Florida Senate - 2020                              CS for SB 994
       By the Committee on Judiciary; and Senators Passidomo, Stewart,
       and Thurston
       590-02762-20                                           2020994c1
    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; requiring the court to make a
    8         determination within a specified timeframe after the
    9         filing of a certain petition; amending s. 744.334,
   10         F.S.; revising requirements for a petition for the
   11         appointment of a guardian; defining the term
   12         “alternatives to guardianship”; prohibiting
   13         professional guardians from petitioning for their own
   14         appointment except under certain circumstances;
   15         defining the term “relative”; providing that a
   16         specified provision does not apply to public guardians
   17         under specified circumstances; amending s. 744.363,
   18         F.S.; expanding requirements for initial guardianship
   19         plans; amending s. 744.367, F.S.; expanding
   20         requirements for annual guardianship reports; defining
   21         the term “remuneration”; amending s. 744.3675, F.S.;
   22         expanding requirements for annual guardianship plans;
   23         amending s. 744.446, F.S.; prohibiting guardians from
   24         taking certain actions on behalf of an alleged
   25         incapacitated person or minor; revising provisions
   26         relating to conflicts of interest; providing an
   27         effective date.
   29  Be It Enacted by the Legislature of the State of Florida:
   31         Section 1. Paragraph (e) is added to subsection (3) of
   32  section 744.312, Florida Statutes, and subsection (1) of that
   33  section is republished, to read:
   34         744.312 Considerations in appointment of guardian.—
   35         (1) If the person designated is qualified to serve pursuant
   36  to s. 744.309, the court shall appoint any standby guardian or
   37  preneed guardian, unless the court determines that appointing
   38  such person is contrary to the best interests of the ward.
   39         (3) The court shall also:
   40         (e)Inquire into and consider potential disqualifications
   41  under s. 744.309 and potential conflicts of interest under s.
   42  744.446.
   43         Section 2. Paragraph (f) is added to subsection (4) of
   44  section 744.3215, Florida Statutes, and paragraph (e) of
   45  subsection (1) of that section is republished, to read:
   46         744.3215 Rights of persons determined incapacitated.—
   47         (1) A person who has been determined to be incapacitated
   48  retains the right:
   49         (e) To have a qualified guardian.
   50         (4) Without first obtaining specific authority from the
   51  court, as described in s. 744.3725, a guardian may not:
   52         (f)Consent to or sign on behalf of the ward an order not
   53  to resuscitate executed under s. 401.45(3). The court must make
   54  such a determination within 72 hours after the filing of a
   55  verified petition stating:
   56         1.The petitioner’s interest in the proceeding;
   57         2.The specific authority requested; and
   58         3.The facts constituting the basis for the relief sought
   59  and that the authority being requested is in the best interest
   60  of the ward.
   61         Section 3. Section 744.334, Florida Statutes, is amended to
   62  read:
   63         744.334 Petition for appointment of guardian or
   64  professional guardian; contents.—
   65         (1) Every petition for the appointment of a guardian shall
   66  be verified by the petitioner and shall contain statements, to
   67  the best of petitioner’s knowledge and belief, showing the name,
   68  age, residence, and post office address of the alleged
   69  incapacitated person or minor; the nature of her or his
   70  incapacity, if any; the extent of guardianship desired, either
   71  plenary or limited; the residence and post office address of the
   72  petitioner; the names and addresses of the next of kin of the
   73  alleged incapacitated person or minor, if known to the
   74  petitioner; the name of the proposed guardian and the reasons
   75  why she or he should be appointed guardian; whether the proposed
   76  guardian is a professional guardian; the relationship and
   77  previous relationship of the proposed guardian to the alleged
   78  incapacitated person or minor ward; any other type of
   79  guardianship under part III of this chapter or alternatives to
   80  guardianship that the alleged incapacitated person or minor has
   81  designated or is in currently or has been in previously; the
   82  reasons why a guardian advocate under s. 744.3085 or other
   83  alternatives to guardianship are insufficient to meet the needs
   84  of the alleged incapacitated person or minor; and the nature and
   85  value of property subject to the guardianship; and the reasons
   86  why this person should be appointed guardian. The petition must
   87  state whether If a willing and qualified guardian cannot be
   88  located, the petition must so state. As used in this subsection,
   89  the term “alternatives to guardianship” means an advance
   90  directive as defined in s. 765.101, a durable power of attorney
   91  as provided in chapter 709, a representative payee under 42
   92  U.S.C. s. 1007, or a trust instrument as defined in s. 736.0103.
   93         (2) If the petitioner is a professional guardian, she or he
   94  may not petition for her or his own appointment unless the
   95  petitioner is a relative of the alleged incapacitated person or
   96  minor. For purposes of this subsection, the term “relative”
   97  means an individual who would qualify to serve as a nonresident
   98  guardian under s. 744.309(2). This subsection does not apply to
   99  a public guardian appointed under s. 744.2006 who seeks
  100  appointment as a guardian of a person of limited financial means
  101  and whose compensation as guardian for such person would be paid
  102  from the Office of Public and Professional Guardians or any
  103  local government The petition for appointment of a professional
  104  guardian must comply with the provisions of subsection (1), and
  105  must state that the petitioner is a professional guardian.
