Florida Senate - 2017                       CS for CS for SB 172
       By the Committees on Judiciary; and Children, Families, and
       Elder Affairs; and Senators Passidomo, Mayfield, and Powell
       590-02446-17                                           2017172c2
    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 a person’s incapacity, to file
    5         his or her report with the clerk of the court within a
    6         specified timeframe after appointment; requiring the
    7         clerk of the court to serve each report on specified
    8         persons within a specified timeframe; requiring the
    9         clerk of the court to file a certificate of service in
   10         the incapacity proceeding; revising the timeframe
   11         within which specified parties must be served with all
   12         reports; authorizing parties to agree to waive the
   13         timeframe; authorizing the petitioner or the alleged
   14         incapacitated person to move for a continuance if
   15         service is not timely carried out 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 timeframe
   24         within which a guardian has to file a required annual
   25         guardianship plan with the court if the court does not
   26         require filing on a calendar-year basis; decreasing
   27         the timeframe within which a guardian has to file a
   28         required annual guardianship plan with the court if
   29         the court requires calendar-year filing; amending s.
   30         744.3725, F.S.; removing the requirement that a court
   31         first find that a ward’s spouse has consented to
   32         dissolution of marriage before the court may authorize
   33         a guardian to exercise specified rights; amending s.
   34         744.441, F.S.; removing the cap on funeral expenses
   35         that may be paid from a ward’s estate; reenacting s.
   36         744.3215(4), F.S., relating to the rights of persons
   37         determined incapacitated, to incorporate the amendment
   38         made to s. 744.3725, F.S., in a reference thereto;
   39         providing an 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 and the attorney for the alleged incapacitated person
   63  by electronic mail delivery or United States mail and, upon
   64  service, shall file a certificate of service in the incapacity
   65  proceeding. The petitioner and the attorney for the alleged
   66  incapacitated person must be served with all reports at least 10
   67  days before the hearing on the petition, unless the reports are
   68  not complete, in which case the petitioner and the attorney for
   69  the alleged incapacitated person may waive the 10-day
   70  requirement and consent to the consideration of the reports by
   71  the court at the adjudicatory hearing. If such service is not
   72  timely carried out, the petitioner or the alleged incapacitated
   73  person may move for a continuance of the hearing A copy of each
   74  committee member’s report must be served on the petitioner and
   75  on the attorney for the alleged incapacitated person within 3
   76  days after the report is filed and at least 5 days before the
   77  hearing on the petition.
   78         (i)The petitioner and the alleged incapacitated person may
   79  object to the introduction into evidence of all or any portion
   80  of the examining committee members’ reports by filing and
   81  serving a written objection on the other party no later than 5
   82  days before the adjudicatory hearing. The objection must state
   83  the basis upon which the challenge to admissibility is made. If
   84  an objection is timely filed and served, the court shall apply
   85  the rules of evidence in determining the reports’ admissibility.
   86  For good cause shown, the court may extend the time to file and
   87  to serve the written objection.
   88         (5) ADJUDICATORY HEARING.—
   89         (a) Upon appointment of the examining committee, the court
   90  shall set the date upon which the petition will be heard. The
   91  date for the adjudicatory hearing must be conducted at least 10
   92  days, which time period may be waived, but no more than 30 days,
   93  after the filing of the last filed report of the examining
   94  committee members set no more than 14 days after the filing of
   95  the reports of the examining committee members, unless good
   96  cause is shown. The adjudicatory hearing must be conducted at
   97  the time and place specified in the notice of hearing and in a
   98  manner consistent with due process.
