Florida Senate - 2017                                     SB 172
       By Senator Passidomo
       28-00186B-17                                           2017172__
    1                        A bill to be entitled                      
    2         An act relating to guardianship; amending s. 744.331,
    3         F.S.; requiring each examining committee member in a
    4         proceeding to determine incapacity to file his or her
    5         report with the clerk of the court within a specified
    6         timeframe after appointment; requiring the clerk of
    7         the court to serve each report on specified persons
    8         within a specified timeframe; requiring the clerk of
    9         the court to file a certificate of service of each
   10         report in the incapacity proceeding; revising the
   11         timeframe before the hearing on the petition within
   12         which specified parties must be served with all
   13         reports; authorizing the petitioner and the alleged
   14         incapacitated person to move for a continuance if
   15         service is not timely effectuated and to object to the
   16         introduction of all or any part of a report by filing
   17         and serving a written objection to admissibility on
   18         the other party within a specified timeframe;
   19         specifying that the admissibility of the report is
   20         governed by the rules of evidence; requiring that the
   21         adjudicatory hearing be conducted within a specified
   22         timeframe after the filing of the last filed report;
   23         amending s. 744.3725, F.S.; eliminating the
   24         requirement that a court must first find that a ward’s
   25         spouse has consented to dissolution of marriage before
   26         the court may authorize a guardian to exercise
   27         specified rights; amending s. 744.441, F.S.; removing
   28         the cap on funeral expenses that may be paid from a
   29         ward’s estate; reenacting s. 744.3215(4), F.S.,
   30         relating to the rights of persons determined
   31         incapacitated, to incorporate the amendment made to s.
   32         744.3725, F.S., in a reference thereto; providing an
   33         effective date.
   35  Be It Enacted by the Legislature of the State of Florida:
   37         Section 1. Paragraphs (e) and (h) of subsection (3) and
   38  paragraph (a) of subsection (5) of section 744.331, Florida
   39  Statutes, are amended, and paragraph (i) is added to subsection
   40  (3) of that section, to read:
   41         744.331 Procedures to determine incapacity.—
   42         (3) EXAMINING COMMITTEE.—
   43         (e) Each member of the examining committee shall examine
   44  the person. Each examining committee member must determine the
   45  alleged incapacitated person’s ability to exercise those rights
   46  specified in s. 744.3215. In addition to the examination, each
   47  examining committee member must have access to, and may
   48  consider, previous examinations of the person, including, but
   49  not limited to, habilitation plans, school records, and
   50  psychological and psychosocial reports voluntarily offered for
   51  use by the alleged incapacitated person. Each member of the
   52  examining committee must file his or her report with the clerk
   53  of the court submit a report within 15 days after appointment.
   54         (h) Within 3 days after receipt of each examining committee
   55  member’s report, the clerk shall serve the report on the
   56  petitioner’s counsel and the attorney for the alleged
   57  incapacitated person, by electronic mail delivery or U.S. mail,
   58  and, upon service, shall file a certificate of service in the
   59  incapacity proceeding. The petitioner’s counsel and the attorney
   60  for the alleged incapacitated person must be served with all
   61  reports at least 10 days before the hearing on the petition. If
   62  such service is not timely effectuated, the petitioner or the
   63  alleged incapacitated person may move for a continuance of the
   64  hearing A copy of each committee member’s report must be served
   65  on the petitioner and on the attorney for the alleged
   66  incapacitated person within 3 days after the report is filed and
   67  at least 5 days before the hearing on the petition.
   68         (i) The petitioner and the alleged incapacitated person may
   69  object to the introduction into evidence of all or any portion
   70  of the examining committee members’ reports by filing and
   71  serving a written objection on the other party no later than 5
   72  days before the adjudicatory hearing. The objection must state
   73  the basis upon which the challenge to admissibility is made. If
   74  an objection is timely filed and served, the court shall apply
   75  the rules of evidence in determining the reports’ admissibility.
   76  For good cause shown, the court may extend the time to file and
   77  serve the written objection. Only the alleged incapacitated
   78  person and the petitioner are entitled to object to the
   79  admissibility of the reports, unless the court provides
   80  otherwise.
