Florida Senate - 2021                                     SB 368
       By Senator Baxley
       12-00022E-21                                           2021368__
    1                        A bill to be entitled                      
    2         An act relating to an elder-focused dispute resolution
    3         process; creating s. 44.407, F.S.; providing
    4         legislative findings; defining terms; authorizing the
    5         courts to appoint an eldercaring coordinator and refer
    6         certain parties and elders to eldercaring
    7         coordination; prohibiting the courts from referring
    8         certain parties to eldercaring coordination without
    9         the consent of the elder and other parties to the
   10         action; specifying the duration of eldercaring
   11         coordinator appointments; requiring the courts to
   12         conduct intermittent review hearings regarding the
   13         conclusion or extension of such appointments;
   14         providing qualifications and disqualifications for
   15         eldercaring coordinators; providing for the removal
   16         and suspension of authority of certain eldercaring
   17         coordinators; requiring that notice of hearing on
   18         removal of a coordinator be timely served; authorizing
   19         the courts to award certain fees and costs under
   20         certain circumstances; requiring the court to appoint
   21         successor eldercaring coordinators under certain
   22         circumstances; authorizing the courts to make certain
   23         determinations based on the fees and costs of
   24         eldercaring coordination; providing that certain
   25         communications between the parties and eldercaring
   26         coordinators are confidential; providing exceptions to
   27         confidentiality; providing requirements for emergency
   28         reporting to courts under certain circumstances;
   29         providing immunity from liability for certain parties
   30         under specified circumstances; requiring the Florida
   31         Supreme Court to establish certain minimum standards
   32         and procedures for eldercaring coordinators; providing
   33         an effective date.
   35  Be It Enacted by the Legislature of the State of Florida:
   37         Section 1. Section 44.407, Florida Statutes, is created to
   38  read:
   39         44.407Elder-focused dispute resolution process.—
   40         (1)LEGISLATIVE FINDINGS.—The Legislature finds that:
   41         (a)Denying an elder a voice in decisions regarding himself
   42  or herself may negatively affect the elder’s health and well
   43  being, as well as deprive the elder of his or her legal rights.
   44  Even if an elder is losing capacity to make major decisions for
   45  himself or herself, the elder is still entitled to the dignity
   46  of having his or her voice heard.
   47         (b)As an alternative to proceedings in court, it is in the
   48  best interest of an elder, their family members, and legally
   49  recognized decisionmakers to have access to a nonadversarial
   50  process to resolve disputes relating to an elder which focuses
   51  on the elder’s wants, needs, and best interests. Such a process
   52  will protect and preserve the elder’s exercisable rights.
   53         (c)By recognizing that every elder, including those whose
   54  capacity is being questioned, has unique needs, interests, and
   55  differing abilities, the Legislature intends for this section to
   56  promote the public welfare by establishing a unique dispute
   57  resolution option to complement and enhance, not replace, other
   58  services, such as the provision of legal information or legal
   59  representation; financial advice; individual or family therapy;
   60  medical, psychological, or psychiatric evaluation; or mediation,
   61  specifically for issues related to the care and needs of elders.
   62  The Legislature intends that this section be liberally construed
   63  to accomplish these goals.
   64         (2)DEFINITIONS.—As used in this section, the term:
   65         (a)“Action” means a proceeding in which a party sought or
   66  seeks a judgment or an order from the court to:
   67         1.Determine if someone is or is not incapacitated pursuant
   68  to s. 744.331.
   69         2.Appoint or remove a guardian.
   70         3.Undertake an investigation pursuant to s. 415.104.
   71         4.Audit an annual guardianship report.
   72         5.Review a proxy’s decision pursuant to s. 765.105.
   73         6.Appoint a guardian advocate pursuant to s. 393.12.
   74         7.Enter an injunction for the protection of an elder under
   75  s. 825.1035.
   76         8.Follow up on a complaint made to the Office of Public
   77  and Professional Guardians pursuant to s. 744.2004.
   78         9.Address advice received by the court from the clerk of
   79  the court pursuant to s. 744.368(5).
   80         10.At the discretion of the presiding judge, address other
   81  matters pending before the court which involve the care or
   82  safety of an elder or the security of an elder’s property.
   83         (b)“Elder” means a person 60 years of age or older who is
   84  alleged to be suffering from the infirmities of aging as
   85  manifested by a physical, a mental, or an emotional dysfunction
   86  to the extent that the elder’s ability to provide adequately for
   87  the protection or care of his or her own person or property is
   88  impaired.
