable cause for the emergency appointment;
25	authorizing the court to determine which persons may
26	inspect certain orders or reports; providing requirements
27	for a court order to show cause for the emergency
28	appointment; specifying a time period for a monitor's
29	authority; providing for extending such time period;
30	authorizing the court to issue certain injunctions or
31	orders for certain purposes; requiring the court to
32	provide copies of such injunctions or orders to all
33	parties; authorizing the court to impose sanctions or take
34	certain enforcement actions; providing for payment of
35	reasonable fees to the monitor; prohibiting certain
36	persons from receiving certain fees; authorizing a court
37	to assess certain costs and attorney's fees under certain
38	circumstances; amending s. 744.331, F.S.; requiring a
39	court to determine whether acceptable alternatives to
40	guardianship of incapacitated persons exist under certain
41	circumstances; requiring appointment of a guardian if no
42	alternative exists; prohibiting such appointment if an
43	alternative exists; specifying circumstances of
44	nonexistence of an alternative; preserving certain court
45	authority to determine exercise of certain powers of
46	attorney; amending s. 744.441, F.S.; requiring a court to
47	make certain findings in a ward's best interest before
48	authorizing a guardian to bring certain actions; requiring
49	a court to review certain continuing needs for guardians
50	and delegation of a ward's rights; creating s. 744.462,
51	F.S.; requiring guardians to immediately report certain
52	judicial determinations in certain guardianship
53	proceedings; requiring a court to review certain
54	continuing needs for guardians and delegation of a ward's
55	rights under certain circumstances; providing an effective
56	date.
57
58	Be It Enacted by the Legislature of the State of Florida:
59
60	Section 1.  Section 737.2065, Florida Statutes, is amended
61	to read:
62	737.2065  Trust contests.--An action to contest the
63	validity of all or part of a trust may not be commenced until
64	the trust becomes irrevocable, except this section shall not
65	prohibit such action by the guardian of the property of an
66	incapacitated grantor.
67	Section 2.  Section 744.107, Florida Statutes, is amended
68	to read:
69	744.107  Court monitors.--
70	(1)  The court may, upon inquiry from any interested person
71	or upon its own motion in any proceeding over which it has
72	jurisdiction, appoint a monitor. The court shall not appoint as
73	a monitor a family member or any person with a personal interest
74	in the proceedings. The order of appointment shall be served
75	upon the guardian, the ward, and such other persons as the court
76	may determine.
77	(2)  The monitor may investigate, seek information, examine
78	documents, or interview the ward and shall report to the court
79	his or her findings. The report shall be verified and shall be
80	served on the guardian, the ward, and such other persons as the
81	court may determine. The court shall not appoint as a monitor a
82	family member or any person with a personal interest in the
83	proceedings.
84	(3)  If it appears from the monitor's report that further
85	action by the court to protect the interests of the ward is
86	necessary, the court shall, after a hearing with notice, enter
87	any order necessary to protect the ward or the ward's estate,
88	including amending the plan, requiring an accounting, ordering
89	production of assets, freezing assets, suspending the guardian,
90	or initiating proceedings to remove a guardian.
91	(4)  Unless otherwise prohibited by law, a monitor may be
92	allowed a reasonable fee as determined by the court and paid
93	from the property of the ward. No full-time state, county, or
94	municipal employee or officer shall be paid a fee for such
95	investigation and report. If the court finds the motion for
96	court monitor to have been filed in bad faith, the costs of the
97	proceeding, including attorney's fees, may be assessed against
98	the movant.
99	Section 3.  Section 744.1075, Florida Statutes, is created
100	to read:
101	744.1075  Emergency court monitor.--
102	(1)  A court, upon inquiry from any interested person or
103	upon its own motion, in any proceeding over which the court has
104	jurisdiction, may appoint a court monitor on an emergency basis
105	without notice. The court must specifically find that there
106	appears to be imminent danger that the physical or mental health
107	or safety of the ward will be seriously impaired or that the
108	ward's property is in danger of being wasted, misappropriated,
109	or lost unless immediate action is taken. The scope of the
110	matters to be investigated and the powers and duties of the
111	monitor must be specifically enumerated by court order.
112	(2)  Within 15 days after the entry of the order of
113	appointment, the monitor shall file his or her report of
114	findings and recommendations to the court. The report shall be
115	verified and may be supported by documents or other evidence.
116	(3)  Upon review of the report, the court shall determine
117	whether there is probable cause to take further action to
118	protect the person or property of the ward. If the court finds
119	no probable cause, the court shall issue an order finding no
120	probable cause and discharging the monitor.
121	(4)  If the court finds probable cause, the court shall
122	issue an order to show cause directed to the guardian or other
123	respondent stating the essential facts constituting the conduct
124	charged and requiring the respondent to appear before the court
125	to show cause why the court should not take further action. The
126	order shall specify the time and place of the hearing with a
127	reasonable time to allow for the preparation of a defense after
128	service of the order.
