Florida Senate - 2015                                     SB 366
       By Senator Stargel
       15-00270-15                                            2015366__
    1                        A bill to be entitled                      
    2         An act relating to guardianship proceedings; amending
    3         s. 744.108, F.S.; providing that fees and costs
    4         incurred by an attorney who has rendered services to a
    5         ward in compensation proceedings are payable from
    6         guardianship assets; providing that expert testimony
    7         is not required in proceedings to determine
    8         compensation for an attorney or guardian; amending s.
    9         744.3025, F.S.; providing that a court may appoint a
   10         guardian ad litem to represent a minor if necessary to
   11         protect the minor’s interest in a settlement;
   12         providing that a settlement of a minor’s claim is
   13         subject to certain confidentiality provisions;
   14         amending s. 744.3031, F.S.; requiring notification of
   15         an alleged incapacitated person and such person’s
   16         attorney of a petition for appointment of an emergency
   17         temporary guardian before a hearing on the petition
   18         commences; amending s. 744.3115, F.S.; directing the
   19         court to specify authority for health care decisions
   20         with respect to a ward’s advance directive; amending
   21         s. 744.312, F.S.; providing an additional
   22         consideration for the court when appointing a
   23         guardian; amending s. 744.331, F.S.; directing the
   24         court to consider certain factors when determining
   25         incapacity; requiring that the examining committee be
   26         paid from state funds as court-appointed expert
   27         witnesses if a petition for incapacity is dismissed;
   28         requiring that a petitioner reimburse the state for
   29         expert witness fees if the court finds the petition to
   30         have been filed in bad faith; amending s. 744.344,
   31         F.S.; providing for the court to hear testimony
   32         regarding the appointment of an emergency guardian;
   33         providing conditions under which the court is
   34         authorized to appoint an emergency guardian; amending
   35         s. 744.345, F.S.; revising provisions relating to
   36         letters of guardianship; creating s. 744.359, F.S.;
   37         prohibiting abuse, neglect, or exploitation of a ward
   38         by a guardian; requiring reporting thereof to an abuse
   39         hotline; amending s. 744.361, F.S.; providing
   40         additional powers and duties of a guardian; amending
   41         s. 744.367, F.S.; revising the period during which a
   42         guardian must file an annual guardianship plan with
   43         the court; amending s. 744.369, F.S.; providing for
   44         continuance of guardianship under certain
   45         circumstances; amending s. 744.464, F.S.; establishing
   46         the burden of proof for determining restoration of
   47         capacity of a ward in pending guardianship cases;
   48         providing applicability; providing an effective date.
   50  Be It Enacted by the Legislature of the State of Florida:
   52         Section 1. Subsections (5) and (8) of section 744.108,
   53  Florida Statutes, are amended, and subsection (9) is added to
   54  that section, to read:
   55         744.108 Guardian Guardian’s and attorney attorney’s fees
   56  and expenses.—
   57         (5) All petitions for guardian guardian’s and attorney
   58  attorney’s fees and expenses must be accompanied by an itemized
   59  description of the services performed for the fees and expenses
   60  sought to be recovered.
   61         (8) When court proceedings are instituted to review or
   62  determine a guardian’s or an attorney’s fees under subsection
   63  (2), such proceedings are part of the guardianship
   64  administration process and the costs, including costs and
   65  attorney fees for the guardian’s attorney, an attorney appointed
   66  under s. 744.331(2), or an attorney who has rendered services to
   67  the ward, shall be determined by the court and paid from the
   68  assets of the guardianship estate unless the court finds the
   69  requested compensation under subsection (2) to be substantially
   70  unreasonable.
   71         (9) With respect to a request for compensation by the
   72  guardian, the guardian’s attorney, a person employed by the
   73  guardian, an attorney appointed under s. 744.331(2), or an
   74  attorney who has rendered services to the ward, the court may
   75  determine the compensation to be reasonable without receiving
   76  expert testimony. A person or party may offer expert testimony
   77  for or against a request for compensation after giving notice to
   78  interested persons. A prevailing party’s reasonable expert
   79  witness fees shall be awarded by the court and paid from the
   80  assets of the guardianship estate.
