Senate Bill sb0472

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    Florida Senate - 2006                                   SB 472

    By Senator Saunders





    37-2A-06

  1                      A bill to be entitled

  2         An act relating to guardianship; amending s.

  3         744.102, F.S.; defining the terms "audit" and

  4         "surrogate guardian"; amending s. 744.1083,

  5         F.S.; authorizing revocation or suspension of a

  6         guardian's registration; providing that the

  7         Statewide Public Guardianship Office need not

  8         review credit and criminal investigations from

  9         a college or university before registering the

10         institution as a professional guardian;

11         amending s. 744.301, F.S.; providing that in

12         the event of death, the surviving parent is the

13         sole natural guardian of a minor; prohibiting a

14         natural guardian from using the property of the

15         ward for the guardian's benefit without a court

16         order; creating s. 744.3025, F.S.; authorizing

17         a court to appoint a guardian ad litem to

18         represent a minor's interest in certain claims

19         that exceed a specified amount; requiring a

20         court to appoint a guardian ad litem to

21         represent a minor's interest in certain claims

22         that exceed a specified amount; providing that

23         a court need not appoint a guardian ad litem

24         under certain circumstances; requiring a court

25         to award reasonable fees and costs to the

26         guardian ad litem; amending s. 744.3031, F.S.;

27         increasing the time an emergency temporary

28         guardian may serve to 90 days; authorizing an

29         extension; requiring an emergency temporary

30         guardian to file a final report; providing for

31         the contents of the final report; amending s.

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 1         744.304, F.S.; specifying the persons who may

 2         file a petition for a standby guardian;

 3         requiring that notice of the appointment

 4         hearing be served on the ward's next of kin;

 5         clarifying when a standby guardian may assume

 6         the duties of guardian; requiring that each

 7         standby guardian submit to credit and criminal

 8         background checks; amending s. 744.3115, F.S.;

 9         providing a cross-reference; amending s.

10         744.3145, F.S.; reducing the time in which a

11         guardian must complete the education courses

12         from 1 year to 4 months; amending s. 744.3215,

13         F.S.; providing that an incapacitated person

14         retains the right to receive necessary services

15         and rehabilitation necessary to maximize the

16         quality of the person's life; amending s.

17         744.331, F.S.; requiring that the court appoint

18         an attorney from a specified registry;

19         requiring attorneys to complete certain

20         training programs; providing that a member of

21         the examining committee may not be related to

22         or associated with certain persons; prohibiting

23         a person who served on an examining committee

24         from being appointed as the guardian; requiring

25         each member of an examining committee to file

26         an affidavit stating that he or she has

27         completed the mandatory training; providing for

28         training programs; requiring each member to

29         report the time and date that he or she

30         examined the person alleged to be

31         incapacitated; providing for an award of

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 1         attorney's fees; amending s. 744.341, F.S.;

 2         requiring the voluntary guardian to include

 3         certain information in the annual report;

 4         requiring that certain specified information be

 5         included in the notice to terminate a voluntary

 6         guardianship; amending s. 744.361, F.S.;

 7         requiring a professional guardian to ensure

 8         that each of his or her wards is personally

 9         visited at least quarterly; providing for the

10         assessment of certain conditions during the

11         personal visit; amending s. 744.365, F.S.;

12         requiring that the verified inventory include

13         information on any trust to which a ward is a

14         beneficiary; amending s. 744.367, F.S.;

15         requiring that the annual report of the

16         guardian be filed on or before April 1 of each

17         year; amending s. 744.3675, F.S.; requiring

18         that the annual guardianship plan include

19         information on the mental condition of the

20         ward; providing for an annual guardianship plan

21         for wards who are minors; amending s. 744.3678,

22         F.S.; providing that property of or a trust

23         benefiting the ward which is not under the

24         control of the guardian is not subject to

25         annual accounting; requiring certain

26         documentation for the annual accounting;

27         amending s. 744.3679, F.S.; removing a

28         provision prohibiting the clerk of court from

29         having responsibility for monitoring or

30         auditing accounts in certain cases; amending s.

31         744.368, F.S.; requiring that the verified

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 1         inventory and the accountings be audited within

 2         a specified time period; amending s. 744.441,

 3         F.S.; requiring the court to retain oversight

 4         for assets of a ward transferred to a trust;

 5         creating s. 744.442, F.S.; providing that a

 6         guardian may designate a surrogate guardian to

 7         exercise the powers of the guardian if the

 8         guardian is unavailable to act; requiring the

 9         surrogate guardian to be a professional

10         guardian; providing the procedures to be used

11         in appointing a surrogate guardian; providing

12         the duties of a surrogate guardian; requiring

13         the guardian to be liable for the acts of the

14         surrogate guardian; authorizing the guardian to

15         terminate the services of the surrogate

16         guardian by filing a written notice of the

17         termination with the court; amending s.

18         744.464, F.S.; removing the state attorney from

19         the list of persons to be served a notice of a

20         hearing on restoration of capacity; removing a

21         time limitation on the filing of a suggestion

22         of capacity; amending s. 744.474, F.S.;

23         revising the circumstances under which a

24         guardian may be removed; providing a rebuttable

25         presumption that certain relatives act in the

26         best interests of the ward; amending s.

27         744.511, F.S.; providing that a ward who is a

28         minor need not be served with the final report

29         of a removed guardian; amending s. 744.527,

30         F.S.; providing that final reports for a

31         deceased ward be filed at a specified time;

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 1         amending s. 744.528, F.S.; providing for a

 2         notice of the hearing for objections to a

 3         report filed by a guardian; amending s.

 4         744.708, F.S.; requiring a public guardian to

 5         ensure that each of his or her wards is

 6         personally visited at least quarterly;

 7         providing for the assessment of certain

 8         conditions during the personal visit; amending

 9         s. 765.101, F.S.; redefining the term "health

10         care decision" to include informed consent for

11         mental health treatment services; amending ss.

12         121.091, 121.4501, 709.08, and 744.1085, F.S.;

13         conforming cross-references; reenacting s.

14         117.107(4), F.S., relating to prohibited acts

15         of a notary public, to incorporate the

16         amendment made to s. 744.3215, F.S., in a

17         reference thereto; providing an effective date.

18  

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

20  

21         Section 1.  Section 744.102, Florida Statutes, is

22  amended to read:

23         744.102  Definitions.--As used in this chapter, the

24  term:

25         (1)  "Attorney for the alleged incapacitated person"

26  means an attorney who represents the alleged incapacitated

27  person. The Such attorney shall represent the expressed wishes

28  of the alleged incapacitated person to the extent it is

29  consistent with the rules regulating The Florida Bar.

30  

31  

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 1         (2)  "Audit" means a systematic review of financial

 2  documents with adherence to generally accepted auditing

 3  standards.

 4         (3)(2)  "Clerk" means the clerk or deputy clerk of the

 5  court.

 6         (4)(3)  "Corporate guardian" means a corporation

 7  authorized to exercise fiduciary or guardianship powers in

 8  this state and includes a nonprofit corporate guardian.

 9         (5)(4)  "Court" means the circuit court.

10         (6)(5)  "Court monitor" means a person appointed by the

11  court under pursuant to s. 744.107 to provide the court with

12  information concerning a ward.

13         (7)(6)  "Estate" means the property of a ward subject

14  to administration.

15         (8)(7)  "Foreign guardian" means a guardian appointed

16  in another state or country.

17         (9)(8)  "Guardian" means a person who has been

18  appointed by the court to act on behalf of a ward's person or

19  property, or both.