   89         (c)“Eldercaring coordination” means an elder-focused
   90  dispute resolution process during which an eldercaring
   91  coordinator assists an elder, legally authorized decisionmakers,
   92  and others who participate by court order or by invitation of
   93  the eldercaring coordinator, in resolving disputes regarding the
   94  care and safety of an elder by:
   95         1.Facilitating more effective communication and
   96  negotiation and the development of problem-solving skills.
   97         2.Providing education about eldercare resources.
   98         3.Facilitating the creation, modification, or
   99  implementation of an eldercaring plan and reassessing it as
  100  necessary to reach a resolution of ongoing disputes concerning
  101  the care and safety of the elder.
  102         4.Making recommendations for the resolution of disputes
  103  concerning the care and safety of the elder.
  104         5.With the prior approval of the parties to an action or
  105  of the court, making limited decisions within the scope of the
  106  court’s order of referral.
  107         (d)“Eldercaring coordination communication” means an oral
  108  or a written statement or nonverbal conduct intended to make an
  109  assertion by or to an eldercaring coordinator or individuals
  110  involved in eldercaring coordination made during an eldercaring
  111  coordination activity, or before the activity if made in
  112  furtherance of eldercaring coordination. The term does not
  113  include statements made during eldercaring coordination which
  114  involve the commission of a crime, the intent to commit a crime,
  115  or ongoing abuse, exploitation, or neglect of a child or
  116  vulnerable adult.
  117         (e)“Eldercaring coordinator” means an impartial third
  118  person who is appointed by the court or designated by the
  119  parties and who meets the requirements of subsection (5). The
  120  role of the eldercaring coordinator is to assist parties through
  121  eldercaring coordination in a manner that respects the elder’s
  122  need for autonomy and safety.
  123         (f)“Eldercaring plan” means a continually reassessed plan
  124  for the items, tasks, or responsibilities needed to provide for
  125  the care and safety of an elder which is modified throughout
  126  eldercaring coordination to meet the changing needs of the elder
  127  and which takes into consideration the preferences and wishes of
  128  the elder. The plan is not a legally enforceable document, but
  129  is meant for use by the parties and participants.
  130         (g)“Good cause” means a finding that the eldercaring
  131  coordinator:
  132         1.Is not fulfilling the duties and obligations of the
  133  position;
  134         2.Has failed to comply with any order of the court, unless
  135  the order has been superseded on appeal;
  136         3.Has conflicting or adverse interests that affect his or
  137  her impartiality;
  138         4.Has engaged in circumstances that compromise the
  139  integrity of eldercaring coordination; or
  140         5.Has had a disqualifying event occur.
  142  The term does not include a party’s disagreement with the
  143  eldercaring coordinator’s methods or procedures.
  144         (h)“Legally authorized decisionmaker” means an individual
  145  designated, either by the elder or by the court, pursuant to
  146  chapter 709, chapter 744, chapter 747, or chapter 765 who has
  147  the authority to make specific decisions on behalf of the elder
  148  who is the subject of an action.
  149         (i)“Participant” means an individual who joins eldercaring
  150  coordination by invitation of or with the consent of the
  151  eldercaring coordinator but who has not filed a pleading in the
  152  action from which the case was referred to eldercaring
  153  coordination.
  154         (j)“Party” includes the elder who is the subject of an
  155  action and any other individual over whom the court has
  156  jurisdiction.
  157         (3)REFERRAL.—
  158         (a)Upon agreement of the parties to the action, the
  159  court’s own motion, or the motion of a party to the action, the
  160  court may appoint an eldercaring coordinator and refer the
  161  parties to eldercaring coordination to assist in the resolution
  162  of disputes concerning the care and safety of the elder who is
  163  the subject of an action.
  164         (b)The court may not refer a party who has a history of
  165  domestic violence or exploitation of an elderly person to
  166  eldercaring coordination unless the elder and other parties in
  167  the action consent to such referral.
  168         1.The court shall offer each party an opportunity to
  169  consult with an attorney or a domestic violence advocate before
  170  accepting consent to such referral. The court shall determine
  171  whether each party has given his or her consent freely and
  172  voluntarily.
  173         2.The court shall consider whether a party has committed
  174  an act of exploitation as defined in s. 415.102(8) or s.
  175  825.103(1) or domestic violence as defined in s. 741.28 against
  176  another party or any member of another party’s family; engaged
  177  in a pattern of behaviors that exert power and control over
  178  another party and that may compromise another party’s ability to
  179  negotiate a fair result; or engaged in behavior that leads
  180  another party to have reasonable cause to believe that he or she
  181  is in imminent danger of becoming a victim of domestic violence.