   81         Section 2. Section 744.3025, Florida Statutes, is amended
   82  to read:
   83         744.3025 Claims of minors.—
   84         (1)(a) The court may appoint a guardian ad litem to
   85  represent the minor’s interest before approving a settlement of
   86  the minor’s portion of the claim in a any case in which a minor
   87  has a claim for personal injury, property damage, wrongful
   88  death, or other cause of action in which the gross settlement of
   89  the claim exceeds $15,000 if the court believes a guardian ad
   90  litem is necessary to protect the minor’s interest.
   91         (b) Except as provided in paragraph (e), the court shall
   92  appoint a guardian ad litem to represent the minor’s interest
   93  before approving a settlement of the minor’s claim in a any case
   94  in which the gross settlement involving a minor equals or
   95  exceeds $50,000.
   96         (c) The appointment of the guardian ad litem must be
   97  without the necessity of bond or notice.
   98         (d) The duty of the guardian ad litem is to protect the
   99  minor’s interests as described in the Florida Probate Rules.
  100         (e) A court need not appoint a guardian ad litem for the
  101  minor if a guardian of the minor has previously been appointed
  102  and that guardian has no potential adverse interest to the
  103  minor. A court may appoint a guardian ad litem if the court
  104  believes a guardian ad litem is necessary to protect the
  105  interests of the minor.
  106         (2) Unless waived, the court shall award reasonable fees
  107  and costs to the guardian ad litem to be paid out of the gross
  108  proceeds of the settlement.
  109         (3) A settlement of a claim pursuant to this section is
  110  subject to the confidentiality provisions of this chapter.
  111         Section 3. Subsections (2) through (8) of section 744.3031,
  112  Florida Statutes, are renumbered as subsections (3) through (9),
  113  respectively, and a new subsection (2) is added to that section,
  114  to read:
  115         744.3031 Emergency temporary guardianship.—
  116         (2) Notice of filing of the petition for appointment of an
  117  emergency temporary guardian and any hearing on the petition
  118  must be served on the alleged incapacitated person and on the
  119  alleged incapacitated person’s attorney before the hearing on
  120  the petition is commenced.
  121         Section 4. Section 744.3115, Florida Statutes, is amended
  122  to read:
  123         744.3115 Advance directives for health care.—In each
  124  proceeding in which a guardian is appointed under this chapter,
  125  the court shall determine whether the ward, prior to incapacity,
  126  has executed any valid advance directive under chapter 765. If
  127  any advance directive exists, the court shall specify in its
  128  order and letters of guardianship what authority, if any, the
  129  guardian shall exercise over the ward with regard to health care
  130  decisions and what authority, if any, the surrogate shall
  131  continue to exercise over the ward with regard to health care
  132  decisions surrogate. Pursuant to the grounds listed in s.
  133  765.105, the court, upon its own motion, may, with notice to the
  134  surrogate and any other appropriate parties, modify or revoke
  135  the authority of the surrogate to make health care decisions for
  136  the ward. If the court order provides that the guardian is
  137  responsible for making health care decisions for the ward, the
  138  guardian shall assume the responsibilities listed in s. 765.205.
  139  For purposes of this section, the term “health care decision”
  140  has the same meaning as in s. 765.101.
  141         Section 5. Subsection (1) of section 744.312, Florida
  142  Statutes, is amended, subsections (3) and (4) are renumbered as
  143  subsections (4) and (5), respectively, and a new subsection (3)
  144  is added to that section, to read:
  145         744.312 Considerations in appointment of guardian.—
  146         (1) Subject to the provisions of subsection (5) (4), the
  147  court may appoint any person who is fit and proper and qualified
  148  to act as guardian, whether related to the ward or not.
  149         (3) The court may not give preference to the appointment of
  150  a person solely based on the fact that the person was appointed
  151  to serve as an emergency temporary guardian.
