Senate Bill sb0472c2

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    Florida Senate - 2006                     CS for CS for SB 472

    By the Committees on Children and Families; Judiciary; and
    Senator Saunders




    586-2027-06

  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         file a report regarding his or her examination

30         of an alleged incapacitated person; providing

31         for an award of attorney's fees; amending s.

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 1         744.341, F.S.; requiring the voluntary guardian

 2         to include certain information in the annual

 3         report; requiring that certain specified

 4         information be included in the notice to

 5         terminate a voluntary guardianship; amending s.

 6         744.361, F.S.; requiring a professional

 7         guardian to ensure that each of his or her

 8         wards is personally visited at least quarterly;

 9         providing for the assessment of certain

10         conditions during the personal visit; amending

11         s. 744.365, F.S.; requiring that the verified

12         inventory include information on any trust to

13         which a ward is a beneficiary; amending s.

14         744.367, F.S.; requiring that the annual report

15         of the guardian be filed on or before April 1

16         of each year; amending s. 744.3675, F.S.;

17         requiring that the annual guardianship plan

18         include information on the mental condition of

19         the ward; providing for an annual guardianship

20         plan for wards who are minors; amending s.

21         744.3678, F.S.; providing that property of or a

22         trust benefiting the ward which is not under

23         the control of the guardian is not subject to

24         annual accounting; requiring certain

25         documentation for the annual accounting;

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

27         provision prohibiting the clerk of court from

28         having responsibility for monitoring or

29         auditing accounts in certain cases; amending s.

30         744.368, F.S.; requiring that the verified

31         inventory and the accountings be audited within

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 1         a specified time period; amending s. 744.441,

 2         F.S.; providing that a guardian, with the

 3         approval of the court, may amend a revocable

 4         trust of the property of the ward; creating s.

 5         744.442, F.S.; providing that a guardian may

 6         designate a surrogate guardian to exercise the

 7         powers of the guardian if the guardian is

 8         unavailable to act; requiring the surrogate

 9         guardian to be a professional guardian;

10         providing the procedures to be used in

11         appointing a surrogate guardian; providing the

12         duties of a surrogate guardian; requiring the

13         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         (2)  "Audit" means a systematic review of financial and

31  all other documents to ensure compliance with s. 744.368,

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 1  rules of court, and local procedures, using generally accepted

 2  auditing and accounting principles.

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

 4  court.

 5         (4)(3)  "Corporate guardian" means a corporation

 6  authorized to exercise fiduciary or guardianship powers in

 7  this state and includes a nonprofit corporate guardian.

 8         (5)(4)  "Court" means the circuit court.

 9         (6)(5)  "Court monitor" means a person appointed by the

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

11  information concerning a ward.

12         (7)(6)  "Estate" means the property of a ward subject

13  to administration.

14         (8)(7)  "Foreign guardian" means a guardian appointed

15  in another state or country.

16         (9)(8)  "Guardian" means a person who has been

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

18  property, or both.

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

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

21  specifically designated by court order entered after the court

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

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

24  property, or after the person has voluntarily petitioned for

25  appointment of a limited guardian.

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

27  appointed by the court to exercise all delegable legal rights

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

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

30  care for his or her person or property.

31  

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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)  If an emergency temporary guardian 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), (5), and (7) of

13  section 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 pursuant to ss.

19  27.40 and 27.42 by the circuit's Article V indigent services

20  committee. Appointments must be made on a rotating basis,

21  taking into consideration conflicts arising under this

22  chapter.

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

24  person alleged to be incapacitated in all cases involving a

25  petition for adjudication of incapacity.  The alleged

26  incapacitated person may substitute her or his own attorney

27  for the attorney appointed by the court.

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  One of three members of the committee must have knowledge of

21  the type of incapacity alleged in the petition. Unless good

22  cause is shown, the attending or family physician may not be

23  appointed to the committee.  If the attending or family

24  physician is available for consultation, the committee must

25  consult with the physician.  Members of the examining

26  committee may not be related to or associated with one

27  another, or with the petitioner, with counsel for the

28  petitioner or the proposed guardian, or the person alleged to

29  be totally or partially incapacitated.  A member may not be

30  employed by any private or governmental agency that has

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

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

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

 3  petitioner may not serve as a member of the examining

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

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

 6  language that the alleged incapacitated person speaks or to

 7  communicate in a medium understandable to the alleged

 8  incapacitated person if she or he is able to communicate. The

 9  clerk of the court shall send notice of the appointment to

10  each person appointed no later than 3 days after the court's

11  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 each the examining committee member as

22  part of his or her its written report. The comprehensive

23  examination report should be an essential element, but not

24  necessarily the only element, used in making a capacity and

25  guardianship decision.  The comprehensive examination must

26  include, if indicated:

27         1.  A physical examination;

28         2.  A mental health examination; and

29         3.  A functional assessment.

