Florida Senate - 2017                              CS for SB 172
       By the Committee on Children, Families, and Elder Affairs; and
       Senator Passidomo
       586-01711-17                                           2017172c1
    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. 744.367, F.S.; increasing the time that a
   24         guardian has to file a required annual guardianship
   25         plan with the court if the court does not require
   26         filing on a calendar year basis; decreasing the time
   27         that a guardian has to file a required annual
   28         guardianship plan with the court if the court requires
   29         calendar-year filing; amending s. 744.3725, F.S.;
   30         eliminating the requirement that a court must first
   31         find that a ward’s spouse has consented to dissolution
   32         of marriage before the court may authorize a guardian
   33         to exercise specified rights; amending s. 744.441,
   34         F.S.; removing the cap on funeral expenses that may be
   35         paid from a ward’s estate; reenacting s. 744.3215(4),
   36         F.S., relating to the rights of persons determined
   37         incapacitated, to incorporate the amendment made to s.
   38         744.3725, F.S., in a reference thereto; providing an
   39         effective date.
   41  Be It Enacted by the Legislature of the State of Florida:
   43         Section 1. Paragraphs (e) and (h) of subsection (3) and
   44  paragraph (a) of subsection (5) of section 744.331, Florida
   45  Statutes, are amended, and paragraph (i) is added to subsection
   46  (3) of that section, to read:
   47         744.331 Procedures to determine incapacity.—
   48         (3) EXAMINING COMMITTEE.—
   49         (e) Each member of the examining committee shall examine
   50  the person. Each examining committee member must determine the
   51  alleged incapacitated person’s ability to exercise those rights
   52  specified in s. 744.3215. In addition to the examination, each
   53  examining committee member must have access to, and may
   54  consider, previous examinations of the person, including, but
   55  not limited to, habilitation plans, school records, and
   56  psychological and psychosocial reports voluntarily offered for
   57  use by the alleged incapacitated person. Each member of the
   58  examining committee must file his or her report with the clerk
   59  of the court submit a report within 15 days after appointment.
   60         (h) Within 3 days after receipt of each examining committee
   61  member’s report, the clerk shall serve the report on the
   62  petitioner’s counsel and the attorney for the alleged
   63  incapacitated person, by electronic mail delivery or U.S. mail,
   64  and, upon service, shall file a certificate of service in the
   65  incapacity proceeding. The petitioner’s counsel and the attorney
   66  for the alleged incapacitated person must be served with all
   67  reports at least 10 days before the hearing on the petition. If
   68  such service is not timely effectuated, the petitioner or the
   69  alleged incapacitated person may move for a continuance of the
   70  hearing A copy of each committee member’s report must be served
   71  on the petitioner and on the attorney for the alleged
   72  incapacitated person within 3 days after the report is filed and
   73  at least 5 days before the hearing on the petition.
   74         (i) The petitioner and the alleged incapacitated person may
   75  object to the introduction into evidence of all or any portion
   76  of the examining committee members’ reports by filing and
   77  serving a written objection on the other party no later than 5
   78  days before the adjudicatory hearing. The objection must state
   79  the basis upon which the challenge to admissibility is made. If
   80  an objection is timely filed and served, the court shall apply
   81  the rules of evidence in determining the reports’ admissibility.
   82  For good cause shown, the court may extend the time to file and
   83  serve the written objection. Only the alleged incapacitated
   84  person and the petitioner are entitled to object to the
   85  admissibility of the reports, unless the court provides
   86  otherwise.
   87         (5) ADJUDICATORY HEARING.—
   88         (a) Upon appointment of the examining committee, the court
   89  shall set the date upon which the petition will be heard. The
   90  date for the adjudicatory hearing must be conducted at least 10
   91  days, but no more than 30 days, after the filing of the last
   92  filed report of the examining committee members set no more than
   93  14 days after the filing of the reports of the examining
   94  committee members, unless good cause is shown. The adjudicatory
   95  hearing must be conducted at the time and place specified in the
   96  notice of hearing and in a manner consistent with due process.