  152         Section 6. Subsection (6) and paragraph (c) of subsection
  153  (7) of section 744.331, Florida Statutes, are amended to read:
  154         744.331 Procedures to determine incapacity.—
  155         (6) ORDER DETERMINING INCAPACITY.—If, after making findings
  156  of fact on the basis of clear and convincing evidence, the court
  157  finds that a person is incapacitated with respect to the
  158  exercise of a particular right, or all rights, the court shall
  159  enter a written order determining such incapacity. In making
  160  this determination, the court shall consider the person’s unique
  161  needs and abilities and may only remove those rights that the
  162  court finds the person does not have the legal capacity to
  163  exercise. A person is determined to be incapacitated only with
  164  respect to those rights specified in the order.
  165         (a) The court shall make the following findings:
  166         1. The exact nature and scope of the person’s incapacities;
  167         2. The exact areas in which the person lacks capacity to
  168  make informed decisions about care and treatment services or to
  169  meet the essential requirements for her or his physical or
  170  mental health or safety;
  171         3. The specific legal disabilities to which the person is
  172  subject; and
  173         4. The specific rights that the person is incapable of
  174  exercising.
  175         (b) When an order determines that a person is incapable of
  176  exercising delegable rights, the court must consider and find
  177  whether there is an alternative to guardianship that will
  178  sufficiently address the problems of the incapacitated person. A
  179  guardian must be appointed to exercise the incapacitated
  180  person’s delegable rights unless the court finds there is an
  181  alternative that sufficiently addresses the problems of the
  182  incapacitated person. A guardian may not be appointed if the
  183  court finds there is an alternative to guardianship which will
  184  sufficiently address the problems of the incapacitated person.
  185         (c) In determining that a person is totally incapacitated,
  186  the order must contain findings of fact demonstrating that the
  187  individual is totally without capacity to care for herself or
  188  himself or her or his property.
  189         (d) An order adjudicating a person to be incapacitated
  190  constitutes proof of such incapacity until further order of the
  191  court.
  192         (e) After the order determining that the person is
  193  incapacitated has been filed with the clerk, it must be served
  194  on the incapacitated person. The person is deemed incapacitated
  195  only to the extent of the findings of the court. The filing of
  196  the order is notice of the incapacity. An incapacitated person
  197  retains all rights not specifically removed by the court.
  198         (f) Upon the filing of a verified statement by an
  199  interested person stating:
  200         1. That he or she has a good faith belief that the alleged
  201  incapacitated person’s trust, trust amendment, or durable power
  202  of attorney is invalid; and
  203         2. A reasonable factual basis for that belief,
  205  the trust, trust amendment, or durable power of attorney shall
  206  not be deemed to be an alternative to the appointment of a
  207  guardian. The appointment of a guardian does not limit the
  208  court’s power to determine that certain authority granted by a
  209  durable power of attorney is to remain exercisable by the agent
  210  attorney in fact.
  211         (7) FEES.—
  212         (c) If the petition is dismissed:,
  213         1. The fees of the examining committee shall be paid upon
  214  court order as expert witness fees under s. 29.004(6).
  215         2. Costs and attorney attorney’s fees of the proceeding may
  216  be assessed against the petitioner if the court finds the
  217  petition to have been filed in bad faith. If the court finds bad
  218  faith under this subparagraph, the petitioner shall reimburse
  219  the state courts system for any amounts paid under subparagraph
  220  1.
  221         Section 7. Subsection (4) of section 744.344, Florida
  222  Statutes, is amended to read:
  223         744.344 Order of appointment.—
  224         (4) If a petition for the appointment of a guardian has not
  225  been filed or ruled upon at the time of the hearing on the
  226  petition to determine capacity, the court may appoint an
  227  emergency temporary guardian in the manner and for the purposes
  228  specified in s. 744.3031.
  229         Section 8. Section 744.345, Florida Statutes, is amended to
  230  read:
  231         744.345 Letters of guardianship.—Letters of guardianship
  232  shall be issued to the guardian and shall specify whether the
  233  guardianship pertains to the person, or the property, or both,
  234  of the ward. The letters must state whether the guardianship is
  235  plenary or limited, and, if limited, the letters must state the
  236  powers and duties of the guardian. If the guardianship is
  237  limited, The letters shall state whether or not and to what
  238  extent the guardian is authorized to act on behalf of the ward
  239  with regard to any advance directive previously executed by the
  240  ward.