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)  Each committee member's The committee's written

 5  report must include:

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

 7  recommended course of treatment.

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

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

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

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

12  his residence; consent to medical treatment; and make

13  decisions affecting her or his social environment.

14         3.  The results of the comprehensive examination and

15  the committee member's members' assessment of information

16  provided by the attending or family physician, if any.

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

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

19  of that incapacity, and the factual basis for the

20  determination that the person lacks that capacity.

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

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

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

24  examination supplies answers posed to the alleged

25  incapacitated person, the report must include the response and

26  the name of the person supplying the answer.

27         6.5.  The signature of each member of the committee

28  member and the date and time the member conducted his or her

29  examination.

30         (h)(e)  A copy of each committee member's the report

31  must be served on the petitioner and on the attorney for the

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 1  alleged incapacitated person within 3 days after the report is

 2  filed and at least 5 days before the hearing on the petition.

 3         (5)  ADJUDICATORY HEARING.--

 4         (a)  Upon appointment of the examining committee, the

 5  court shall set the date upon which the petition will be

 6  heard.  The date for the adjudicatory hearing must be set no

 7  more than 14 days after the filing of the reports report of

 8  the examining committee members, unless good cause is shown.

 9  The adjudicatory hearing must be conducted at the time and

10  place specified in the notice of hearing and in a manner

11  consistent with due process.

12         (b)  The alleged incapacitated person must be present

13  at the adjudicatory hearing, unless waived by the alleged

14  incapacitated person or the person's attorney or unless good

15  cause can be shown for her or his absence. Determination of

16  good cause rests in the sound discretion of the court.

17         (c)  In the adjudicatory hearing on a petition alleging

18  incapacity, the partial or total incapacity of the person must

19  be established by clear and convincing evidence.

20         (7)  FEES.--

21         (a)  The examining committee and any attorney appointed

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

23  determined by the court.

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

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

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

27  claim against the guardianship property for any amounts paid

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

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

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

31  period, the state is thereafter barred from asserting the

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

 2  the court shall enter an order authorizing immediate payment

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

 4  of the such payments.

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

 6  fees of the proceeding may be assessed against the petitioner

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

 8  faith.

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

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

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

12  read:

13         744.341  Voluntary guardianship.--

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

15  with the court a certificate from a licensed physician who

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

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

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

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

20  the voluntary guardian.

21         (5)(4)  A voluntary guardianship may be terminated by

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

23  guardianship is terminated. The notice must be accompanied by

24  a certificate from a licensed physician who has examined the

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

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

27  competent to understand the implications of terminating the

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

29  served on all interested persons.

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

31  744.361, Florida Statutes, to read:

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 1         744.361  Powers and duties of guardian.--

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

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

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

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

 6  the guardian's professional staff person must assess:

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

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

 9  situation; and

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

11  necessity for continuation of existing services, taking into

12  consideration all aspects of social, psychological,

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

14  

15  This subsection does not apply to a professional guardian who

16  has been appointed only as guardian of the property.

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

18  Statutes, is amended to read:

19         744.365  Verified inventory.--

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

21  following:

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

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

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

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

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

27  which the ward is a beneficiary;

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

29  sufficient detail so that it may be clearly identified or

30  located; and

31  

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

 2  without limitation, social security benefits and pensions.

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

 4  744.367, Florida Statutes, are amended to read:

 5         744.367  Duty to file annual guardianship report.--

 6         (1)  Unless the court requires filing on a

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

 8  with the court an annual guardianship plan within 90 days

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

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

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

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

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

14  days after the end of the calendar year.

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

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

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

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

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

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

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

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

23         Section 15.  Section 744.3675, Florida Statutes, is

24  amended to read:

25         744.3675  Annual guardianship plan.--Each guardian of

26  the person must file with the court an annual guardianship

27  plan which updates information about the condition of the

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

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

30  year.