20         (a)  "Limited guardian" means a guardian who has been

21  appointed by the court to exercise the legal rights and powers

22  specifically designated by court order entered after the court

23  has found that the ward lacks the capacity to do some, but not

24  all, of the tasks necessary to care for his or her person or

25  property, or after the person has voluntarily petitioned for

26  appointment of a limited guardian.

27         (b)  "Plenary guardian" means a person who has been

28  appointed by the court to exercise all delegable legal rights

29  and powers of the ward after the court has found that the ward

30  lacks the capacity to perform all of the tasks necessary to

31  care for his or her person or property.

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 1         (10)(9)  "Guardian ad litem" means a person who is

 2  appointed by the court having jurisdiction of the guardianship

 3  or a court in which a particular legal matter is pending to

 4  represent a ward in that proceeding.

 5         (11)(10)  "Guardian advocate" means a person appointed

 6  by a written order of the court to represent a person with

 7  developmental disabilities under s. 393.12. As used in this

 8  chapter, the term does not apply to a guardian advocate

 9  appointed for a person determined incompetent to consent to

10  treatment under s. 394.4598.

11         (12)(11)  "Incapacitated person" means a person who has

12  been judicially determined to lack the capacity to manage at

13  least some of the property or to meet at least some of the

14  essential health and safety requirements of the such person.

15         (a)  To "manage property" means to take those actions

16  necessary to obtain, administer, and dispose of real and

17  personal property, intangible property, business property,

18  benefits, and income.

19         (b)  To "meet essential requirements for health or

20  safety" means to take those actions necessary to provide the

21  health care, food, shelter, clothing, personal hygiene, or

22  other care without which serious and imminent physical injury

23  or illness is more likely than not to occur.

24         (13)(12)  "Minor" means a person under 18 years of age

25  whose disabilities have not been removed by marriage or

26  otherwise.

27         (14)(13)  "Next of kin" means those persons who would

28  be heirs at law of the ward or alleged incapacitated person if

29  the such person were deceased and includes the lineal

30  descendants of the such ward or alleged incapacitated person.

31  

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 1         (15)(14)  "Nonprofit corporate guardian" means a

 2  nonprofit corporation organized for religious or charitable

 3  purposes and existing under the laws of this state.

 4         (16)(15)  "Preneed guardian" means a person named in a

 5  written declaration to serve as guardian in the event of the

 6  incapacity of the declarant as provided in s. 744.3045.

 7         (17)(16)  "Professional guardian" means any guardian

 8  who receives or has at any time received compensation for

 9  services rendered services to three or more than two wards as

10  their guardian. A person serving as a guardian for two or more

11  relatives as defined in s. 744.309(2) is not considered a

12  professional guardian. A public guardian shall be considered a

13  professional guardian for purposes of regulation, education,

14  and registration.

15         (18)(17)  "Property" means both real and personal

16  property or any interest in it and anything that may be the

17  subject of ownership.

18         (19)(18)  "Standby guardian" means a person empowered

19  to assume the duties of guardianship upon the death or

20  adjudication of incapacity of the last surviving natural or

21  appointed guardian.

22         (20)  "Surrogate guardian" means a guardian designated

23  according to s. 744.442.

24         (21)(19)  "Totally incapacitated" means incapable of

25  exercising any of the rights enumerated in s. 744.3215(2) and

26  (3).

27         (22)(20)  "Ward" means a person for whom a guardian has

28  been appointed.

29         Section 2.  Subsections (5) and (10) of section

30  744.1083, Florida Statutes, are amended to read:

31         744.1083  Professional guardian registration.--

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 1         (5)  The executive director of the office may deny

 2  registration to a professional guardian if the executive

 3  director determines that the guardian's proposed registration,

 4  including the guardian's credit or criminal investigations,

 5  indicates that registering the professional guardian would

 6  violate any provision of this chapter. If a guardian who is

 7  currently registered with the office violates a provision of

 8  this chapter, the executive director of the office may suspend

 9  or revoke the guardian's registration. If the executive

10  director denies registration to a professional guardian or

11  suspends or revokes a professional guardian's registration,

12  the Statewide Public Guardianship Office must send written

13  notification of the denial, suspension, or revocation to the

14  chief judge of each judicial circuit in which the guardian was

15  serving on the day of the office's decision to deny, suspend,

16  or revoke the registration.

17         (10)  A state college or university or an independent

18  college or university described in s. 1009.98(3)(a), may, but

19  is not required to, register as a professional guardian under

20  this section. If a state college or university or independent

21  college or university elects to register as a professional

22  guardian under this subsection, the requirements of

23  subsections (3) and (4) subsection (3) do not apply and the

24  registration must include only the name, address, and employer

25  identification number of the registrant.

26         Section 3.  Section 744.301, Florida Statutes, is

27  amended to read:

28         744.301  Natural guardians.--

29         (1)  The mother and father jointly are natural

30  guardians of their own children and of their adopted children,

31  during minority.  If one parent dies, the surviving parent

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 1  remains the sole natural guardian even if he or she the

 2  natural guardianship shall pass to the surviving parent, and

 3  the right shall continue even though the surviving parent

 4  remarries.  If the marriage between the parents is dissolved,

 5  the natural guardianship belongs shall belong to the parent to

 6  whom the custody of the child is awarded. If the parents are

 7  given joint custody, then both shall continue as natural

 8  guardians.  If the marriage is dissolved and neither the

 9  father nor the mother is given custody of the child, neither

10  shall act as natural guardian of the child.  The mother of a

11  child born out of wedlock is the natural guardian of the child

12  and is entitled to primary residential care and custody of the

13  child unless a court of competent jurisdiction enters an order

14  stating otherwise.

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

16  on behalf of any of their minor children, to:

17         (a)  Settle and consummate a settlement of any claim or

18  cause of action accruing to any of their minor children for

19  damages to the person or property of any of said minor

20  children;

21         (b)  Collect, receive, manage, and dispose of the

22  proceeds of any such settlement;

23         (c)  Collect, receive, manage, and dispose of any real

24  or personal property distributed from an estate or trust;

25         (d)  Collect, receive, manage, and dispose of and make

26  elections regarding the proceeds from a life insurance policy

27  or annuity contract payable to, or otherwise accruing to the

28  benefit of, the child; and

29         (e)  Collect, receive, manage, dispose of, and make

30  elections regarding the proceeds of any benefit plan as

31  

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 1  defined by s. 710.102, of which the minor is a beneficiary,

 2  participant, or owner,

 3  

 4  without appointment, authority, or bond, when the amounts

 5  received, in the aggregate, do amount involved in any instance

 6  does not exceed $15,000.

 7         (3)  All instruments executed by a natural guardian for

 8  the benefit of the ward under the powers specified provided

 9  for in subsection (2) shall be binding on the ward. The

10  natural guardian may not, without a court order, use the

11  property of the ward for the guardian's benefit or to satisfy

12  the guardian's support obligation to the ward.

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 exceeds

16  $15,000, the court may, prior to the approval of the

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

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

19  gross settlement involving a minor equals or exceeds $25,000,

20  the court shall, prior to the approval of the settlement of

21  the minor's claim, appoint a guardian ad litem to represent

22  the minor's interests. The appointment of the guardian ad

23  litem must be without the necessity of bond or a notice. The

24  duty of the guardian ad litem is to protect the minor's

25  interests. The procedure for carrying out that duty is as

26  prescribed in the Florida Probate Rules.  If a legal guardian

27  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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 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 4.  Section 744.3025, Florida Statutes, is

 5  created to read:

 6         744.3025  Claims of minors.--

 7         (1)(a)  The court may appoint a guardian ad litem to

 8  represent the minor's interest, before approving a settlement

 9  of the minor's portion of the claim, in any case in which a

10  minor has a claim for personal injury, property damage,

11  wrongful death, or other cause of action in which the gross

12  settlement of the claim exceeds $15,000.

