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A bill to be entitled

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An act relating to summary guardianship; creating s.

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394.45983, F.S.; establishing summary guardianship for

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persons with mental illness; providing for a petition,

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notice, hearing, and counsel for appointing a summary

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guardian; providing for a court order; providing the

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powers and duties of a summary guardian; providing for

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court costs; creating s. 394.45985, F.S.; specifying that

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a person with mental illness who has met certain criteria

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may not be presumed to be incapacitated for the purpose of

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appointing a guardian; creating s. 744.3086, F.S.;

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providing that a summary guardian may be appointed without

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an adjudication of incapacity; providing an effective

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date.

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

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     Section 1.  Section 394.45983, Florida Statutes, is created

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to read:

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     394.45983 Summary guardian.--

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     (1) APPOINTMENT.--A circuit court may appoint a summary

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guardian, without an adjudication of incapacity, for a person

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with mental illness if the person lacks the capacity to do some,

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but not all, of the tasks necessary to care for his or her

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person, property, or estate or if the person has voluntarily

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petitioned for the appointment of a summary guardian. Except as

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otherwise specified, the proceeding shall be governed by the

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Florida Rules of Civil Procedure.

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     (2) PETITION.--A petition to appoint a summary guardian for

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a person with mental illness may be executed by an adult who is a

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resident of this state. The petition must be verified and must:

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     (a) State the name, age, and present address of the

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petitioner and his or her relationship to the person with mental

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illness;

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     (b) State the name, age, county of residence, and present

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address of the person with mental illness;

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     (c) Allege that the petitioner believes that the person

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with mental illness needs a summary guardian and specify the

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factual information on which such belief is based;

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     (d) Specify the exact areas in which the person lacks the

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capacity to make informed decisions about his or her care and

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treatment services or to meet the essential requirements for his

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or her physical health or safety;

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     (e) Specify the legal disabilities to which the person is

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subject; and

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     (f) State the name of the proposed summary guardian, the

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relationship of that person to the person with mental illness,

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and the reason why a summary guardian should be appointed. If a

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willing and qualified summary guardian cannot be located, the

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petition must so state.

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     (3) NOTICE.--

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     (a) Notice of the filing of the petition must be given to

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the person with mental illness, both verbally and in writing, in

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the language of the person and in English. Notice must also be

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given to the person's next of kin and to other persons as the

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court directs. A copy of the petition to appoint a summary

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guardian must be served with the notice.

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     (b) The notice must state that a hearing will be held to

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inquire into the capacity of the person with mental illness as

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described in the petition. The notice must also state the date of

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the hearing on the petition.

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     (c) The notice must state that the person with mental

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illness has the right to be represented by counsel of his or her

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own choice and that if the person cannot afford an attorney, the

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court will appoint one.

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     (4) COUNSEL.--

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     (a) Every person with mental illness who is the subject of

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a petition to appoint a summary guardian must be represented by

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an attorney of his or her choice.

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     (b) If the person cannot afford an attorney, the court

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shall appoint one. The court shall appoint counsel if no

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appearance has been filed within 10 business days before the

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hearing.

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     (5) HEARING.--

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     (a) Upon the filing of the petition to appoint a summary

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guardian, the court shall set a date for holding a hearing on the

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petition. The hearing must be held as soon as practicable after

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the petition is filed, but a reasonable delay for the purpose of

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investigation, discovery, or procuring counsel or witnesses may

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be granted as necessary.

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     (b) The hearing must be held at the time and place

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specified in the notice of hearing and must be conducted in a

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manner consistent with due process.

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     (c) The person with mental illness has the right to be

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present at the hearing and shall be present unless good cause to

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exclude the person can be shown. The person with mental illness

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has the right to remain silent, to present evidence, to call and

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cross-examine witnesses, and to have the hearing open or closed,

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as the person chooses.

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     (d) At the hearing, the court shall receive and consider

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all reports relevant to the person's mental illness, including

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the person's clinical record, psychiatric evaluation, and other

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professional reports documenting the person's condition and needs

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deemed necessary for his or her well-being.

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     (e) The Florida Evidence Code, chapter 90, applies at the

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hearing. The burden of proof must be by clear and convincing

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evidence.

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     (6) COURT ORDER.--If the court finds that the person with

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mental illness requires the appointment of a summary guardian,

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the court shall enter a written order appointing the guardian and

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containing the findings of facts and conclusions of law on which

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the court made its decision, including:

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     (a) The nature and scope of the person's incapacity;

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     (b) The exact areas in which the individual lacks capacity

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to make informed decisions about care and treatment services or

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to meet the essential requirements for his or her physical health

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and safety;

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     (c) The specific legal disabilities to which the person

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with mental illness is subject; and

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     (d) The powers, duties, and responsibilities of the summary

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guardian, including bonding of the summary guardian as provided

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by s. 744.351.

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     (7) LEGAL RIGHTS.--A person with mental illness for whom a

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summary guardian has been appointed retains all legal rights

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except those that have been specifically granted to the summary

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guardian.

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     (8) POWERS AND DUTIES.--A summary guardian for a person

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with mental illness must be a person or corporation qualified to

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act as guardian, and has the same powers, duties, and

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responsibilities required of a guardian under chapter 744 or

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those defined by a court order issued under this section.

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However, a summary guardian is:

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     (a) Exempted from rule 5.030, Florida Probate Rules; and

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     (b) Not required to file an initial guardianship report

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under s. 744.362, an initial guardianship plan under s 744.363,

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an annual plan under s. 744.3675, or an annual accounting under

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s. 744.3678 if the court determines that the person with mental

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illness:

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     1. Receives income only from supplemental or social

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security disability benefits and the summary guardian is the

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person's representative payee for those benefits; and

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     2. Is receiving mental health services and has a clinical

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record with a service provider.

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     (9) COURT COSTS.--In all proceedings under this section,

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the clerk of the circuit court is entitled to the service charges

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as provided by law, including the cost of recording the petition,

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bond, and decree and issuing an order of summary guardianship and

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letters, if any.

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     Section 2.  Section 394.45985, Florida Statutes, is created

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to read:

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     394.45985 Appointment of a guardian.--A person with mental

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illness may not be presumed incapacitated for the purposes of

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appointing a guardian under chapter 744 solely due to a

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determination that the person has met the criteria for

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involuntary examination under s. 394.463, involuntary outpatient

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placement under s. 394.4655, involuntary inpatient placement

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under s. 394.467, appointment of a guardian advocate under s.

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394.4598, or the appointment of a summary guardian under s.

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394.45983. A determination of incapacity and the appointment of a

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guardian must be conducted in a separate proceeding according to

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the procedures and requirements of chapter 744 and the Florida

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Probate Rules.

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     Section 3.  Section 744.3086, Florida Statutes, is created

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to read:

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     744.3086 Summary guardians.--A circuit court may appoint a

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summary guardian pursuant to s. 394.45985, without an

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adjudication of incapacity, for a person with mental illness if

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the person lacks the capacity to do some, but not all, of the

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tasks necessary to care for his or her person, property, or

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estate, or if the person has voluntarily petitioned for the

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appointment of a summary guardian. Unless otherwise specified,

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the proceeding shall be governed by the Florida Probate Rules. In

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accordance with the legislative intent of this chapter, courts

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are encouraged to consider appointing a summary guardian, when

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appropriate, as a less restrictive form of guardianship.

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     Section 4.  This act shall take effect July 1, 2008.