31  

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

 2  include:

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

 4  including:

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

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

 7  was maintained during the preceding year;

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

 9         4.  A statement of whether the current residential

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

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

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

13  needs.

14         (b)  Information concerning the medical and mental

15  health conditions condition and treatment and rehabilitation

16  needs of the ward, including:

17         1.  A resume of any professional medical treatment

18  given to the ward during the preceding year;

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

20  more than 90 days before the beginning of the applicable

21  reporting period. The Such report must contain an evaluation

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

23  of capacity of the ward; and

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

25  health, and rehabilitative services in the coming year.

26         (c)  Information concerning the social condition of the

27  ward, including:

28         1.  The social and personal services currently used

29  utilized by the ward;

30  

31  

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

 2  statement of how well the ward communicates and maintains

 3  interpersonal relationships with others; and

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

 5  communication and visitation; and

 6         3.4.  The social needs of the ward.

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

 8  must include:

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

10  including:

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

12  and

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

14  lived during the preceding year.

15         (b)  Information concerning the medical and mental

16  health conditions and treatment and rehabilitation needs of

17  the minor, including:

18         1.  A resume of any professional medical treatment

19  given to the minor during the preceding year;

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

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

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

23  physical and mental conditions; and

24         3.  The plan for providing medical services in the

25  coming year.

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

27  including:

28         1.  A summary of the school progress report;

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

30  statement of how well the minor communicates and maintains

31  interpersonal relationships with others; and

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 1         3.  The social needs of the minor.

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

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

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

 5  which were designed to enhance increase the capacity of the

 6  ward;

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

 8  rights restored; and

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

10  will be sought.

11         (4)(3)  The court, in its discretion, may require

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

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

14  744.3678, Florida Statutes, are amended to read:

15         744.3678  Annual accounting.--

16         (2)  The annual accounting must include:

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

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

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

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

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

22  beneficiary but which is not under the control or

23  administration of the guardian.

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

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

26  where the cash is deposited.

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

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

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

30  preserve all evidence of payment the receipts and canceled

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

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

 2  payment checks, and substantiating papers need not be filed

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

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

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

 6         Section 17.  Section 744.3679, Florida Statutes, is

 7  amended to read:

 8         744.3679  Simplified accounting procedures in certain

 9  cases.--

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

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

12  the only transactions that occur in that account are interest

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

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

15  accounting consisting of:

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

17  statement of the ward's account from the financial

18  institution; and

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

20  perjury that the guardian has custody and control of the

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

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

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

24         (2)(3)  The accounting allowed by subsection (1) is in

25  lieu of the accounting and auditing procedures under s.

26  744.3678(2) ss. 744.3678 and 744.368(1)(f). However, any

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

28  744.3685.

29         (3)(4)  The guardian need not be represented by an

30  attorney in order to file the annual accounting allowed by

31  subsection (1).

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

 2  Statutes, is amended to read:

 3         744.368  Responsibilities of the clerk of the circuit

 4  court.--

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

 6  inventory and accountings initial or annual guardianship

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

 8  the verified inventory and or the accountings annual

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

10  the audit.

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

12  Florida Statutes, is amended to read:

13         744.441  Powers of guardian upon court approval.--After

14  obtaining approval of the court pursuant to a petition for

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

16  limited guardian of the property within the powers granted by

17  the order appointing the guardian or an approved annual or

18  amended guardianship report, may:

19         (19)  Create or amend revocable trusts or create

20  irrevocable trusts of property of the ward's estate which may

21  extend beyond the disability or life of the ward in connection

22  with estate, gift, income, or other tax planning or in

23  connection with estate planning.

24         Section 20.  Section 744.442, Florida Statutes, is

25  created to read:

26         744.442  Delegation of authority.--

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

28  exercise the powers of the guardian if the guardian is

29  unavailable to act. A person designated as a surrogate

30  guardian under this section must be a professional guardian.

31  

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

 2  requesting permission to designate a surrogate guardian.

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

 4  must specify the name and business address of the surrogate

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

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

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

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

 9  surrogate guardian must file with the court an oath swearing

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

11  delegated. The court may require the surrogate guardian to

12  post a bond.