13         (b)  The court shall appoint a guardian ad litem to

14  represent the minor's interest before approving a settlement

15  of the minor's claim, in any case in which the gross

16  settlement involving a minor equals or exceeds $50,000.

17         (c)  The appointment of the guardian ad litem must be

18  without the necessity of bond or notice.

19         (d)  The duty of the guardian ad litem is to protect

20  the minor's interests as described in the Florida Probate

21  Rules.

22         (e)  A court need not appoint a guardian ad litem for

23  the child if a guardian of the minor has previously been

24  appointed and that guardian has no potential adverse interest

25  to the minor. A court may appoint a guardian ad litem if the

26  court believes a guardian ad litem is necessary to protect the

27  interests of the minor.

28         (2)  Unless waived, the court shall award reasonable

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

30  gross proceeds of the settlement.

31  

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 1         Section 5.  Subsection (3) of section 744.3031, Florida

 2  Statutes, is amended, and subsection (8) is added to that

 3  section, to read:

 4         744.3031  Emergency temporary guardianship.--

 5         (3)  The authority of an emergency temporary guardian

 6  expires 90 60 days after the date of appointment or when a

 7  guardian is appointed, whichever occurs first.  The authority

 8  of the emergency temporary guardian may be extended for an

 9  additional 90 30 days upon a showing that the emergency

10  conditions still exist.

11         (8)(a)  An emergency temporary guardian shall file a

12  final report no later than 30 days after the expiration of the

13  emergency temporary guardianship.

14         (b)  An emergency temporary guardianship is a guardian

15  for the property. The final report must consist of a verified

16  inventory of the property, as provided in s. 744.365, as of

17  the date the letters of emergency temporary guardianship were

18  issued, a final accounting that gives a full and correct

19  account of the receipts and disbursements of all the property

20  of the ward over which the guardian had control, and a

21  statement of the property of the ward on hand at the end of

22  the emergency temporary guardianship. If the emergency

23  temporary guardian becomes the successor guardian of the

24  property, the final report must satisfy the requirements of

25  the initial guardianship report for the guardian of the

26  property as provided in s. 744.362.

27         (c)  If the emergency temporary guardian is a guardian

28  of the person, the final report must summarize the activities

29  of the temporary guardian with regard to residential

30  placement, medical condition, mental health and rehabilitative

31  services, and the social condition of the ward to the extent

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 1  of the authority granted to the temporary guardian in the

 2  letters of guardianship. If the emergency temporary guardian

 3  becomes the successor guardian of the person, the report must

 4  satisfy the requirements of the initial report for a guardian

 5  of the person as stated in s. 744.362.

 6         (d)  A copy of the final report of the emergency

 7  temporary guardianship shall be served on the successor

 8  guardian and the ward.

 9         Section 6.  Section 744.304, Florida Statutes, is

10  amended to read:

11         744.304  Standby guardianship.--

12         (1)  Upon a petition by the natural guardians or a

13  guardian appointed under s. 744.3021, the court may appoint a

14  standby guardian of the person or property of a minor or

15  consent of both parents, natural or adoptive, if living, or of

16  the surviving parent, a standby guardian of the person or

17  property of a minor may be appointed by the court. The court

18  may also appoint an alternate to the guardian to act if the

19  standby guardian does not serve or ceases to serve after

20  appointment. Notice of a hearing on the petition must be

21  served on the parents, natural or adoptive, and on any

22  guardian currently serving unless the notice is waived in

23  writing by them or waived by the court for good cause shown

24  shall renounce, die, or become incapacitated after the death

25  of the last surviving parent of the minor.

26         (2)  Upon petition of a currently serving guardian, a

27  standby guardian of the person or property of an incapacitated

28  person may be appointed by the court. Notice of the hearing

29  shall be served on the ward's next of kin.

30         (3)  The standby guardian or alternate shall be

31  empowered to assume the duties of guardianship his or her

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 1  office immediately on the death, removal, or resignation of

 2  the guardian of a minor, or on the death or adjudication of

 3  incapacity of the last surviving natural guardian or adoptive

 4  parent of a minor, or upon the death, removal, or resignation

 5  of the guardian for an adult. The; however, such a guardian of

 6  the ward's property may not be empowered to deal with the

 7  ward's property, other than to safeguard it, before prior to

 8  issuance of letters of guardianship.  If the ward

 9  incapacitated person is over the age of 18 years, the court

10  shall conduct a hearing as provided in s. 744.331 before

11  confirming the appointment of the standby guardian, unless the

12  ward has previously been found to be incapacitated.

13         (4)  Within 20 days after assumption of duties as

14  guardian, a standby guardian shall petition for confirmation

15  of appointment.  If the court finds the standby guardian to be

16  qualified to serve as guardian under pursuant to ss. 744.309

17  and 744.312, appointment of the guardian must be confirmed.

18  Each guardian so confirmed shall file an oath in accordance

19  with s. 744.347, and shall file a bond, and shall submit to a

20  credit and criminal investigation as set forth in s. 744.3135,

21  if required. Letters of guardianship must then be issued in

22  the manner provided in s. 744.345.

23         (5)  After the assumption of duties by a standby

24  guardian, the court shall have jurisdiction over the guardian

25  and the ward.

26         Section 7.  Section 744.3115, Florida Statutes, is

27  amended to read:

28         744.3115  Advance directives for health care.--In each

29  proceeding in which a guardian is appointed under this

30  chapter, the court shall determine whether the ward, prior to

31  incapacity, has executed any valid advance directive under

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 1  pursuant to chapter 765. If any such advance directive exists,

 2  the court shall specify in its order and letters of

 3  guardianship what authority, if any, the guardian shall

 4  exercise over the surrogate. Pursuant to the grounds listed in

 5  s. 765.105, the court, upon its own motion, may, with notice

 6  to the surrogate and any other appropriate parties, modify or

 7  revoke the authority of the surrogate to make health care

 8  decisions for the ward. For purposes of this section, the term

 9  "health care decision" has the same meaning as in s. 765.101.

10         Section 8.  Subsection (4) of section 744.3145, Florida

11  Statutes, is amended to read:

12         744.3145  Guardian education requirements.--

13         (4)  Each person appointed by the court to be a

14  guardian must complete the required number of hours of

15  instruction and education within 4 months 1 year after his or

16  her appointment as guardian. The instruction and education

17  must be completed through a course approved by the chief judge

18  of the circuit court and taught by a court-approved

19  organization. Court-approved organizations may include, but

20  are not limited to, community or junior colleges, guardianship

21  organizations, and the local bar association or The Florida

22  Bar.

23         Section 9.  Paragraph (i) of subsection (1) and

24  subsection (2) of section 744.3215, Florida Statutes, are

25  amended to read:

26         744.3215  Rights of persons determined incapacitated.--

27         (1)  A person who has been determined to be

28  incapacitated retains the right:

29         (i)  To receive necessary services and rehabilitation

30  necessary to maximize the quality of life.

31  

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 1         (2)  Rights that may be removed from a person by an

 2  order determining incapacity but not delegated to a guardian

 3  include the right:

 4         (a)  To marry. If the right to enter into a contract

 5  has been removed, the right to marry is subject to court

 6  approval.

