Florida Senate - 2020                       CS for CS for SB 994
       By the Committees on Rules; and Judiciary; and Senators
       Passidomo, Stewart, and Thurston
       595-03555-20                                           2020994c2
    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. 744.334, F.S.;
    5         revising requirements for a petition for the
    6         appointment of a guardian; defining the term
    7         “alternatives to guardianship”; prohibiting
    8         professional guardians from petitioning for their own
    9         appointment except under certain circumstances;
   10         defining the term “relative”; providing that a
   11         specified provision does not apply to public guardians
   12         under specified circumstances; amending s. 744.363,
   13         F.S.; expanding requirements for initial guardianship
   14         plans; amending s. 744.367, F.S.; expanding
   15         requirements for annual guardianship reports; defining
   16         the term “remuneration”; amending s. 744.3675, F.S.;
   17         expanding requirements for annual guardianship plans;
   18         amending s. 744.441, F.S.; authorizing certain
   19         guardians to sign an order not to resuscitate;
   20         requiring the court to use specified procedures for
   21         expedited judicial intervention under certain
   22         circumstances; amending s. 744.446, F.S.; prohibiting
   23         guardians from taking certain actions on behalf of an
   24         alleged incapacitated person or minor; revising
   25         provisions relating to conflicts of interest;
   26         providing an effective date.
   28  Be It Enacted by the Legislature of the State of Florida:
   30         Section 1. Paragraph (e) is added to subsection (3) of
   31  section 744.312, Florida Statutes, and subsection (1) of that
   32  section is republished, to read:
   33         744.312 Considerations in appointment of guardian.—
   34         (1) If the person designated is qualified to serve pursuant
   35  to s. 744.309, the court shall appoint any standby guardian or
   36  preneed guardian, unless the court determines that appointing
   37  such person is contrary to the best interests of the ward.
   38         (3) The court shall also:
   39         (e)Inquire into and consider potential disqualifications
   40  under s. 744.309 and potential conflicts of interest under s.
   41  744.446.
   42         Section 2. Section 744.334, Florida Statutes, is amended to
   43  read:
   44         744.334 Petition for appointment of guardian or
   45  professional guardian; contents.—
   46         (1) Every petition for the appointment of a guardian shall
   47  be verified by the petitioner and shall contain statements, to
   48  the best of petitioner’s knowledge and belief, showing the name,
   49  age, residence, and post office address of the alleged
   50  incapacitated person or minor; the nature of her or his
   51  incapacity, if any; the extent of guardianship desired, either
   52  plenary or limited; the residence and post office address of the
   53  petitioner; the names and addresses of the next of kin of the
   54  alleged incapacitated person or minor, if known to the
   55  petitioner; the name of the proposed guardian and the reasons
   56  why she or he should be appointed guardian; whether the proposed
   57  guardian is a professional guardian; the relationship and
   58  previous relationship of the proposed guardian to the alleged
   59  incapacitated person or minor ward; any other type of
   60  guardianship under part III of this chapter or alternatives to
   61  guardianship that the alleged incapacitated person or minor has
   62  designated or is in currently or has been in previously; the
   63  reasons why a guardian advocate under s. 744.3085 or other
   64  alternatives to guardianship are insufficient to meet the needs
   65  of the alleged incapacitated person or minor; and the nature and
   66  value of property subject to the guardianship; and the reasons
   67  why this person should be appointed guardian. The petition must
   68  state whether If a willing and qualified guardian cannot be
   69  located, the petition must so state. As used in this subsection,
   70  the term “alternatives to guardianship” means an advance
   71  directive as defined in s. 765.101, a durable power of attorney
   72  as provided in chapter 709, a representative payee under 42
   73  U.S.C. s. 1007, or a trust instrument as defined in s. 736.0103.
   74         (2) If the petitioner is a professional guardian, she or he
   75  may not petition for her or his own appointment unless the
   76  petitioner is a relative of the alleged incapacitated person or
   77  minor. For purposes of this subsection, the term “relative”
   78  means an individual who would qualify to serve as a nonresident
   79  guardian under s. 744.309(2). This subsection does not apply to
   80  a public guardian appointed under s. 744.2006 who seeks
   81  appointment as a guardian of a person of limited financial means
   82  and whose compensation as guardian for such person would be paid
   83  from the Office of Public and Professional Guardians or any
   84  local government The petition for appointment of a professional
   85  guardian must comply with the provisions of subsection (1), and
   86  must state that the petitioner is a professional guardian.