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

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

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

16  may terminate the authority of the surrogate guardian by

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

18         (4)  The surrogate guardian is subject to the

19  jurisdiction of the court as if appointed to serve as

20  guardian.

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

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

23  are amended to read:

24         744.464  Restoration to capacity.--

25         (2)  SUGGESTION OF CAPACITY.--

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

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

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

29  attorney, and any other interested persons designated by the

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

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

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

 2  capacity.

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

 4  examination suggests that full restoration is not appropriate,

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

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

 7  the ward.

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

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

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

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

12  directed by the court.

13         (4)  TIME LIMITATION FOR FILING SUGGESTION OF

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

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

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

17  shown.

18         Section 22.  Section 744.474, Florida Statutes, is

19  amended to read:

20         744.474  Reasons for removal of guardian.--A guardian

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

22  removal shall be in addition to any other penalties prescribed

23  by law:

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

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

26         (3)  Abuse of her or his powers.

27         (4)  An incapacity or illness, including substance

28  abuse, which renders the guardian incapable of discharging her

29  or his duties.

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

31  

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

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

 3  ward's assets when so required.

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

 5  of the ward's property.

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

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

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

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

10         (9)  Conviction of a felony.

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

12  or liquidator for any corporate guardian.

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

14  ward and the guardian.

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

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

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

18  similar statute of another jurisdiction.

19         (13)  A material failure to comply with the

20  guardianship report by the guardian.

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

22  filing the initial and annual guardianship reports.

23         (15)  A failure to fulfill the guardianship education

24  requirements.

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

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

27  circumstances such that the guardian is no longer qualified to

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

29  management is no longer required.

30         (18)  After appointment, the guardian becomes a

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

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

 2  notice of the petition for adjudication of incapacity, when

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

 4  the relationships specified for nonresident relatives in ss.

 5  744.309(2) and 744.312(2) and who has not previously been

 6  rejected by the court as a guardian that:

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

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

 9  the current guardian and appoint the petitioner, or such

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

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

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

13  guardian is in the best interest of the ward. In determining

14  whether a guardian who is related by blood or marriage to the

15  ward is to be removed, there shall be a rebuttable presumption

16  that the guardian is acting in the best interests of the

17  ward., the court may remove the current guardian and appoint

18  the petitioner, or such person as the court deems in the best

19  interest of the ward, either as guardian of the person or of

20  the property, or both.

21         Section 23.  Section 744.511, Florida Statutes, is

22  amended to read:

23         744.511  Accounting upon removal.--A removed guardian

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

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

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

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

28  determined to be totally incapacitated.

29         Section 24.  Section 744.527, Florida Statutes, is

30  amended to read:

31  

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 1         744.527  Final reports and application for discharge;

 2  hearing.--

 3         (1)  When the court terminates the guardianship,

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

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

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

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

 8  letters of administration or letters of curatorship. If no

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

10  made full and complete distribution to the person entitled and

11  has otherwise faithfully discharged his or her duties, the

12  court shall approve the final report.  If objections are

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

14  provided for a hearing on objections to annual guardianship

15  reports.

16         (2)  The guardian applying for discharge may is

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

18  sufficient amount to pay the final costs of administration,

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

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

21  returns and the order of discharge.

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

23  Statutes, is amended to read:

24         744.528  Discharge of guardian named as personal

25  representative.--

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

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

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

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

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

31  

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

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

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

 4  Statutes, is amended to read:

 5         744.708  Reports and standards.--

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

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

 8  public guardian or by a professional staff person of the

 9  public guardian at least once each calendar quarter four times

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

11  professional staff person shall assess:

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

13  condition;

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

15  situation; and

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

17  necessity for continuation of existing services, taking into

18  consideration all aspects of social, psychological,

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

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

21  765.101, Florida Statutes, is amended to read:

22         765.101  Definitions.--As used in this chapter:

23         (5)  "Health care decision" means:

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

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

26  life-prolonging procedures and mental health treatment, unless

27  otherwise stated in the advance directives.

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

29  121.091, Florida Statutes, is amended to read:

30         121.091  Benefits payable under the system.--Benefits

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

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

 2  begun participation in the Deferred Retirement Option Program

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

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

 5  department may cancel an application for retirement benefits

 6  when the member or beneficiary fails to timely provide the

 7  information and documents required by this chapter and the

 8  department's rules. The department shall adopt rules

 9  establishing procedures for application for retirement

10  benefits and for the cancellation of such application when the

11  required information or documents are not received.