   81         (5) ADJUDICATORY HEARING.—
   82         (a) Upon appointment of the examining committee, the court
   83  shall set the date upon which the petition will be heard. The
   84  date for the adjudicatory hearing must be conducted at least 10
   85  days, but no more than 30 days, after the filing of the last
   86  filed report of the examining committee members set no more than
   87  14 days after the filing of the reports of the examining
   88  committee members, unless good cause is shown. The adjudicatory
   89  hearing must be conducted at the time and place specified in the
   90  notice of hearing and in a manner consistent with due process.
   91         Section 2. Section 744.3725, Florida Statutes, is amended
   92  to read:
   93         744.3725 Procedure for extraordinary authority.—Before the
   94  court may grant authority to a guardian to exercise any of the
   95  rights specified in s. 744.3215(4), the court must:
   96         (1) Appoint an independent attorney to act on the
   97  incapacitated person’s behalf, and the attorney must have the
   98  opportunity to meet with the person and to present evidence and
   99  cross-examine witnesses at any hearing on the petition for
  100  authority to act;
  101         (2) Receive as evidence independent medical, psychological,
  102  and social evaluations with respect to the incapacitated person
  103  by competent professionals or appoint its own experts to assist
  104  in the evaluations;
  105         (3) Personally meet with the incapacitated person to obtain
  106  its own impression of the person’s capacity, so as to afford the
  107  incapacitated person the full opportunity to express his or her
  108  personal views or desires with respect to the judicial
  109  proceeding and issue before the court;
  110         (4) Find by clear and convincing evidence that the person
  111  lacks the capacity to make a decision about the issue before the
  112  court and that the incapacitated person’s capacity is not likely
  113  to change in the foreseeable future; and
  114         (5) Be persuaded by clear and convincing evidence that the
  115  authority being requested is in the best interests of the
  116  incapacitated person.; and
  117         (6) In the case of dissolution of marriage, find that the
  118  ward’s spouse has consented to the dissolution.
  120  The provisions of this section and s. 744.3215(4) are procedural
  121  and do not establish any new or independent right to or
  122  authority over the termination of parental rights, dissolution
  123  of marriage, sterilization, abortion, or the termination of life
  124  support systems.
  125         Section 3. Subsection (16) of section 744.441, Florida
  126  Statutes, is amended to read:
  127         744.441 Powers of guardian upon court approval.—After
  128  obtaining approval of the court pursuant to a petition for
  129  authorization to act, a plenary guardian of the property, or a
  130  limited guardian of the property within the powers granted by
  131  the order appointing the guardian or an approved annual or
  132  amended guardianship report, may:
  133         (16) Pay reasonable funeral, interment, and grave marker
  134  expenses for the ward from the ward’s estate, up to a maximum of
  135  $6,000.
  136         Section 4. For the purpose of incorporating the amendment
  137  made by this act to section 744.3725, Florida Statutes, in a
  138  reference thereto, subsection (4) of section 744.3215, Florida
  139  Statutes, is reenacted to read:
  140         744.3215 Rights of persons determined incapacitated.—
  141         (4) Without first obtaining specific authority from the
  142  court, as described in s. 744.3725, a guardian may not:
  143         (a) Commit the ward to a facility, institution, or licensed
  144  service provider without formal placement proceeding, pursuant
  145  to chapter 393, chapter 394, or chapter 397.
  146         (b) Consent on behalf of the ward to the performance on the
  147  ward of any experimental biomedical or behavioral procedure or
  148  to the participation by the ward in any biomedical or behavioral
  149  experiment. The court may permit such performance or
  150  participation only if:
  151         1. It is of direct benefit to, and is intended to preserve
  152  the life of or prevent serious impairment to the mental or
  153  physical health of the ward; or
  154         2. It is intended to assist the ward to develop or regain
  155  his or her abilities.
  156         (c) Initiate a petition for dissolution of marriage for the
  157  ward.
  158         (d) Consent on behalf of the ward to termination of the
  159  ward’s parental rights.
  160         (e) Consent on behalf of the ward to the performance of a
  161  sterilization or abortion procedure on the ward.
  162         Section 5. This act shall take effect July 1, 2017.