   87         Section 3. Subsection (1) of section 744.363, Florida
   88  Statutes, is amended to read:
   89         744.363 Initial guardianship plan.—
   90         (1) The initial guardianship plan shall include all of the
   91  following:
   92         (a) The provision of medical, mental, or personal care
   93  services for the welfare of the ward.;
   94         (b) The provision of social and personal services for the
   95  welfare of the ward.;
   96         (c) The place and kind of residential setting best suited
   97  for the needs of the ward.;
   98         (d) The application of health and accident insurance and
   99  any other private or governmental benefits to which the ward may
  100  be entitled to meet any part of the costs of medical, mental
  101  health, or related services provided to the ward.; and
  102         (e) Any physical and mental examinations necessary to
  103  determine the ward’s medical and mental health treatment needs.
  104         (f)A list of any preexisting orders not to resuscitate
  105  executed under s. 401.45(3) or preexisting advance directives,
  106  as defined in s. 765.101, the date an order or directive was
  107  signed, whether such order or directive has been suspended by
  108  the court, and a description of the steps taken to identify and
  109  locate the preexisting order not to resuscitate or advance
  110  directive.
  111         Section 4. Subsection (3) of section 744.367, Florida
  112  Statutes, is amended to read:
  113         744.367 Duty to file annual guardianship report.—
  114         (3)(a) The annual guardianship report of a guardian of the
  115  property must consist of an annual accounting, and the annual
  116  guardianship report of a guardian of the person must consist of
  117  an annual guardianship plan. The annual guardianship report of a
  118  guardian of the property and the annual guardianship report of a
  119  guardian of the person must both include a declaration of all
  120  remuneration received by the guardian from any source for
  121  services rendered to or on behalf of the ward. As used in this
  122  paragraph, the term “remuneration” means any payment or other
  123  benefit made directly or indirectly, overtly or covertly, or in
  124  cash or in kind to the guardian.
  125         (b) The annual guardianship report must shall be served on
  126  the ward, unless the ward is a minor or is totally
  127  incapacitated, and on the attorney for the ward, if any. The
  128  guardian shall provide a copy to any other person as the court
  129  may direct.
  130         Section 5. Paragraph (d) is added to subsection (1) of
  131  section 744.3675, Florida Statutes, to read:
  132         744.3675 Annual guardianship plan.—Each guardian of the
  133  person must file with the court an annual guardianship plan
  134  which updates information about the condition of the ward. The
  135  annual plan must specify the current needs of the ward and how
  136  those needs are proposed to be met in the coming year.
  137         (1) Each plan for an adult ward must, if applicable,
  138  include:
  139         (d)A list of any preexisting orders not to resuscitate
  140  executed under s. 401.45(3) or preexisting advance directives,
  141  as defined in s. 765.101, the date an order or directive was
  142  signed, whether such order or directive has been suspended by
  143  the court, and a description of the steps taken to identify and
  144  locate the preexisting order not to resuscitate or advance
  145  directive.
  146         Section 6. Section 744.441, Florida Statutes, is amended to
  147  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:,
  151         (1) A plenary guardian of the property, or a limited
  152  guardian of the property within the powers granted by the order
  153  appointing the guardian or an approved annual or amended
  154  guardianship report, may:
  155         (a)(1) Perform, compromise, or refuse performance of a
  156  ward’s contracts that continue as obligations of the estate, as
  157  he or she may determine under the circumstances.