   97         Section 2. Subsection (1) of section 744.367, Florida
   98  Statutes, is amended to read:
   99         744.367 Duty to file annual guardianship report.—
  100         (1) Unless the court requires filing on a calendar-year
  101  basis, each guardian of the person shall file with the court an
  102  annual guardianship plan within 90 days after at least 60 days,
  103  but no more than 90 days, before the last day of the anniversary
  104  month that the letters of guardianship were signed, and the plan
  105  must cover the coming fiscal year, ending on the last day in
  106  such anniversary month. If the court requires calendar-year
  107  filing, the guardianship plan for the forthcoming calendar year
  108  must be filed on or before April 1 of each year. The latest
  109  annual guardianship plan approved by the court will remain in
  110  effect until the court approves a subsequent plan after
  111  September 1 but no later than December 1 of the current year.
  112         Section 3. Section 744.3725, Florida Statutes, is amended
  113  to read:
  114         744.3725 Procedure for extraordinary authority.—Before the
  115  court may grant authority to a guardian to exercise any of the
  116  rights specified in s. 744.3215(4), the court must:
  117         (1) Appoint an independent attorney to act on the
  118  incapacitated person’s behalf, and the attorney must have the
  119  opportunity to meet with the person and to present evidence and
  120  cross-examine witnesses at any hearing on the petition for
  121  authority to act;
  122         (2) Receive as evidence independent medical, psychological,
  123  and social evaluations with respect to the incapacitated person
  124  by competent professionals or appoint its own experts to assist
  125  in the evaluations;
  126         (3) Personally meet with the incapacitated person to obtain
  127  its own impression of the person’s capacity, so as to afford the
  128  incapacitated person the full opportunity to express his or her
  129  personal views or desires with respect to the judicial
  130  proceeding and issue before the court;
  131         (4) Find by clear and convincing evidence that the person
  132  lacks the capacity to make a decision about the issue before the
  133  court and that the incapacitated person’s capacity is not likely
  134  to change in the foreseeable future; and
  135         (5) Be persuaded by clear and convincing evidence that the
  136  authority being requested is in the best interests of the
  137  incapacitated person.; and
  138         (6) In the case of dissolution of marriage, find that the
  139  ward’s spouse has consented to the dissolution.
  141  The provisions of this section and s. 744.3215(4) are procedural
  142  and do not establish any new or independent right to or
  143  authority over the termination of parental rights, dissolution
  144  of marriage, sterilization, abortion, or the termination of life
  145  support systems.
  146         Section 4. Subsection (16) of section 744.441, Florida
  147  Statutes, is amended to read:
  148         744.441 Powers of guardian upon court approval.—After
  149  obtaining approval of the court pursuant to a petition for
  150  authorization to act, a plenary guardian of the property, or a
  151  limited guardian of the property within the powers granted by
  152  the order appointing the guardian or an approved annual or
  153  amended guardianship report, may:
  154         (16) Pay reasonable funeral, interment, and grave marker
  155  expenses for the ward from the ward’s estate, up to a maximum of
  156  $6,000.
  157         Section 5. For the purpose of incorporating the amendment
  158  made by this act to section 744.3725, Florida Statutes, in a
  159  reference thereto, subsection (4) of section 744.3215, Florida
  160  Statutes, is reenacted to read:
  161         744.3215 Rights of persons determined incapacitated.—
  162         (4) Without first obtaining specific authority from the
  163  court, as described in s. 744.3725, a guardian may not:
  164         (a) Commit the ward to a facility, institution, or licensed
  165  service provider without formal placement proceeding, pursuant
  166  to chapter 393, chapter 394, or chapter 397.
  167         (b) Consent on behalf of the ward to the performance on the
  168  ward of any experimental biomedical or behavioral procedure or
  169  to the participation by the ward in any biomedical or behavioral
  170  experiment. The court may permit such performance or
  171  participation only if:
  172         1. It is of direct benefit to, and is intended to preserve
  173  the life of or prevent serious impairment to the mental or
  174  physical health of the ward; or
  175         2. It is intended to assist the ward to develop or regain
  176  his or her abilities.
  177         (c) Initiate a petition for dissolution of marriage for the
  178  ward.
  179         (d) Consent on behalf of the ward to termination of the
  180  ward’s parental rights.
  181         (e) Consent on behalf of the ward to the performance of a
  182  sterilization or abortion procedure on the ward.
  183         Section 6. This act shall take effect July 1, 2017.