 7         (b)  To vote.

 8         (c)  To personally apply for government benefits.

 9         (d)  To have a driver's license.

10         (e)  To travel.

11         (f)  To seek or retain employment.

12         Section 10.  Subsections (2), (3), and (7) of section

13  744.331, Florida Statutes, are amended to read:

14         744.331  Procedures to determine incapacity.--

15         (2)  ATTORNEY FOR THE ALLEGED INCAPACITATED PERSON.--

16         (a)  When a court appoints an attorney for an alleged

17  incapacitated person, the court must appoint an attorney who

18  is included in the attorney registry compiled by the circuit's

19  Article V indigent services committee. Appointments must be

20  made on a rotating basis, taking into consideration conflicts

21  arising under this chapter.

22         (b)(a)  The court shall appoint an attorney for each

23  person alleged to be incapacitated in all cases involving a

24  petition for adjudication of incapacity.  The alleged

25  incapacitated person may substitute her or his own attorney

26  for the attorney appointed by the court, subject to court

27  approval.

28         (c)(b)  Any attorney representing an alleged

29  incapacitated person may not serve as guardian of the alleged

30  incapacitated person or as counsel for the guardian of the

31  alleged incapacitated person or the petitioner.

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 1         (d)  Effective January 1, 2007, an attorney seeking to

 2  be appointed by a court for incapacity and guardianship

 3  proceedings must have completed a minimum of 8 hours of

 4  education in guardianship. A court may waive the initial

 5  training requirement for an attorney who has served as a

 6  court-appointed attorney in incapacity proceedings or as an

 7  attorney of record for guardians for not less than 3 years.

 8         (3)  EXAMINING COMMITTEE.--

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

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

11  examining committee consisting of three members. One member

12  must be a psychiatrist or other physician.  The remaining

13  members must be either a psychologist, gerontologist, another

14  psychiatrist, or other physician, a registered nurse, nurse

15  practitioner, licensed social worker, a person with an

16  advanced degree in gerontology from an accredited institution

17  of higher education, or other person who by knowledge, skill,

18  experience, training, or education may, in the court's

19  discretion, advise the court in the form of an expert opinion,

20  including a professional guardian. One of three members of the

21  committee must have knowledge of the type of incapacity

22  alleged in the petition. Unless good cause is shown, the

23  attending or family physician may not be appointed to the

24  committee.  If the attending or family physician is available

25  for consultation, the committee must consult with the

26  physician.  Members of the examining committee may not be

27  related to or associated with one another, or with the

28  petitioner, with counsel for the petitioner or the proposed

29  guardian, or the person alleged to be totally or partially

30  incapacitated.  A member may not be employed by any private or

31  governmental agency that has custody of, or furnishes,

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 1  services or subsidies, directly or indirectly, to the person

 2  or the family of the person alleged to be incapacitated or for

 3  whom a guardianship is sought.  A petitioner may not serve as

 4  a member of the examining committee. Members of the examining

 5  committee must be able to communicate, either directly or

 6  through an interpreter, in the language that the alleged

 7  incapacitated person speaks or to communicate in a medium

 8  understandable to the alleged incapacitated person if she or

 9  he is able to communicate. The clerk of the court shall send

10  notice of the appointment to each person appointed no later

11  than 3 days after the court's appointment.

12         (b)  A person who has been appointed to serve as a

13  member of an examining committee to examine an alleged

14  incapacitated person may not thereafter be appointed as a

15  guardian for the person who was the subject of the

16  examination.

17         (c)  Each person appointed to an examining committee

18  must file an affidavit with the court stating that he or she

19  has completed the required courses or will do so no later than

20  4 months after his or her initial appointment. Each year, the

21  chief judge of the circuit must prepare a list of persons

22  qualified to be members of the examining committee.

23         (d)  A member of an examining committee must complete a

24  minimum of 4 hours of initial training. The person must

25  complete 2 hours of continuing education during each 2-year

26  period after the initial training. The initial training and

27  continuing education program must be developed under the

28  supervision of the Statewide Public Guardianship Office, in

29  consultation with the Florida Conference of Circuit Court

30  Judges, the Elder Law and Real Property, Probate and Trust Law

31  sections of The Florida Bar, the Florida State Guardianship

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 1  Association, and the Florida Guardianship Foundation. The

 2  court may waive the initial training requirement for a person

 3  who has served for not less than 5 years on examining

 4  committees. If a person wishes to obtain his or her continuing

 5  education on the Internet or by watching a video course, the

 6  person must first obtain the approval of the chief judge

 7  before taking an Internet or video course.

 8         (e)(b)  Each member of the examining committee shall

 9  examine the person. Each The examining committee member must

10  shall determine the alleged incapacitated person's ability to

11  exercise those rights specified in s. 744.3215. In addition to

12  the examination, each the examining committee member must

13  shall have access to, and may consider, previous examinations

14  of the person, including, but not limited to, habilitation

15  plans, school records, and psychological and psychosocial

16  reports voluntarily offered for use by the alleged

17  incapacitated person. Each member of the examining committee

18  must shall submit a report within 15 days after appointment.

19         (f)(c)  The examination of the alleged incapacitated

20  person must include a comprehensive examination, a report of

21  which shall be filed by the examining committee as part of its

22  written report. The comprehensive examination report should be

23  an essential element, but not necessarily the only element,

24  used in making a capacity and guardianship decision.  The

25  comprehensive examination must include, if indicated:

26         1.  A physical examination;

27         2.  A mental health examination; and

28         3.  A functional assessment.

29  

30  

31  

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 1  If any of these three aspects of the examination is not

 2  indicated or cannot be accomplished for any reason, the

 3  written report must explain the reasons for its omission.

 4         (g)(d)  The committee's written report must include:

 5         1.  To the extent possible, a diagnosis, prognosis, and

 6  recommended course of treatment.

 7         2.  An evaluation of the alleged incapacitated person's

 8  ability to retain her or his rights, including, without

 9  limitation, the rights to marry; vote; contract; manage or

10  dispose of property; have a driver's license; determine her or

11  his residence; consent to medical treatment; and make

12  decisions affecting her or his social environment.

13         3.  The results of the comprehensive examination and

14  the committee members' assessment of information provided by

15  the attending or family physician, if any.

16         4.  A description of any matters with respect to which

17  the person lacks the capacity to exercise rights, the extent

18  of that incapacity, and the factual basis for the

19  determination that the person lacks that capacity.

20         5.  The names of all persons present during the time

21  the committee member conducted his or her examination. If a

22  person other than the person who is the subject of the

23  examination supplies answers posed to the alleged

24  incapacitated person, the report must include the response and

25  the name of the person supplying the answer.

26         6.5.  The signature of each member of the committee and

27  the date and time each member conducted his or her

28  examination.

29         (h)(e)  A copy of the report must be served on the

30  petitioner and on the attorney for the alleged incapacitated

31  

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 1  person within 3 days after the report is filed and at least 5

 2  days before the hearing on the petition.

 3         (7)  FEES.--

 4         (a)  The examining committee and any attorney appointed

 5  under subsection (2) are entitled to reasonable fees to be

 6  determined by the court.

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

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

 9  is indigent, by the state. The state shall have a creditor's

10  claim against the guardianship property for any amounts paid

11  under this section. The state may file its claim within 90

12  days after the entry of an order awarding attorney ad litem

13  fees. If the state does not file its claim within the 90-day

14  period, the state is thereafter barred from asserting the

15  claim. Upon petition by the state for payment of the claim,

16  the court shall enter an order authorizing immediate payment

17  out of the property of the ward. The state shall keep a record

18  of the such payments.

