Florida Senate - 2020                                     SB 994
       By Senator Passidomo
       28-01346-20                                            2020994__
    1                        A bill to be entitled                      
    2         An act relating to guardianship; amending s. 744.312,
    3         F.S.; expanding factors for a court to consider when
    4         appointing a guardian; amending s. 744.3215, F.S.;
    5         prohibiting a guardian from consenting to or signing
    6         on behalf of a ward an order not to resuscitate
    7         without court approval; amending s. 744.334, F.S.;
    8         revising requirements for a petition for the
    9         appointment of a guardian; defining the term
   10         “alternatives to guardianship”; prohibiting
   11         professional guardians from petitioning for their own
   12         appointment except under certain circumstances;
   13         defining the term “relative”; amending s. 744.363,
   14         F.S.; expanding requirements for initial guardianship
   15         plans; amending s. 744.367, F.S.; expanding
   16         requirements for annual guardianship reports; defining
   17         the term “remuneration”; amending s. 744.3675, F.S.;
   18         expanding requirements for annual guardianship plans;
   19         amending s. 744.446, F.S.; prohibiting guardians from
   20         taking certain actions on behalf of an alleged
   21         incapacitated person or minor; revising provisions
   22         relating to conflicts of interest; providing an
   23         effective date.
   25  Be It Enacted by the Legislature of the State of Florida:
   27         Section 1. Paragraph (e) is added to subsection (3) of
   28  section 744.312, Florida Statutes, and subsection (1) of that
   29  section is republished, to read:
   30         744.312 Considerations in appointment of guardian.—
   31         (1) If the person designated is qualified to serve pursuant
   32  to s. 744.309, the court shall appoint any standby guardian or
   33  preneed guardian, unless the court determines that appointing
   34  such person is contrary to the best interests of the ward.
   35         (3) The court shall also:
   36         (e)Inquire into and consider potential disqualifications
   37  under s. 744.309 and potential conflicts of interest under s.
   38  744.446.
   39         Section 2. Paragraph (f) is added to subsection (4) of
   40  section 744.3215, Florida Statutes, and paragraph (e) of
   41  subsection (1) of that section is republished, to read:
   42         744.3215 Rights of persons determined incapacitated.—
   43         (1) A person who has been determined to be incapacitated
   44  retains the right:
   45         (e) To have a qualified guardian.
   46         (4) Without first obtaining specific authority from the
   47  court, as described in s. 744.3725, a guardian may not:
   48         (f)Consent to or sign on behalf of the ward an order not
   49  to resuscitate executed under s. 401.45(3).
   50         Section 3. Section 744.334, Florida Statutes, is amended to
   51  read:
   52         744.334 Petition for appointment of guardian or
   53  professional guardian; contents.—
   54         (1) Every petition for the appointment of a guardian shall
   55  be verified by the petitioner and shall contain statements, to
   56  the best of petitioner’s knowledge and belief, showing the name,
   57  age, residence, and post office address of the alleged
   58  incapacitated person or minor; the nature of her or his
   59  incapacity, if any; the extent of guardianship desired, either
   60  plenary or limited; the residence and post office address of the
   61  petitioner; the names and addresses of the next of kin of the
   62  alleged incapacitated person or minor, if known to the
   63  petitioner; the name of the proposed guardian and the reasons
   64  why she or he should be appointed guardian; whether the proposed
   65  guardian is a professional guardian; the relationship and
   66  previous relationship of the proposed guardian to the alleged
   67  incapacitated person or minor ward; any other type of
   68  guardianship under part III of this chapter or alternatives to
   69  guardianship that the alleged incapacitated person or minor has
   70  designated or is in currently or has been in previously; the
   71  reasons why a guardian advocate under s. 744.3085 or other
   72  alternatives to guardianship are insufficient to meet the needs
   73  of the alleged incapacitated person or minor; and the nature and
   74  value of property subject to the guardianship; and the reasons
   75  why this person should be appointed guardian. The petition must
   76  state whether If a willing and qualified guardian cannot be
   77  located, the petition must so state. As used in this subsection,
   78  the term “alternatives to guardianship” means an advance
   79  directive as defined in s. 765.101, a durable power of attorney
   80  as provided in chapter 709, a representative payee under 42
   81  U.S.C. s. 1007, or a trust instrument as defined in s. 736.0103.
   82         (2) If the petitioner is a professional guardian, she or he
   83  may not petition for her or his own appointment unless the
   84  petitioner is a relative of the alleged incapacitated person or
   85  minor. For purposes of this subsection, the term “relative”
   86  means an individual who would qualify to serve as a nonresident
   87  guardian under s. 744.309(2) The petition for appointment of a
   88  professional guardian must comply with the provisions of
   89  subsection (1), and must state that the petitioner is a
   90  professional guardian.