   99         Section 2. Subsection (1) of section 744.367, Florida
  100  Statutes, is amended to read:
  101         744.367 Duty to file annual guardianship report.—
  102         (1) Unless the court requires filing on a calendar-year
  103  basis, each guardian of the person shall file with the court an
  104  annual guardianship plan within 90 days after at least 60 days,
  105  but no more than 90 days, before the last day of the anniversary
  106  month that the letters of guardianship were signed, and the plan
  107  must cover the coming fiscal year, ending on the last day in
  108  such anniversary month. If the court requires calendar-year
  109  filing, the guardianship plan for the forthcoming calendar year
  110  must be filed on or before April 1 of each year. The latest
  111  annual guardianship plan approved by the court will remain in
  112  effect until the court approves a subsequent plan after
  113  September 1 but no later than December 1 of the current year.
  114         Section 3. Section 744.3725, Florida Statutes, is amended
  115  to read:
  116         744.3725 Procedure for extraordinary authority.—Before the
  117  court may grant authority to a guardian to exercise any of the
  118  rights specified in s. 744.3215(4), the court must:
  119         (1) Appoint an independent attorney to act on the
  120  incapacitated person’s behalf, and the attorney must have the
  121  opportunity to meet with the person and to present evidence and
  122  cross-examine witnesses at any hearing on the petition for
  123  authority to act;
  124         (2) Receive as evidence independent medical, psychological,
  125  and social evaluations with respect to the incapacitated person
  126  by competent professionals or appoint its own experts to assist
  127  in the evaluations;
  128         (3) Personally meet with the incapacitated person to obtain
  129  its own impression of the person’s capacity, so as to afford the
  130  incapacitated person the full opportunity to express his or her
  131  personal views or desires with respect to the judicial
  132  proceeding and issue before the court;
  133         (4) Find by clear and convincing evidence that the person
  134  lacks the capacity to make a decision about the issue before the
  135  court and that the incapacitated person’s capacity is not likely
  136  to change in the foreseeable future; and
  137         (5) Be persuaded by clear and convincing evidence that the
  138  authority being requested is in the best interests of the
  139  incapacitated person.; and
  140         (6) In the case of dissolution of marriage, find that the
  141  ward’s spouse has consented to the dissolution.
  143  The provisions of this section and s. 744.3215(4) are procedural
  144  and do not establish any new or independent right to or
  145  authority over the termination of parental rights, dissolution
  146  of marriage, sterilization, abortion, or the termination of life
  147  support systems.
  148         Section 4. Subsection (16) of section 744.441, Florida
  149  Statutes, is amended to read:
  150         744.441 Powers of guardian upon court approval.—After
  151  obtaining approval of the court pursuant to a petition for
  152  authorization to act, a plenary guardian of the property, or a
  153  limited guardian of the property within the powers granted by
  154  the order appointing the guardian or an approved annual or
  155  amended guardianship report, may:
  156         (16) Pay reasonable funeral, interment, and grave marker
  157  expenses for the ward from the ward’s estate, up to a maximum of
  158  $6,000.
  159         Section 5. For the purpose of incorporating the amendment
  160  made by this act to section 744.3725, Florida Statutes, in a
  161  reference thereto, subsection (4) of section 744.3215, Florida
  162  Statutes, is reenacted to read:
  163         744.3215 Rights of persons determined incapacitated.—
  164         (4) Without first obtaining specific authority from the
  165  court, as described in s. 744.3725, a guardian may not:
  166         (a) Commit the ward to a facility, institution, or licensed
  167  service provider without formal placement proceeding, pursuant
  168  to chapter 393, chapter 394, or chapter 397.
  169         (b) Consent on behalf of the ward to the performance on the
  170  ward of any experimental biomedical or behavioral procedure or
  171  to the participation by the ward in any biomedical or behavioral
  172  experiment. The court may permit such performance or
  173  participation only if:
  174         1. It is of direct benefit to, and is intended to preserve
  175  the life of or prevent serious impairment to the mental or
  176  physical health of the ward; or
  177         2. It is intended to assist the ward to develop or regain
  178  his or her abilities.
  179         (c) Initiate a petition for dissolution of marriage for the
  180  ward.
  181         (d) Consent on behalf of the ward to termination of the
  182  ward’s parental rights.
  183         (e) Consent on behalf of the ward to the performance of a
  184  sterilization or abortion procedure on the ward.
  185         Section 6. This act shall take effect July 1, 2017.