19         (c)  If the petition is dismissed, costs and attorney's

20  fees of the proceeding may be assessed against the petitioner

21  if the court finds the petition to have been filed in bad

22  faith.

23         Section 11.  Present subsection (4) of section 744.341,

24  Florida Statutes, is redesignated as subsection (5) and

25  amended, and a new subsection (4) is added to that section, to

26  read:

27         744.341  Voluntary guardianship.--

28         (4)  A guardian must include in the annual report filed

29  with the court a certificate from a licensed physician who

30  examined the ward not more than 90 days before the annual

31  report is filed with the court. The certificate must certify

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 1  that the ward is competent to understand the nature of the

 2  guardianship and of the ward's authority to delegate powers to

 3  the voluntary guardian.

 4         (5)(4)  A voluntary guardianship may be terminated by

 5  the ward by filing a notice with the court that the voluntary

 6  guardianship is terminated. The notice must be accompanied by

 7  a certificate from a licensed physician who has examined the

 8  ward not more than 30 days before the ward filed the notice

 9  with the court. The physician must certify that the ward is

10  competent to understand the implications of terminating the

11  guardianship. A copy of the notice and certificate must be

12  served on all interested persons.

13         Section 12.  Subsection (9) is added to section

14  744.361, Florida Statutes, to read:

15         744.361  Powers and duties of guardian.--

16         (9)  A professional guardian must ensure that each of

17  the guardian's wards is personally visited by the guardian or

18  one of the guardian's professional staff at least once each

19  calendar quarter. During the personal visit, the guardian or

20  the guardian's professional staff person must assess:

21         (a)  The ward's physical appearance and condition;

22         (b)  The appropriateness of the ward's current living

23  situation; and

24         (c)  The need for any additional services and the

25  necessity for continuation of existing services, taking into

26  consideration all aspects of social, psychological,

27  educational, direct service, health, and personal care needs.

28  

29  This subsection does not apply to a professional guardian who

30  has been appointed only as guardian of the property.

31  

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 1         Section 13.  Subsection (2) of section 744.365, Florida

 2  Statutes, is amended to read:

 3         744.365  Verified inventory.--

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

 5  following:

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

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

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

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

10  and any cause of action accruing to the ward and any trusts of

11  which the ward is a beneficiary;

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

13  sufficient detail so that it may be clearly identified or

14  located; and

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

16  without limitation, social security benefits and pensions.

17         Section 14.  Subsections (1) and (3) of section

18  744.367, Florida Statutes, are amended to read:

19         744.367  Duty to file annual guardianship report.--

20         (1)  Unless the court requires filing on a

21  calendar-year basis, each guardian of the person shall file

22  with the court an annual guardianship plan within 90 days

23  after the last day of the anniversary month the letters of

24  guardianship were signed, and the plan must cover the coming

25  fiscal year, ending on the last day in such anniversary month.

26  If the court requires calendar-year filing, the guardianship

27  plan must be filed on or before April 1 of each year within 90

28  days after the end of the calendar year.

29         (3)  The annual guardianship report of a guardian of

30  the property must consist of an annual accounting, and the

31  annual report of a guardian of the person of an incapacitated

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 1  person must consist of an annual guardianship plan. The annual

 2  report shall be served on the ward, unless the ward is a minor

 3  under the age of 14 years or is totally incapacitated, and on

 4  the attorney for the ward, if any. The guardian shall provide

 5  a copy to any other person as the court may direct.

 6         Section 15.  Section 744.3675, Florida Statutes, is

 7  amended to read:

 8         744.3675  Annual guardianship plan.--Each guardian of

 9  the person must file with the court an annual guardianship

10  plan which updates information about the condition of the

11  ward.  The annual plan must specify the current needs of the

12  ward and how those needs are proposed to be met in the coming

13  year.

14         (1)  Each plan for an adult ward must, if applicable,

15  include:

16         (a)  Information concerning the residence of the ward,

17  including:

18         1.  The ward's address at the time of filing the plan;

19         2.  The name and address of each place where the ward

20  was maintained during the preceding year;

21         3.  The length of stay of the ward at each place;

22         4.  A statement of whether the current residential

23  setting is best suited for the current needs of the ward; and

24         5.  Plans for ensuring during the coming year that the

25  ward is in the best residential setting to meet his or her

26  needs.

27         (b)  Information concerning the medical and mental

28  health conditions condition and treatment and rehabilitation

29  needs of the ward, including:

30         1.  A resume of any professional medical treatment

31  given to the ward during the preceding year;

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 1         2.  The report of a physician who examined the ward no

 2  more than 90 days before the beginning of the applicable

 3  reporting period. The Such report must contain an evaluation

 4  of the ward's condition and a statement of the current level

 5  of capacity of the ward; and

 6         3.  The plan for providing provision of medical, mental

 7  health, and rehabilitative services in the coming year.

 8         (c)  Information concerning the social condition of the

 9  ward, including:

10         1.  The social and personal services currently used

11  utilized by the ward;

12         2.  The social skills of the ward, including a

13  statement of how well the ward communicates and maintains

14  interpersonal relationships with others; and

15         3.  A description of the ward's activities at

16  communication and visitation; and

17         3.4.  The social needs of the ward.

18         (2)  Each plan filed by the legal guardian of a minor

19  must include:

20         (a)  Information concerning the residence of the minor,

21  including:

22         1.  The minor's address at the time of filing the plan;

23  and

24         2.  The name and address of each place where the minor

25  lived during the preceding year.

26         (b)  Information concerning the medical and mental

27  health conditions and treatment and rehabilitation needs of

28  the minor, including:

29         1.  A resume of any professional medical treatment

30  given to the minor during the preceding year;

31  

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 1         2.  A report from the physician who examined the minor

 2  no more than 180 days before the beginning of the applicable

 3  reporting period which contains an evaluation of the minor's

 4  physical and mental conditions; and

 5         3.  The plan for providing medical services in the

 6  coming year.

 7         (c)  Information concerning the education of the minor,

 8  including:

 9         1.  A summary of the school progress report;

10         2.  The social development of the minor, including a

11  statement of how well the minor communicates and maintains

12  interpersonal relationships with others; and

13         3.  The social needs of the minor.

14         (3)(2)  Each plan for an adult ward must address the

15  issue of restoration of rights to the ward and include:

16         (a)  A summary of activities during the preceding year

17  which were designed to enhance increase the capacity of the

18  ward;

19         (b)  A statement of whether the ward can have any

20  rights restored; and

21         (c)  A statement of whether restoration of any rights

22  will be sought.

23         (4)(3)  The court, in its discretion, may require

24  reexamination of the ward by a physician at any time.

25         Section 16.  Subsections (2) and (3) of section

26  744.3678, Florida Statutes, are amended to read:

27         744.3678  Annual accounting.--

28         (2)  The annual accounting must include:

29         (a)  A full and correct account of the receipts and

30  disbursements of all of the ward's property over which the

31  guardian has control and a statement of the ward's property on

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 1  hand at the end of the accounting period. This paragraph does

 2  not apply to any property or any trust of which the ward is a

 3  beneficiary but which is not under the control or

 4  administration of the guardian.

 5         (b)  A copy of the annual or year-end statement of all

 6  of the ward's cash accounts from each of the institutions

 7  where the cash is deposited.

