Florida Senate - 2006 SENATOR AMENDMENT
Bill No. CS for CS for SB 472, 1st Eng.
Barcode 403390
CHAMBER ACTION
Senate House
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05/04/2006 01:05 PM .
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11 Senator Saunders moved the following amendment:
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13 Senate Amendment (with title amendment)
14 On page 23, line 30, through
15 page 28, line 20, delete those lines
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17 and insert:
18 Section 11. Subsections (2), (3), (4), (5), and (7) of
19 section 744.331, Florida Statutes, are amended to read:
20 744.331 Procedures to determine incapacity.--
21 (2) ATTORNEY FOR THE ALLEGED INCAPACITATED PERSON.--
22 (a) When a court appoints an attorney for an alleged
23 incapacitated person, the court must appoint an attorney who
24 is included in the attorney registry compiled pursuant to ss.
25 27.40 and 27.42 by the circuit's Article V indigent services
26 committee. Appointments must be made on a rotating basis,
27 taking into consideration conflicts arising under this
28 chapter.
29 (b)(a) The court shall appoint an attorney for each
30 person alleged to be incapacitated in all cases involving a
31 petition for adjudication of incapacity. The alleged
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Florida Senate - 2006 SENATOR AMENDMENT
Bill No. CS for CS for SB 472, 1st Eng.
Barcode 403390
1 incapacitated person may substitute her or his own attorney
2 for the attorney appointed by the court.
3 (c)(b) Any attorney representing an alleged
4 incapacitated person may not serve as guardian of the alleged
5 incapacitated person or as counsel for the guardian of the
6 alleged incapacitated person or the petitioner.
7 (d) Effective January 1, 2007, an attorney seeking to
8 be appointed by a court for incapacity and guardianship
9 proceedings must have completed a minimum of 8 hours of
10 education in guardianship. A court may waive the initial
11 training requirement for an attorney who has served as a
12 court-appointed attorney in incapacity proceedings or as an
13 attorney of record for guardians for not less than 3 years.
14 (3) EXAMINING COMMITTEE.--
15 (a) Within 5 days after a petition for determination
16 of incapacity has been filed, the court shall appoint an
17 examining committee consisting of three members. One member
18 must be a psychiatrist or other physician. The remaining
19 members must be either a psychologist, gerontologist, another
20 psychiatrist, or other physician, a registered nurse, nurse
21 practitioner, licensed social worker, a person with an
22 advanced degree in gerontology from an accredited institution
23 of higher education, or other person who by knowledge, skill,
24 experience, training, or education may, in the court's
25 discretion, advise the court in the form of an expert opinion.
26 One of three members of the committee must have knowledge of
27 the type of incapacity alleged in the petition. Unless good
28 cause is shown, the attending or family physician may not be
29 appointed to the committee. If the attending or family
30 physician is available for consultation, the committee must
31 consult with the physician. Members of the examining
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Florida Senate - 2006 SENATOR AMENDMENT
Bill No. CS for CS for SB 472, 1st Eng.
Barcode 403390
1 committee may not be related to or associated with one
2 another, or with the petitioner, with counsel for the
3 petitioner or the proposed guardian, or with the person
4 alleged to be totally or partially incapacitated. A member may
5 not be employed by any private or governmental agency that has
6 custody of, or furnishes, services or subsidies, directly or
7 indirectly, to the person or the family of the person alleged
8 to be incapacitated or for whom a guardianship is sought. A
9 petitioner may not serve as a member of the examining
10 committee. Members of the examining committee must be able to
11 communicate, either directly or through an interpreter, in the
12 language that the alleged incapacitated person speaks or to
13 communicate in a medium understandable to the alleged
14 incapacitated person if she or he is able to communicate. The
15 clerk of the court shall send notice of the appointment to
16 each person appointed no later than 3 days after the court's
17 appointment.
18 (b) A person who has been appointed to serve as a
19 member of an examining committee to examine an alleged
20 incapacitated person may not thereafter be appointed as a
21 guardian for the person who was the subject of the
22 examination.
23 (c) Each person appointed to an examining committee
24 must file an affidavit with the court stating that he or she
25 has completed the required courses or will do so no later than
26 4 months after his or her initial appointment. Each year, the
27 chief judge of the circuit must prepare a list of persons
28 qualified to be members of the examining committee.