129	(5)  The authority of a monitor appointed under this
130	section expires 60 days after the date of appointment or upon a
131	finding of no probable cause, whichever occurs first. The
132	authority of the monitor may be extended for an additional 30
133	days upon a showing that the emergency conditions still exist.
134	(6)  At any time prior to the hearing on the order to show
135	cause, the court may issue a temporary injunction, a restraining
136	order, or an order freezing assets, may suspend a guardian or
137	appoint a guardian ad litem, or may issue any other appropriate
138	order to protect the physical or mental health or safety or
139	property of the ward. A copy of all such orders or injunctions
140	shall be transmitted by the court or under its direction to all
141	parties at the time of entry of the order or injunction.
142	(7)  Following a hearing on the order to show cause, the
143	court may impose sanctions on the guardian or his or her
144	attorney or other respondent or take any other action authorized
145	by law, including entering a judgment of contempt, ordering an
146	accounting, freezing assets, referring the case to local law
147	enforcement agencies or the state attorney, filing an abuse,
148	neglect, or exploitation complaint with the Department of
149	Children and Family Services, or initiating proceedings to
150	remove a guardian.
151	(8)  Unless otherwise prohibited by law, a monitor may be
152	allowed a reasonable fee as determined by the court and paid
153	from the property of the ward. No full-time state, county, or
154	municipal employee or officer shall be paid a fee for such
155	investigation and report. If the court finds the motion for a
156	court monitor to have been filed in bad faith, the costs of the
157	proceeding, including attorney's fees, may be assessed against
158	the movant.
159	Section 4.  Paragraphs (b) and (f) of subsection (6) of
160	section 744.331, Florida Statutes, are amended to read:
161	744.331  Procedures to determine incapacity.--
162	(6)  ORDER DETERMINING INCAPACITY.--If, after making
163	findings of fact on the basis of clear and convincing evidence,
164	the court finds that a person is incapacitated with respect to
165	the exercise of a particular right, or all rights, the court
166	shall enter a written order determining such incapacity. A
167	person is determined to be incapacitated only with respect to
168	those rights specified in the order.
169	(b)  When an order is entered which determines that a
170	person is incapable of exercising delegable rights, the court
171	must consider and find whether there is an alternative to
172	guardianship that will sufficiently address the problems of the
173	incapacitated person. A guardian must be appointed to exercise
174	the incapacitated person's delegable rights unless the court
175	finds that there is an alternative. A guardian shall not be
176	appointed if the court finds that there is an alternative to
177	guardianship that will sufficiently address the problems of the
178	incapacitated person In any order declaring a person
179	incapacitated the court must find that alternatives to
180	guardianship were considered and that no alternative to
181	guardianship will sufficiently address the problems of the ward.
182	(f)  Upon the filing of a verified statement by an
183	interested person stating:
184	1.  That he or she has a good faith belief that the alleged
185	incapacitated person's trust, trust amendment, or durable power
186	of attorney is invalid; and
187	2.  A reasonable factual basis for that belief,
188
189	the trust, trust amendment, or durable power of attorney shall
190	not be deemed to be an alternative to the appointment of a
191	guardian. The appointment of a guardian shall not limit the
192	court's authority to determine that certain authority granted by
193	a durable power of attorney is to remain exercisable by the
194	attorney in fact When an order is entered which determines that
195	a person is incapable of exercising delegable rights, a guardian
196	must be appointed to exercise those rights.
197	Section 5.  Subsection (11) of section 744.441, Florida
198	Statutes, is amended to read:
199	744.441  Powers of guardian upon court approval.--After
200	obtaining approval of the court pursuant to a petition for
201	authorization to act, a plenary guardian of the property, or a
202	limited guardian of the property within the powers granted by
203	the order appointing the guardian or an approved annual or
204	amended guardianship report, may:
205	(11)  Prosecute or defend claims or proceedings in any
206	jurisdiction for the protection of the estate and of the
207	guardian in the performance of his or her duties. Before
208	authorizing a guardian to bring an action described in s.
209	737.2065, the court shall first find that the action appears to
210	be in the ward's best interests during the ward's probable
211	lifetime. If the court denies a request that a guardian be
212	authorized to bring an action described in s. 737.2065, the
213	court shall review the continued need for a guardian and the
214	extent of the need for delegation of the ward's rights.
215	Section 6.  Section 744.462, Florida Statutes, is created
216	to read:
217	744.462  Determination regarding alternatives to
218	guardianship.--Any judicial determination concerning the
219	validity of the ward's trust, trust amendment, or durable power
220	of attorney shall be promptly reported in the guardianship
221	proceeding by the guardian of the property. If the instrument
222	has been judicially determined to be valid, or if after the
223	appointment of a guardian a petition is filed alleging that
224	there is an alternative to guardianship that will sufficiently
225	address the problems of the ward, the court shall review the
226	continued need for a guardian and the extent of the need for
227	delegation of the ward's rights.
228	Section 7.  This act shall take effect upon becoming a law.

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