 8         (3)  The guardian must obtain a receipt, or canceled

 9  check, or other proof of payment for all expenditures and

10  disbursements made on behalf of the ward. The guardian must

11  preserve all evidence of payment the receipts and canceled

12  checks, along with other substantiating papers, for a period

13  of 3 years after his or her discharge. The receipts, proof of

14  payment checks, and substantiating papers need not be filed

15  with the court but shall be made available for inspection and

16  review at the such time and in such place and before such

17  persons as the court may from time to time order.

18         Section 17.  Section 744.3679, Florida Statutes, is

19  amended to read:

20         744.3679  Simplified accounting procedures in certain

21  cases.--

22         (1)  In a guardianship of property, when all assets of

23  the estate are in designated depositories under s. 69.031 and

24  the only transactions that occur in that account are interest

25  accrual, deposits from a pursuant to settlement, or financial

26  institution service charges, the guardian may elect to file an

27  accounting consisting of:

28         (a)  The original or a certified copy of the year-end

29  statement of the ward's account from the financial

30  institution; and

31  

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 1         (b)  A statement by the guardian under penalty of

 2  perjury that the guardian has custody and control of the

 3  ward's property as shown in the year-end statement.

 4         (2)  The clerk has no responsibility to monitor or

 5  audit the accounts and may not accept a fee for doing so.

 6         (2)(3)  The accounting allowed by subsection (1) is in

 7  lieu of the accounting and auditing procedures under s.

 8  744.3678(2) ss. 744.3678 and 744.368(1)(f). However, any

 9  interested party may seek judicial review as provided in s.

10  744.3685.

11         (3)(4)  The guardian need not be represented by an

12  attorney in order to file the annual accounting allowed by

13  subsection (1).

14         Section 18.  Subsection (3) of section 744.368, Florida

15  Statutes, is amended to read:

16         744.368  Responsibilities of the clerk of the circuit

17  court.--

18         (3)  Within 90 days after the filing of the verified

19  inventory and accountings initial or annual guardianship

20  report by a guardian of the property, the clerk shall audit

21  the verified inventory and or the accountings annual

22  accounting. The clerk shall advise the court of the results of

23  the audit.

24         Section 19.  Subsection (19) of section 744.441,

25  Florida Statutes, is amended to read:

26         744.441  Powers of guardian upon court approval.--After

27  obtaining approval of the court pursuant to a petition for

28  authorization to act, a plenary guardian of the property, or a

29  limited guardian of the property within the powers granted by

30  the order appointing the guardian or an approved annual or

31  amended guardianship report, may:

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 1         (19)  Create or amend revocable or irrevocable trusts

 2  of property of the ward's estate which may extend beyond the

 3  disability or life of the ward in connection with estate,

 4  gift, income, or other tax planning or in connection with

 5  estate planning. Notwithstanding s. 737.201(2), and unless

 6  otherwise ordered, the court shall retain continuing

 7  supervisory jurisdiction over any trust so created or amended,

 8  and over the trustee or trustees of any trust so created or

 9  amended, who by accepting the trusteeship or the amendment is

10  deemed to have submitted personally to the jurisdiction of the

11  court for all purposes.

12         Section 20.  Section 744.442, Florida Statutes, is

13  created to read:

14         744.442  Delegation of authority.--

15         (1)  A guardian may designate a surrogate guardian to

16  exercise the powers of the guardian if the guardian is

17  unavailable to act. A person designated as a surrogate

18  guardian under this section must be a professional guardian.

19         (2)(a)  A guardian must file a petition with the court

20  requesting permission to designate a surrogate guardian.

21         (b)  If the court approves the designation, the order

22  must specify the name and business address of the surrogate

23  guardian, and the duration of appointment, which may not

24  exceed 30 days. The court may extend the appointment for good

25  cause shown. The surrogate guardian may exercise all powers of

26  the guardian unless limited by order of the court. The

27  surrogate guardian must file with the court an oath swearing

28  or affirming that he or she will faithfully perform the duties

29  delegated. The court may require the surrogate guardian to

30  post a bond.

31  

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 1         (3)  This section does not limit the responsibility of

 2  the guardian to the ward and to the court. The guardian is

 3  liable for the acts of the surrogate guardian. The guardian

 4  may terminate the authority of the surrogate guardian by

 5  filing a written notice of the termination with the court.

 6         (4)  The surrogate guardian is subject to the

 7  jurisdiction of the court as if appointed to serve as

 8  guardian.

 9         Section 21.  Paragraphs (c), (e), and (f) of subsection

10  (2) and subsection (4) of section 744.464, Florida Statutes,

11  are amended to read:

12         744.464  Restoration to capacity.--

13         (2)  SUGGESTION OF CAPACITY.--

14         (c)  The court shall immediately send notice of the

15  filing of the suggestion of capacity to the ward, the

16  guardian, the attorney for the ward, if any, the state

17  attorney, and any other interested persons designated by the

18  court.  Formal notice must be served on the guardian.

19  Informal notice may be served on other persons. Notice need

20  not be served on the person who filed the suggestion of

21  capacity.

22         (e)  If an objection is timely filed, or if the medical

23  examination suggests that full restoration is not appropriate,

24  the court shall set the matter for hearing.  If the ward does

25  not have an attorney, the court shall appoint one to represent

26  the ward.

27         (f)  Notice of the hearing and copies of the objections

28  and medical examination reports shall be served upon the ward,

29  the ward's attorney, the guardian, the state attorney, the

30  ward's next of kin, and any other interested persons as

31  directed by the court.

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 1         (4)  TIME LIMITATION FOR FILING SUGGESTION OF

 2  CAPACITY.--Notwithstanding this section, a suggestion of

 3  capacity may not be filed within 90 days after an adjudication

 4  of incapacity or denial of restoration, unless good cause is

 5  shown.

 6         Section 22.  Section 744.474, Florida Statutes, is

 7  amended to read:

 8         744.474  Reasons for removal of guardian.--A guardian

 9  may be removed for any of the following reasons, and the

10  removal shall be in addition to any other penalties prescribed

11  by law:

12         (1)  Fraud in obtaining her or his appointment.

13         (2)  Failure to discharge her or his duties.

14         (3)  Abuse of her or his powers.

15         (4)  An incapacity or illness, including substance

16  abuse, which renders the guardian incapable of discharging her

17  or his duties.

18         (5)  Failure to comply with any order of the court.

19         (6)  Failure to return schedules of property sold or

20  accounts of sales of property or to produce and exhibit the

21  ward's assets when so required.

22         (7)  The wasting, embezzlement, or other mismanagement

23  of the ward's property.

24         (8)  Failure to give bond or security for any purpose

25  when required by the court or failure to file with the annual

26  guardianship plan the evidence required by s. 744.351 that the

27  sureties on her or his bond are alive and solvent.

28         (9)  Conviction of a felony.

29         (10)  Appointment of a receiver, trustee in bankruptcy,

30  or liquidator for any corporate guardian.

31  

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 1         (11)  Development of a conflict of interest between the

 2  ward and the guardian.

 3         (12)  Having been found guilty of, regardless of

 4  adjudication, or entered a plea of nolo contendere or guilty

 5  to, any offense prohibited under s. 435.03 or under any

 6  similar statute of another jurisdiction.

 7         (13)  A material failure to comply with the

 8  guardianship report by the guardian.

 9         (14)  A failure to comply with the rules for timely

10  filing the initial and annual guardianship reports.

11         (15)  A failure to fulfill the guardianship education

12  requirements.

13         (16)  The improper management of the ward's assets.

14         (17)  A material change in the ward's financial

15  circumstances such that the guardian is no longer qualified to

16  manage the finances of the ward, or the previous degree of

17  management is no longer required.