   91         Section 4. Subsection (1) of section 744.363, Florida
   92  Statutes, is amended to read:
   93         744.363 Initial guardianship plan.—
   94         (1) The initial guardianship plan shall include all of the
   95  following:
   96         (a) The provision of medical, mental, or personal care
   97  services for the welfare of the ward.;
   98         (b) The provision of social and personal services for the
   99  welfare of the ward.;
  100         (c) The place and kind of residential setting best suited
  101  for the needs of the ward.;
  102         (d) The application of health and accident insurance and
  103  any other private or governmental benefits to which the ward may
  104  be entitled to meet any part of the costs of medical, mental
  105  health, or related services provided to the ward.; and
  106         (e) Any physical and mental examinations necessary to
  107  determine the ward’s medical and mental health treatment needs.
  108         (f)A list of any preexisting orders not to resuscitate
  109  executed under s. 401.45(3) or preexisting advance directives,
  110  as defined in s. 765.101, the date an order or directive was
  111  signed, whether such order or directive has been suspended by
  112  the court, and a description of the steps taken to identify and
  113  locate the preexisting order not to resuscitate or advance
  114  directive.
  115         Section 5. Subsection (3) of section 744.367, Florida
  116  Statutes, is amended to read:
  117         744.367 Duty to file annual guardianship report.—
  118         (3)(a) The annual guardianship report of a guardian of the
  119  property must consist of an annual accounting, and the annual
  120  guardianship report of a guardian of the person must consist of
  121  an annual guardianship plan. The annual guardianship report of a
  122  guardian of the property and the annual guardianship report of a
  123  guardian of the person must both include a declaration of all
  124  remuneration received by the guardian from any source for
  125  services rendered to or on behalf of the ward. As used in this
  126  paragraph, the term “remuneration” means any payment or other
  127  benefit made directly or indirectly, overtly or covertly, or in
  128  cash or in kind to the guardian.
  129         (b) The annual guardianship report must shall be served on
  130  the ward, unless the ward is a minor or is totally
  131  incapacitated, and on the attorney for the ward, if any. The
  132  guardian shall provide a copy to any other person as the court
  133  may direct.
  134         Section 6. Paragraph (d) is added to subsection (1) of
  135  section 744.3675, Florida Statutes, to read:
  136         744.3675 Annual guardianship plan.—Each guardian of the
  137  person must file with the court an annual guardianship plan
  138  which updates information about the condition of the ward. The
  139  annual plan must specify the current needs of the ward and how
  140  those needs are proposed to be met in the coming year.
  141         (1) Each plan for an adult ward must, if applicable,
  142  include:
  143         (d)A list of any preexisting orders not to resuscitate
  144  executed under s. 401.45(3) or preexisting advance directives,
  145  as defined in s. 765.101, the date an order or directive was
  146  signed, whether such order or directive has been suspended by
  147  the court, and a description of the steps taken to identify and
  148  locate the preexisting order not to resuscitate or advance
  149  directive.
  150         Section 7. Present subsections (2), (3), and (4) of section
  151  744.446, Florida Statutes, are redesignated as subsections (3),
  152  (4), and (5), respectively, a new subsection (2) is added to
  153  that section, and present subsection (2) of that section is
  154  amended, to read:
  155         744.446 Conflicts of interest; prohibited activities; court
  156  approval; breach of fiduciary duty.—
  157         (2)A guardian may not offer, pay, solicit, or receive a
  158  commission, benefit, bonus, rebate, or kickback, directly or
  159  indirectly, overtly or covertly, in cash or in kind, or engage
  160  in a split-fee arrangement in return for referring, soliciting,
  161  or engaging in a transaction for goods or services on behalf of
  162  an alleged incapacitated person or minor, or a ward, for past or
  163  future goods or services.
  164         (3)(2) Unless prior approval is obtained by court order, or
  165  unless such relationship existed before prior to appointment of
  166  the guardian and is disclosed to the court in the petition for
  167  appointment of guardian, a guardian may not:
  168         (a) Have any interest, financial or otherwise, direct or
  169  indirect, in any business transaction or activity with the ward,
  170  the judge presiding over the case, any member of the appointed
  171  examining committee, any court employee involved in the
  172  guardianship process, or the attorney for the ward;
  173         (b) Acquire an ownership, possessory, security, or other
  174  pecuniary interest adverse to the ward;
  175         (c) Be designated as a beneficiary on any life insurance
  176  policy, pension, or benefit plan of the ward unless such
  177  designation was validly made by the ward before prior to
  178  adjudication of incapacity of the ward; and
  179         (d) Directly or indirectly purchase, rent, lease, or sell
  180  any property or services from or to any business entity of which
  181  the guardian or the guardian’s spouse or any of the guardian’s
  182  lineal descendants, or collateral kindred, is an officer,
  183  partner, director, shareholder, or proprietor, or has any
  184  financial interest.
  185         Section 8. This act shall take effect July 1, 2020.