29 (d) A member of an examining committee must complete a
30 minimum of 4 hours of initial training. The person must
31 complete 2 hours of continuing education during each 2-year
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Florida Senate - 2006 SENATOR AMENDMENT
Bill No. CS for CS for SB 472, 1st Eng.
Barcode 403390
1 period after the initial training. The initial training and
2 continuing education program must be developed under the
3 supervision of the Statewide Public Guardianship Office, in
4 consultation with the Florida Conference of Circuit Court
5 Judges, the Elder Law and Real Property, Probate and Trust Law
6 sections of The Florida Bar, the Florida State Guardianship
7 Association, and the Florida Guardianship Foundation. The
8 court may waive the initial training requirement for a person
9 who has served for not less than 5 years on examining
10 committees. If a person wishes to obtain his or her continuing
11 education on the Internet or by watching a video course, the
12 person must first obtain the approval of the chief judge
13 before taking an Internet or video course.
14 (e)(b) Each member of the examining committee shall
15 examine the person. Each The examining committee member must
16 shall determine the alleged incapacitated person's ability to
17 exercise those rights specified in s. 744.3215. In addition to
18 the examination, each the examining committee member must
19 shall have access to, and may consider, previous examinations
20 of the person, including, but not limited to, habilitation
21 plans, school records, and psychological and psychosocial
22 reports voluntarily offered for use by the alleged
23 incapacitated person. Each member of the examining committee
24 must shall submit a report within 15 days after appointment.
25 (f)(c) The examination of the alleged incapacitated
26 person must include a comprehensive examination, a report of
27 which shall be filed by each the examining committee member as
28 part of his or her its written report. The comprehensive
29 examination report should be an essential element, but not
30 necessarily the only element, used in making a capacity and
31 guardianship decision. The comprehensive examination must
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Florida Senate - 2006 SENATOR AMENDMENT
Bill No. CS for CS for SB 472, 1st Eng.
Barcode 403390
1 include, if indicated:
2 1. A physical examination;
3 2. A mental health examination; and
4 3. A functional assessment.
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6 If any of these three aspects of the examination is not
7 indicated or cannot be accomplished for any reason, the
8 written report must explain the reasons for its omission.
9 (g)(d) Each committee member's The committee's written
10 report must include:
11 1. To the extent possible, a diagnosis, prognosis, and
12 recommended course of treatment.
13 2. An evaluation of the alleged incapacitated person's
14 ability to retain her or his rights, including, without
15 limitation, the rights to marry; vote; contract; manage or
16 dispose of property; have a driver's license; determine her or
17 his residence; consent to medical treatment; and make
18 decisions affecting her or his social environment.
19 3. The results of the comprehensive examination and
20 the committee member's members' assessment of information
21 provided by the attending or family physician, if any.
22 4. A description of any matters with respect to which
23 the person lacks the capacity to exercise rights, the extent
24 of that incapacity, and the factual basis for the
25 determination that the person lacks that capacity.
26 5. The names of all persons present during the time
27 the committee member conducted his or her examination. If a
28 person other than the person who is the subject of the
29 examination supplies answers posed to the alleged
30 incapacitated person, the report must include the response and
31 the name of the person supplying the answer.
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Florida Senate - 2006 SENATOR AMENDMENT
Bill No. CS for CS for SB 472, 1st Eng.
Barcode 403390
1 6.5. The signature of each member of the committee
2 member and the date and time the member conducted his or her
3 examination.
4 (h)(e) A copy of each committee member's the report
5 must be served on the petitioner and on the attorney for the
6 alleged incapacitated person within 3 days after the report is
7 filed and at least 5 days before the hearing on the petition.
8 (4) DISMISSAL OF PETITION.--If a majority of the
9 examining committee members conclude concludes that the
10 alleged incapacitated person is not incapacitated in any
11 respect, the court shall dismiss the petition.
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14 ================ T I T L E A M E N D M E N T ===============
15 And the title is amended as follows:
16 On page 3, line 26, after the semicolon
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18 insert:
19 providing for dismissal of a petition alleging
20 incapacity based on the reports of the majority
21 of the committee members;
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