18         (18)  After appointment, the guardian becomes a

19  disqualified person as set forth in s. 744.309(3).

20         (19)  Upon a showing by a person who did not receive

21  notice of the petition for adjudication of incapacity, when

22  such notice is required, or who is related to the ward within

23  the relationships specified for nonresident relatives in ss.

24  744.309(2) and 744.312(2) and who has not previously been

25  rejected by the court as a guardian that:

26         (a)  the current guardian is not a family member; and

27  subsection (20) applies, in which case the court may remove

28  the current guardian and appoint the petitioner, or such

29  person as the court deems in the best interest of the ward, as

30  guardian of the person or of the property, or both.

31  

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 1         (20)(b)  Upon a showing that removal of the current

 2  guardian is in the best interest of the ward, the court may

 3  remove the current guardian and appoint the petitioner, or

 4  such person as the court deems in the best interest of the

 5  ward, either as guardian of the person or of the property, or

 6  both.

 7  

 8  In determining whether a guardian who is related by blood or

 9  marriage to the ward is to be removed, there shall be a

10  rebuttable presumption that the guardian is acting in the best

11  interests of the ward.

12         Section 23.  Section 744.511, Florida Statutes, is

13  amended to read:

14         744.511  Accounting upon removal.--A removed guardian

15  shall file with the court a true, complete, and final report

16  of his or her guardianship within 20 days after removal and

17  shall serve a copy on the successor guardian and the ward,

18  unless the ward is a minor under 14 years of age or has been

19  determined to be totally incapacitated.

20         Section 24.  Section 744.527, Florida Statutes, is

21  amended to read:

22         744.527  Final reports and application for discharge;

23  hearing.--

24         (1)  When the court terminates the guardianship,

25  according to the reasons set forth in s. 744.521 the guardian

26  shall promptly file his or her final report. If the ward has

27  died, the guardian must file a final report with the court no

28  later than 45 days after he or she has been served with

29  letters of administration or letters of curatorship. If no

30  objections are filed and if it appears that the guardian has

31  made full and complete distribution to the person entitled and

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 1  has otherwise faithfully discharged his or her duties, the

 2  court shall approve the final report.  If objections are

 3  filed, the court shall conduct a hearing in the same manner as

 4  provided for a hearing on objections to annual guardianship

 5  reports.

 6         (2)  The guardian applying for discharge may is

 7  authorized to retain from the funds in his or her possession a

 8  sufficient amount to pay the final costs of administration,

 9  including guardian and attorney's fees regardless of the death

10  of the ward, accruing between the filing of his or her final

11  returns and the order of discharge.

12         Section 25.  Subsection (3) of section 744.528, Florida

13  Statutes, is amended to read:

14         744.528  Discharge of guardian named as personal

15  representative.--

16         (3)  Any interested person may file a notice of The

17  court shall set a hearing on any objections filed by the

18  beneficiaries. Notice of the hearing must shall be served upon

19  the guardian, beneficiaries of the ward's estate, and any

20  other person to whom the court directs service. If a notice of

21  hearing on the objections is not served within 90 days after

22  filing of the objections, the objections are deemed abandoned.

23         Section 26.  Subsection (6) of section 744.708, Florida

24  Statutes, is amended to read:

25         744.708  Reports and standards.--

26         (6)  A The public guardian shall ensure that each of

27  the guardian's wards is personally visited ward is seen by the

28  public guardian or by a professional staff person of the

29  public guardian at least once each calendar quarter four times

30  a year. During this personal visit, the public guardian or the

31  professional staff person shall assess:

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 1         (a)  The ward's physical and mental appearance and

 2  condition;

 3         (b)  The appropriateness of the ward's current living

 4  situation; and

 5         (c)  The need for any additional services and the

 6  necessity for continuation of existing services, taking into

 7  consideration all aspects of social, psychological,

 8  educational, direct service, health, and personal care needs.

 9         Section 27.  Paragraph (a) of subsection (5) of section

10  765.101, Florida Statutes, is amended to read:

11         765.101  Definitions.--As used in this chapter:

12         (5)  "Health care decision" means:

13         (a)  Informed consent, refusal of consent, or

14  withdrawal of consent to any and all health care, including

15  life-prolonging procedures and mental health treatment, unless

16  otherwise stated in the advance directives.

17         Section 28.  Paragraph (c) of subsection (8) of section

18  121.091, Florida Statutes, is amended to read:

19         121.091  Benefits payable under the system.--Benefits

20  may not be paid under this section unless the member has

21  terminated employment as provided in s. 121.021(39)(a) or

22  begun participation in the Deferred Retirement Option Program

23  as provided in subsection (13), and a proper application has

24  been filed in the manner prescribed by the department. The

25  department may cancel an application for retirement benefits

26  when the member or beneficiary fails to timely provide the

27  information and documents required by this chapter and the

28  department's rules. The department shall adopt rules

29  establishing procedures for application for retirement

30  benefits and for the cancellation of such application when the

31  required information or documents are not received.

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 1         (8)  DESIGNATION OF BENEFICIARIES.--

 2         (c)  Notwithstanding the member's designation of

 3  benefits to be paid through a trust to a beneficiary that is a

 4  natural person as provided in s. 121.021(46), and

 5  notwithstanding the provisions of the trust, benefits shall be

 6  paid directly to the beneficiary if the such person is no

 7  longer a minor or incapacitated as defined in s. 744.102(12)

 8  and (13) s. 744.102(11) and (12).

 9         Section 29.  Paragraph (c) of subsection (20) of

10  section 121.4501, Florida Statutes, is amended to read:

11         121.4501  Public Employee Optional Retirement

12  Program.--

13         (20)  DESIGNATION OF BENEFICIARIES.--

14         (c)  Notwithstanding the participant's designation of

15  benefits to be paid through a trust to a beneficiary that is a

16  natural person, and notwithstanding the provisions of the

17  trust, benefits shall be paid directly to the beneficiary if

18  such person is no longer a minor or incapacitated as defined

19  in s. 744.102(12) and (13) s. 744.102(11) and (12).

20         Section 30.  Subsection (1) and paragraphs (b), (d),

21  and (f) of subsection (4) of section 709.08, Florida Statutes,

22  are amended to read:

23         709.08  Durable power of attorney.--

24         (1)  CREATION OF DURABLE POWER OF ATTORNEY.--A durable

25  power of attorney is a written power of attorney by which a

26  principal designates another as the principal's attorney in

27  fact. The durable power of attorney must be in writing, must

28  be executed with the same formalities required for the

29  conveyance of real property by Florida law, and must contain

30  the words: "This durable power of attorney is not affected by

31  subsequent incapacity of the principal except as provided in

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 1  s. 709.08, Florida Statutes"; or similar words that show the

 2  principal's intent that the authority conferred is exercisable

 3  notwithstanding the principal's subsequent incapacity, except

 4  as otherwise provided by this section.  The durable power of

 5  attorney is exercisable as of the date of execution; however,

 6  if the durable power of attorney is conditioned upon the

 7  principal's lack of capacity to manage property as defined in

 8  s. 744.102(12)(a) s. 744.102(11)(a), the durable power of

 9  attorney is exercisable upon the delivery of affidavits in

10  paragraphs (4)(c) and (d) to the third party.

11         (4)  PROTECTION WITHOUT NOTICE; GOOD FAITH ACTS;

12  AFFIDAVITS.--

13         (b)  Any third party may rely upon the authority

14  granted in a durable power of attorney that is conditioned on

15  the principal's lack of capacity to manage property as defined

16  in s. 744.102(12)(a) s. 744.102(11)(a) only after receiving

17  the affidavits provided in paragraphs (c) and (d), and such

18  reliance shall end when the third party has received notice as

19  provided in subsection (5).