  241         Section 9. Section 744.359, Florida Statutes, is created to
  242  read:
  243         744.359 Abuse, neglect, or exploitation by a guardian.—
  244         (1) A guardian may not abuse, neglect, or exploit the ward.
  245         (2) A guardian has committed exploitation when the
  246  guardian:
  247         (a) Commits fraud in obtaining appointment as a guardian.
  248         (b) Abuses his or her powers.
  249         (c) Wastes, embezzles, or intentionally mismanages the
  250  assets of the ward.
  251         (3) A person who believes that a guardian is abusing,
  252  neglecting, or exploiting a ward shall report the incident to
  253  the central abuse hotline of the Department of Children and
  254  Families.
  255         Section 10. Section 744.361, Florida Statutes, is amended
  256  to read:
  257         744.361 Powers and duties of guardian.—
  258         (1) The guardian of an incapacitated person is a fiduciary
  259  and may exercise only those rights that have been removed from
  260  the ward and delegated to the guardian. The guardian of a minor
  261  shall exercise the powers of a plenary guardian.
  262         (2) The guardian shall act within the scope of the
  263  authority granted by the court and as provided by law.
  264         (3) The guardian shall act in good faith.
  265         (4) A guardian may not act in a manner that is contrary to
  266  the ward’s best interests under the circumstances.
  267         (5) A guardian who has special skills or expertise, or is
  268  appointed in reliance upon the guardian’s representation that
  269  the guardian has special skills or expertise, shall use those
  270  special skills or expertise.
  271         (6)(2) The guardian shall file an initial guardianship
  272  report in accordance with s. 744.362.
  273         (7)(3) The guardian shall file a guardianship report
  274  annually in accordance with s. 744.367.
  275         (8)(4) The guardian of the person shall implement the
  276  guardianship plan.
  277         (9)(5) When two or more guardians have been appointed, the
  278  guardians shall consult with each other.
  279         (10)(6) A guardian who is given authority over any property
  280  of the ward shall:
  281         (a) Protect and preserve the property and invest it
  282  prudently as provided in chapter 518, apply it as provided in s.
  283  744.397, and keep clear, distinct, and accurate records of the
  284  administration of the ward’s property account for it faithfully.
  285         (b) Perform all other duties required of him or her by law.
  286         (c) At the termination of the guardianship, deliver the
  287  property of the ward to the person lawfully entitled to it.
  288         (11)(7) The guardian shall observe the standards in dealing
  289  with the guardianship property that would be observed by a
  290  prudent person dealing with the property of another, and, if the
  291  guardian has special skills or is named guardian on the basis of
  292  representations of special skills or expertise, he or she is
  293  under a duty to use those skills.
  294         (12)(8) The guardian, if authorized by the court, shall
  295  take possession of all of the ward’s property and of the rents,
  296  income, issues, and profits from it, whether accruing before or
  297  after the guardian’s appointment, and of the proceeds arising
  298  from the sale, lease, or mortgage of the property or of any
  299  part. All of the property and the rents, income, issues, and
  300  profits from it are assets in the hands of the guardian for the
  301  payment of debts, taxes, claims, charges, and expenses of the
  302  guardianship and for the care, support, maintenance, and
  303  education of the ward or the ward’s dependents, as provided for
  304  under the terms of the guardianship plan or by law.
  305         (13) Recognizing that every individual has unique needs and
  306  abilities, a guardian who is given authority over a ward’s
  307  person shall, as appropriate under the circumstances:
  308         (a) Consider the expressed desires of the ward as known by
  309  the guardian when making decisions that affect the ward.
  310         (b) Allow the ward to maintain contact with family and
  311  friends unless the guardian believes that such contact may cause
  312  harm to the ward.
  313         (c) Not restrict the physical liberty of the ward more than
  314  reasonably necessary to protect the ward or another person from
  315  serious physical injury, illness, or disease.