  158         (b)(2) Execute, exercise, or release any powers as trustee,
  159  personal representative, custodian for minors, conservator, or
  160  donee of any power of appointment or other power that the ward
  161  might have lawfully exercised, consummated, or executed if not
  162  incapacitated, if the best interest of the ward requires such
  163  execution, exercise, or release.
  164         (c)(3) Make ordinary or extraordinary repairs or
  165  alterations in buildings or other structures; demolish any
  166  improvements; or raze existing, or erect new, party walls or
  167  buildings.
  168         (d)(4) Subdivide, develop, or dedicate land to public use;
  169  make or obtain the vacation of plats and adjust boundaries;
  170  adjust differences in valuation on exchange or partition by
  171  giving or receiving consideration; or dedicate easements to
  172  public use without consideration.
  173         (e)(5) Enter into a lease as lessor or lessee for any
  174  purpose, with or without option to purchase or renew, for a term
  175  within, or extending beyond, the period of guardianship.
  176         (f)(6) Enter into a lease or arrangement for exploration
  177  and removal of minerals or other natural resources or enter into
  178  a pooling or unitization agreement.
  179         (g)(7) Abandon property when, in the opinion of the
  180  guardian, it is valueless or is so encumbered or in such
  181  condition that it is of no benefit to the estate.
  182         (h)(8) Pay calls, assessments, and other sums chargeable or
  183  accruing against, or on account of, securities.
  184         (i)(9) Borrow money, with or without security, to be repaid
  185  from the property or otherwise and advance money for the
  186  protection of the estate.
  187         (j)(10) Effect a fair and reasonable compromise with any
  188  debtor or obligor or extend, renew, or in any manner modify the
  189  terms of any obligation owing to the estate.
  190         (k)(11) Prosecute or defend claims or proceedings in any
  191  jurisdiction for the protection of the estate and of the
  192  guardian in the performance of his or her duties. Before
  193  authorizing a guardian to bring an action described in s.
  194  736.0207, the court shall first find that the action appears to
  195  be in the ward’s best interests during the ward’s probable
  196  lifetime. There shall be a rebuttable presumption that an action
  197  challenging the ward’s revocation of all or part of a trust is
  198  not in the ward’s best interests if the revocation relates
  199  solely to a devise. This paragraph subsection does not preclude
  200  a challenge after the ward’s death. If the court denies a
  201  request that a guardian be authorized to bring an action
  202  described in s. 736.0207, the court shall review the continued
  203  need for a guardian and the extent of the need for delegation of
  204  the ward’s rights.
  205         (l)(12) Sell, mortgage, or lease any real or personal
  206  property of the estate, including homestead property, or any
  207  interest therein for cash or credit, or for part cash and part
  208  credit, and with or without security for unpaid balances.
  209         (m)(13) Continue any unincorporated business or venture in
  210  which the ward was engaged.
  211         (n)(14) Purchase the entire fee simple title to real estate
  212  in this state in which the guardian has no interest, but the
  213  purchase may be made only for a home for the ward, to protect
  214  the home of the ward or the ward’s interest, or as a home for
  215  the ward’s dependent family. If the ward is a married person and
  216  the home of the ward or of the dependent family of the ward is
  217  owned by the ward and spouse as an estate by the entirety and
  218  the home is sold pursuant to the authority of paragraph (l)
  219  subsection (12), the court may authorize the investment of any
  220  part or all of the proceeds from the sale toward the purchase of
  221  a fee simple title to real estate in this state for a home for
  222  the ward or the dependent family of the ward as an estate by the
  223  entirety owned by the ward and spouse. If the guardian is
  224  authorized to acquire title to real estate for the ward or
  225  dependent family of the ward as an estate by the entirety in
  226  accordance with the preceding provisions, the conveyance shall
  227  be in the name of the ward and spouse and shall be effective to
  228  create an estate by the entirety in the ward and spouse.
  229         (o)(15) Exercise any option contained in any policy of
  230  insurance payable to, or inuring to the benefit of, the ward.