20         (d)  A determination that a principal lacks the

21  capacity to manage property as defined in s. 744.102(12)(a) s.

22  744.102(11)(a) must be made and evidenced by the affidavit of

23  a physician licensed to practice medicine pursuant to chapters

24  458 and 459 as of the date of the affidavit. A judicial

25  determination that the principal lacks the capacity to manage

26  property pursuant to chapter 744 is not required prior to the

27  determination by the physician and the execution of the

28  affidavit. For purposes of this section, the physician

29  executing the affidavit must be the primary physician who has

30  responsibility for the treatment and care of the principal.

31  The affidavit executed by a physician must state where the

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 1  physician is licensed to practice medicine, that the physician

 2  is the primary physician who has responsibility for the

 3  treatment and care of the principal, and that the physician

 4  believes that the principal lacks the capacity to manage

 5  property as defined in s. 744.102(11)(a). The affidavit may,

 6  but need not, be in the following form:

 7  

 8  STATE OF............

 9  COUNTY OF............

10  

11         Before me, the undersigned authority, personally

12  appeared ...(name of physician)..., Affiant, who swore or

13  affirmed that:

14         1.  Affiant is a physician licensed to practice

15  medicine in ...(name of state, territory, or foreign

16  country)....

17         2.  Affiant is the primary physician who has

18  responsibility for the treatment and care of ...(principal's

19  name)....

20         3.  To the best of Affiant's knowledge after reasonable

21  inquiry, Affiant believes that the principal lacks the

22  capacity to manage property, including taking those actions

23  necessary to obtain, administer, and dispose of real and

24  personal property, intangible property, business property,

25  benefits, and income.

26  

27                                                ................

28                                                 ...(Affiant)...

29  

30  

31  

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 1         Sworn to (or affirmed) and subscribed before me this

 2  ...(day of)... ...(month)..., ...(year)..., by ...(name of

 3  person making statement)...

 4  

 5  ...(Signature of Notary Public-State of Florida)...

 6  

 7  ...(Print, Type, or Stamp Commissioned Name of Notary

 8  Public)...

 9  

10  Personally Known OR Produced Identification

11  ...(Type of Identification Produced)...

12  

13         (f)  A third party may not rely on the authority

14  granted in a durable power of attorney conditioned on the

15  principal's lack of capacity to manage property as defined in

16  s. 744.102(12)(a) s. 744.102(11)(a) when any affidavit

17  presented has been executed more than 6 months prior to the

18  first presentation of the durable power of attorney to the

19  third party.

20         Section 31.  Subsection (3) of section 744.1085,

21  Florida Statutes, is amended to read:

22         744.1085  Regulation of professional guardians;

23  application; bond required; educational requirements.--

24         (3)  Each professional guardian defined in s.

25  744.102(17) s. 744.102(16) and public guardian must receive a

26  minimum of 40 hours of instruction and training. Each

27  professional guardian must receive a minimum of 16 hours of

28  continuing education every 2 calendar years after the year in

29  which the initial 40-hour educational requirement is met. The

30  instruction and education must be completed through a course

31  approved or offered by the Statewide Public Guardianship

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 1  Office. The expenses incurred to satisfy the educational

 2  requirements prescribed in this section may not be paid with

 3  the assets of any ward. This subsection does not apply to any

 4  attorney who is licensed to practice law in this state.

 5         Section 32.  For the purpose of incorporating the

 6  amendment made by this act to section 744.3215, Florida

 7  Statutes, in a reference thereto, subsection (4) of section

 8  117.107, Florida Statutes, is reenacted to read:

 9         117.107  Prohibited acts.--

10         (4)  A notary public may not take the acknowledgment of

11  or administer an oath to a person whom the notary public

12  actually knows to have been adjudicated mentally incapacitated

13  by a court of competent jurisdiction, where the acknowledgment

14  or oath necessitates the exercise of a right that has been

15  removed pursuant to s. 744.3215(2) or (3), and where the

16  person has not been restored to capacity as a matter of

17  record.

18         Section 33.  This act shall take effect July 1, 2006.

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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 1            *****************************************

 2                          SENATE SUMMARY

 3    Authorizes the revocation or suspension of a guardian's
      registration. Provides that the Statewide Public
 4    Guardianship Office need not review credit and criminal
      investigations from a college or university before
 5    registering the institution as a professional guardian.
      Provides that in the event of death, the surviving parent
 6    is the sole natural guardian of a minor. Prohibits a
      natural guardian from using the property of a ward for
 7    the guardian's benefit without a court order. Authorizes
      a court to appoint a guardian ad litem to represent a
 8    minor's interest in certain claims that exceed a
      specified amount. Requires a court to appoint a guardian
 9    ad litem to represent a minor's interest in certain
      claims that exceed a specified amount. Requires a court
10    to award reasonable fees and costs to the guardian ad
      litem. Increases the time an emergency temporary guardian
11    may serve. Requires an emergency temporary guardian to
      file a final report. Specifies the persons who may file a
12    petition for a standby guardian. Requires that notice of
      the appointment hearing be served on the ward's next of
13    kin. Clarifies when a standby guardian may assume the
      duties of guardian. Requires that each standby guardian
14    submit to credit and criminal background checks. Reduces
      the time in which a guardian must complete the education
15    courses from 1 year to 4 months. Provides that an
      incapacitated person retains the right to receive
16    necessary services and rehabilitation necessary to
      maximize the quality of the person's life. Requires that
17    the court appoint an attorney from a specified registry.
      Requires attorneys to complete certain training programs.
18    Provides that a member of the examining committee may not
      be related to or associated with certain persons.
19    Prohibits a person who has served on an examining
      committee from being appointed as the guardian. Requires
20    each member of an examining committee to file an
      affidavit stating that he or she has completed the
21    mandatory training. Requires each member to report the
      time and date that he or she examined the person alleged
22    to be incapacitated. Requires the voluntary guardian to
      include certain information in the annual report.
23    Requires a professional guardian to ensure that each of
      his or her wards is personally visited at least
24    quarterly. Provides for the assessment of certain
      conditions during the personal visit. Requires that the
25    verified inventory include information on any trust of
      which a ward is a beneficiary. Requires that the annual
26    report of the guardian be filed on or before April 1 of
      each year. Requires the annual guardianship plan to
27    include information on the mental condition of the ward.
      Provides that property of or a trust benefiting the ward
28    which is not under the control of the guardian is not
      subject to annual accounting. Requires that the verified
29    inventory and the accountings be audited within a
      specified time period. Requires the court to retain
30    oversight for assets of a ward transferred to a trust.
      Provides that a guardian may designate a surrogate
31    guardian to exercise the powers of the guardian if the
      guardian is unavailable to act. Requires that the
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 1    surrogate guardian be a professional guardian. Provides
      the procedures to be used in appointing a surrogate
 2    guardian. Provides the duties of a surrogate guardian.
      Authorizes the guardian to terminate the services of the
 3    surrogate guardian by filing a written notice of the
      termination with the court. Removes a time limitation on
 4    the filing of a suggestion of capacity. Provides for a
      notice of the hearing for objections to a report filed by
 5    a guardian. Requires that a public guardian ensure that
      each of his or her wards is personally visited at least
 6    quarterly. Provides for the assessment of certain
      conditions during the personal visit.
 7  

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