  106         Section 4. Subsection (1) of section 744.363, Florida
  107  Statutes, is amended to read:
  108         744.363 Initial guardianship plan.—
  109         (1) The initial guardianship plan shall include all of the
  110  following:
  111         (a) The provision of medical, mental, or personal care
  112  services for the welfare of the ward.;
  113         (b) The provision of social and personal services for the
  114  welfare of the ward.;
  115         (c) The place and kind of residential setting best suited
  116  for the needs of the ward.;
  117         (d) The application of health and accident insurance and
  118  any other private or governmental benefits to which the ward may
  119  be entitled to meet any part of the costs of medical, mental
  120  health, or related services provided to the ward.; and
  121         (e) Any physical and mental examinations necessary to
  122  determine the ward’s medical and mental health treatment needs.
  123         (f)A list of any preexisting orders not to resuscitate
  124  executed under s. 401.45(3) or preexisting advance directives,
  125  as defined in s. 765.101, the date an order or directive was
  126  signed, whether such order or directive has been suspended by
  127  the court, and a description of the steps taken to identify and
  128  locate the preexisting order not to resuscitate or advance
  129  directive.
  130         Section 5. Subsection (3) of section 744.367, Florida
  131  Statutes, is amended to read:
  132         744.367 Duty to file annual guardianship report.—
  133         (3)(a) The annual guardianship report of a guardian of the
  134  property must consist of an annual accounting, and the annual
  135  guardianship report of a guardian of the person must consist of
  136  an annual guardianship plan. The annual guardianship report of a
  137  guardian of the property and the annual guardianship report of a
  138  guardian of the person must both include a declaration of all
  139  remuneration received by the guardian from any source for
  140  services rendered to or on behalf of the ward. As used in this
  141  paragraph, the term “remuneration” means any payment or other
  142  benefit made directly or indirectly, overtly or covertly, or in
  143  cash or in kind to the guardian.
  144         (b) The annual guardianship report must shall be served on
  145  the ward, unless the ward is a minor or is totally
  146  incapacitated, and on the attorney for the ward, if any. The
  147  guardian shall provide a copy to any other person as the court
  148  may direct.
  149         Section 6. Paragraph (d) is added to subsection (1) of
  150  section 744.3675, Florida Statutes, to read:
  151         744.3675 Annual guardianship plan.—Each guardian of the
  152  person must file with the court an annual guardianship plan
  153  which updates information about the condition of the ward. The
  154  annual plan must specify the current needs of the ward and how
  155  those needs are proposed to be met in the coming year.
  156         (1) Each plan for an adult ward must, if applicable,
  157  include:
  158         (d)A list of any preexisting orders not to resuscitate
  159  executed under s. 401.45(3) or preexisting advance directives,
  160  as defined in s. 765.101, the date an order or directive was
  161  signed, whether such order or directive has been suspended by
  162  the court, and a description of the steps taken to identify and
  163  locate the preexisting order not to resuscitate or advance
  164  directive.
  165         Section 7. Present subsections (2), (3), and (4) of section
  166  744.446, Florida Statutes, are redesignated as subsections (3),
  167  (4), and (5), respectively, a new subsection (2) is added to
  168  that section, and present subsection (2) of that section is
  169  amended, to read:
  170         744.446 Conflicts of interest; prohibited activities; court
  171  approval; breach of fiduciary duty.—
  172         (2)A guardian may not offer, pay, solicit, or receive a
  173  commission, benefit, bonus, rebate, or kickback, directly or
  174  indirectly, overtly or covertly, in cash or in kind, or engage
  175  in a split-fee arrangement in return for referring, soliciting,
  176  or engaging in a transaction for goods or services on behalf of
  177  an alleged incapacitated person or minor, or a ward, for past or
  178  future goods or services.
  179         (3)(2) Unless prior approval is obtained by court order, or
  180  unless such relationship existed before prior to appointment of
  181  the guardian and is disclosed to the court in the petition for
  182  appointment of guardian, a guardian may not:
  183         (a) Have any interest, financial or otherwise, direct or
  184  indirect, in any business transaction or activity with the ward,
  185  the judge presiding over the case, any member of the appointed
  186  examining committee, any court employee involved in the
  187  guardianship process, or the attorney for the ward;
  188         (b) Acquire an ownership, possessory, security, or other
  189  pecuniary interest adverse to the ward;
  190         (c) Be designated as a beneficiary on any life insurance
  191  policy, pension, or benefit plan of the ward unless such
  192  designation was validly made by the ward before prior to
  193  adjudication of incapacity of the ward; and
  194         (d) Directly or indirectly purchase, rent, lease, or sell
  195  any property or services from or to any business entity of which
  196  the guardian or the guardian’s spouse or any of the guardian’s
  197  lineal descendants, or collateral kindred, is an officer,
  198  partner, director, shareholder, or proprietor, or has any
  199  financial interest.
  200         Section 8. This act shall take effect July 1, 2020.