  316         (d) Assist the ward in developing or regaining his or her
  317  own capacity, if medically possible.
  318         (e) Notify the court if the guardian believes that the ward
  319  has regained capacity and that one or more of the rights that
  320  have been removed should be restored.
  321         (f) To the extent applicable, make provision for the
  322  medical, mental, rehabilitative, or personal care services for
  323  the welfare of the ward.
  324         (g) To the extent applicable, acquire a clear understanding
  325  of the risks and benefits of a recommended course of health care
  326  treatment before making a health care decision.
  327         (h) Evaluate the ward’s medical and health care options,
  328  financial resources, and desires when making residential
  329  decisions that are best suited for the current needs of the
  330  ward.
  331         (i) Advocate on behalf of the ward in institutional and
  332  other residential settings.
  333         (14)(9) A professional guardian must ensure that each of
  334  the guardian’s wards is personally visited by the guardian or
  335  one of the guardian’s professional staff at least once each
  336  calendar quarter. During the personal visit, the guardian or the
  337  guardian’s professional staff person shall assess:
  338         (a) The ward’s physical appearance and condition.
  339         (b) The appropriateness of the ward’s current living
  340  situation.
  341         (c) The need for any additional services and the necessity
  342  for continuation of existing services, taking into consideration
  343  all aspects of social, psychological, educational, direct
  344  service, health, and personal care needs.
  345         (d) The nature and extent of visitation and communication
  346  with the ward’s family and friends.
  348  This subsection does not apply to a professional guardian who
  349  has been appointed only as guardian of the property.
  350         Section 11. Subsection (1) of section 744.367, Florida
  351  Statutes, is amended to read:
  352         744.367 Duty to file annual guardianship report.—
  353         (1) Unless the court requires filing on a calendar-year
  354  basis, each guardian of the person shall file with the court an
  355  annual guardianship plan at least 60 days, but no more than
  356  within 90 days, before after the last day of the anniversary
  357  month that the letters of guardianship were signed, and the plan
  358  must cover the coming fiscal year, ending on the last day in
  359  such anniversary month. If the court requires calendar-year
  360  filing, the guardianship plan for the coming calendar year must
  361  be filed on or after September 1 but no later than December 1 of
  362  the current year before April 1 of each year.
  363         Section 12. Subsection (8) of section 744.369, Florida
  364  Statutes, is amended to read:
  365         744.369 Judicial review of guardianship reports.—
  366         (8) The approved report constitutes the authority for the
  367  guardian to act in the forthcoming year. The powers of the
  368  guardian are limited by the terms of the report. The annual
  369  report may not grant additional authority to the guardian
  370  without a hearing, as provided for in s. 744.331, to determine
  371  that the ward is incapacitated to act in that matter. Unless the
  372  court orders otherwise, the guardian may continue to act under
  373  authority of the preceding year’s approved report until the
  374  forthcoming year’s report is approved.
  375         Section 13. Paragraphs (a) and (b) of subsection (3) of
  376  section 744.464, Florida Statutes, are amended to read:
  377         744.464 Restoration to capacity.—
  378         (3) ORDER OF RESTORATION.—
  379         (a) If no objections are filed, and the court is satisfied
  380  that with the medical examination establishes by a preponderance
  381  of the evidence that all or some restoration is appropriate, the
  382  court shall enter an order of restoration of capacity, restoring
  383  all or some of the rights which were removed from the ward in
  384  accordance with those findings. The order must be issued within
  385  30 days after the medical report is filed.
  386         (b) At the conclusion of a hearing, conducted pursuant to
  387  s. 744.1095, the court shall make specific findings of fact and,
  388  based on a preponderance of the evidence, enter an order either
  389  denying the suggestion of capacity or restoring all or some of
  390  the rights which were removed from the ward. The ward has the
  391  burden of proving by a preponderance of the evidence that the
  392  restoration of capacity is warranted.
  393         Section 14. The amendments made by this act to ss. 744.108,
  394  744.3025, and 744.331, Florida Statutes, apply to all
  395  proceedings pending on the effective date of this act.
  396         Section 15. This act shall take effect upon becoming a law.