12         (8)  DESIGNATION OF BENEFICIARIES.--

13         (c)  Notwithstanding the member's designation of

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

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

16  notwithstanding the provisions of the trust, benefits shall be

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

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

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

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

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

22         121.4501  Public Employee Optional Retirement

23  Program.--

24         (20)  DESIGNATION OF BENEFICIARIES.--

25         (c)  Notwithstanding the participant's designation of

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

27  natural person, and notwithstanding the provisions of the

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

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

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

31  

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

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

 3  are amended to read:

 4         709.08  Durable power of attorney.--

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

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

 7  principal designates another as the principal's attorney in

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

 9  be executed with the same formalities required for the

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

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

12  subsequent incapacity of the principal except as provided in

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

14  principal's intent that the authority conferred is exercisable

15  notwithstanding the principal's subsequent incapacity, except

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

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

18  if the durable power of attorney is conditioned upon the

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

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

21  attorney is exercisable upon the delivery of affidavits in

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

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

24  AFFIDAVITS.--

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

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

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

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

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

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

31  provided in subsection (5).

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 1         (d)  A determination that a principal lacks the

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

 3  744.102(11)(a) must be made and evidenced by the affidavit of

 4  a physician licensed to practice medicine pursuant to chapters

 5  458 and 459 as of the date of the affidavit. A judicial

 6  determination that the principal lacks the capacity to manage

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

 8  determination by the physician and the execution of the

 9  affidavit. For purposes of this section, the physician

10  executing the affidavit must be the primary physician who has

11  responsibility for the treatment and care of the principal.

12  The affidavit executed by a physician must state where the

13  physician is licensed to practice medicine, that the physician

14  is the primary physician who has responsibility for the

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

16  believes that the principal lacks the capacity to manage

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

18  but need not, be in the following form:

19  

20  STATE OF............

21  COUNTY OF............

22  

23         Before me, the undersigned authority, personally

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

25  affirmed that:

26         1.  Affiant is a physician licensed to practice

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

28  country)....

29         2.  Affiant is the primary physician who has

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

31  name)....

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

 2  inquiry, Affiant believes that the principal lacks the

 3  capacity to manage property, including taking those actions

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

 5  personal property, intangible property, business property,

 6  benefits, and income.

 7  

 8                                                ................

 9                                                 ...(Affiant)...

10  

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

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

13  person making statement)...

14  

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

16  

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

18  Public)...

19  

20  Personally Known OR Produced Identification

21  ...(Type of Identification Produced)...

22  

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

24  granted in a durable power of attorney conditioned on the

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

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

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

28  first presentation of the durable power of attorney to the

29  third party.

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

31  Florida Statutes, is amended to read:

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 1         744.1085  Regulation of professional guardians;

 2  application; bond required; educational requirements.--

 3         (3)  Each professional guardian defined in s.

 4  744.102(17) s. 744.102(16) and public guardian must receive a

 5  minimum of 40 hours of instruction and training. Each

 6  professional guardian must receive a minimum of 16 hours of

 7  continuing education every 2 calendar years after the year in

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

 9  instruction and education must be completed through a course

10  approved or offered by the Statewide Public Guardianship

11  Office. The expenses incurred to satisfy the educational

12  requirements prescribed in this section may not be paid with

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

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

15         Section 32.  For the purpose of incorporating the

16  amendment made by this act to section 744.3215, Florida

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

18  117.107, Florida Statutes, is reenacted to read:

19         117.107  Prohibited acts.--

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

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

22  actually knows to have been adjudicated mentally incapacitated

23  by a court of competent jurisdiction, where the acknowledgment

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

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

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

27  record.

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

29  

30  

31  

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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                          CS for SB 472

 3                                 

 4  Amends the definition "audit" to include documents other than
    financial documents in order to ensure compliance with other
 5  provisions of law, the rules of court, and local procedures,
    using generally accepted auditing and accounting principles.
 6  
    Clarifies that when a court is determining whether a guardian
 7  who is related by blood or marriage is removed, there shall be
    a rebuttable presumption that the guardian is acting in the
 8  best interest of the ward.

 9  

10  

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