  231         (p)(16) Pay reasonable funeral, interment, and grave marker
  232  expenses for the ward from the ward’s estate.
  233         (q)(17) Make gifts of the ward’s property to members of the
  234  ward’s family in estate and income tax planning procedures.
  235         (r)(18) When the ward’s will evinces an objective to obtain
  236  a United States estate tax charitable deduction by use of a
  237  split interest trust (as that term is defined in s. 736.1201),
  238  but the maximum charitable deduction otherwise allowable will
  239  not be achieved in whole or in part, execute a codicil on the
  240  ward’s behalf amending said will to obtain the maximum
  241  charitable deduction allowable without diminishing the aggregate
  242  value of the benefits of any beneficiary under such will.
  243         (s)(19) Create or amend revocable trusts or create
  244  irrevocable trusts of property of the ward’s estate which may
  245  extend beyond the disability or life of the ward in connection
  246  with estate, gift, income, or other tax planning or in
  247  connection with estate planning. The court shall retain
  248  oversight of the assets transferred to a trust, unless otherwise
  249  ordered by the court.
  250         (t)(20) Renounce or disclaim any interest by testate or
  251  intestate succession or by inter vivos transfer.
  252         (u)(21) Enter into contracts that are appropriate for, and
  253  in the best interest of, the ward.
  254         (v)(22) As to a minor ward, pay expenses of the ward’s
  255  support, health, maintenance, and education, if the ward’s
  256  parents, or either of them, are alive.
  257         (2)A plenary guardian or a limited guardian of a ward may
  258  sign an order not to resuscitate as provided in s. 401.45(3).
  259  When a plenary guardian or a limited guardian of a ward seeks to
  260  obtain approval of the court to sign an order not to
  261  resuscitate, if required by exigent circumstances, the
  262  procedures for expedited judicial intervention under rule 5.900
  263  of the Florida Probate Rules apply, and the court must hold a
  264  preliminary hearing within 72 hours after the petition is filed.
  265         Section 7. Present subsections (2), (3), and (4) of section
  266  744.446, Florida Statutes, are redesignated as subsections (3),
  267  (4), and (5), respectively, a new subsection (2) is added to
  268  that section, and present subsection (2) of that section is
  269  amended, to read:
  270         744.446 Conflicts of interest; prohibited activities; court
  271  approval; breach of fiduciary duty.—
  272         (2)A guardian may not offer, pay, solicit, or receive a
  273  commission, benefit, bonus, rebate, or kickback, directly or
  274  indirectly, overtly or covertly, in cash or in kind, or engage
  275  in a split-fee arrangement in return for referring, soliciting,
  276  or engaging in a transaction for goods or services on behalf of
  277  an alleged incapacitated person or minor, or a ward, for past or
  278  future goods or services.
  279         (3)(2) Unless prior approval is obtained by court order, or
  280  unless such relationship existed before prior to appointment of
  281  the guardian and is disclosed to the court in the petition for
  282  appointment of guardian, a guardian may not:
  283         (a) Have any interest, financial or otherwise, direct or
  284  indirect, in any business transaction or activity with the ward,
  285  the judge presiding over the case, any member of the appointed
  286  examining committee, any court employee involved in the
  287  guardianship process, or the attorney for the ward;
  288         (b) Acquire an ownership, possessory, security, or other
  289  pecuniary interest adverse to the ward;
  290         (c) Be designated as a beneficiary on any life insurance
  291  policy, pension, or benefit plan of the ward unless such
  292  designation was validly made by the ward before prior to
  293  adjudication of incapacity of the ward; and
  294         (d) Directly or indirectly purchase, rent, lease, or sell
  295  any property or services from or to any business entity of which
  296  the guardian or the guardian’s spouse or any of the guardian’s
  297  lineal descendants, or collateral kindred, is an officer,
  298  partner, director, shareholder, or proprietor, or has any
  299  financial interest.
  300         Section 8. This act shall take effect July 1, 2020.