  182  The court shall consider and evaluate all relevant factors,
  183  including, but not limited to, the factors specified in s.
  184  741.30(6)(b).
  185         3.If a party has a history of domestic violence or
  186  exploitation of an elderly person, the court must order
  187  safeguards to protect the safety of the participants and the
  188  elder and the elder’s property, including, but not limited to,
  189  adherence to all provisions of an injunction for protection or
  190  conditions of bail, probation, or a sentence arising from
  191  criminal proceedings.
  192         (4)COURT APPOINTMENT.—A court appointment of an
  193  eldercaring coordinator is for a term of up to 2 years and the
  194  court shall conduct review hearings intermittently to determine
  195  whether the term should be concluded or extended. Appointments
  196  conclude upon expiration of the term or upon discharge by the
  197  court, whichever occurs earlier.
  199         (a)The court shall appoint qualified eldercaring
  200  coordinators who meet the requirements of each of the following:
  201         1.Meet one of the following professional requirements:
  202         a.Be licensed as a mental health professional under
  203  chapter 491 and hold at least a master’s degree in the
  204  professional field of practice;
  205         b.Be licensed as a psychologist under chapter 490;
  206         c.Be licensed as a physician under chapter 458;
  207         d.Be licensed as a nurse under chapter 464 and hold at
  208  least a master’s degree;
  209         e.Be certified by the Florida Supreme Court as a family
  210  mediator and hold at least a master’s degree;
  211         f.Be a member in good standing of The Florida Bar; or
  212         g.Be a professional guardian as defined in s. 744.102(17)
  213  and hold at least a master’s degree.
  214         2.Complete all of the following:
  215         a.Three years of post-licensure or post-certification
  216  practice;
  217         b.A family mediation training program certified by the
  218  Florida Supreme Court;
  219         c.An elder mediation training program that meets standards
  220  approved and adopted by the Florida Supreme Court. If the
  221  Florida Supreme Court has not yet adopted such standards, the
  222  standards for elder mediation training approved and adopted by
  223  the Association for Conflict Resolution apply; and
  224         d.Eldercaring coordinator training. The training must
  225  total at least 28 hours and must include eldercaring
  226  coordination; elder, guardianship, and incapacity law and
  227  procedures and less restrictive alternatives to guardianship as
  228  it pertains to eldercaring coordination; at least 4 hours on the
  229  implications of elder abuse, neglect, and exploitation and other
  230  safety issues in eldercaring coordination; the elder’s role
  231  within eldercaring coordination; family dynamics related to
  232  eldercaring coordination; eldercaring coordination skills and
  233  techniques; multicultural competence and its use in eldercaring
  234  coordination; at least 2 hours of ethical considerations
  235  pertaining to eldercaring coordination; use of technology within
  236  eldercaring coordination; and court-specific eldercaring
  237  coordination procedures.
  238         3.Successfully pass a Level 2 background screening as
  239  provided in s. 435.04(2) and (3) or be exempt from
  240  disqualification under s. 435.07.
  241         4.Have not been a respondent in a final order granting an
  242  injunction for protection against domestic, dating, sexual, or
  243  repeat violence or stalking or exploitation of an elder or a
  244  disabled person.
  245         5.Meet any additional qualifications the court may require
  246  to address issues specific to the parties.
  247         (b)A qualified eldercaring coordinator must be in good
  248  standing or in clear and active status with all professional
  249  licensing authorities or certification boards.
  252         (a)An eldercaring coordinator must resign and immediately
  253  report to the court if he or she no longer meets the minimum
  254  qualifications or if any of the disqualifying circumstances
  255  occurs.
  256         (b)The court shall remove an eldercaring coordinator upon
  257  the eldercaring coordinator’s resignation or disqualification or
  258  a finding of good cause shown based on the court’s own motion or
  259  a party’s motion.
  260         (c)Upon the court’s own motion or upon a party’s motion,
  261  the court may suspend the authority of an eldercaring
  262  coordinator pending a hearing on the motion for removal. Notice
  263  of hearing on removal must be timely served on the eldercaring
  264  coordinator and all parties.
  265         (d)If a motion was made in bad faith, a court may, in
  266  addition to any other remedy authorized by law, award reasonable
  267  attorney fees and costs to a party or an eldercaring coordinator
  268  who successfully challenges a motion for removal.
  269         (7)SUCCESSOR ELDERCARING COORDINATOR.—If an eldercaring
  270  coordinator resigns, is removed, or is suspended from an
  271  appointment, the court shall appoint a successor qualified
  272  eldercaring coordinator who is agreed to by all parties or, if
  273  the parties do not reach agreement on a successor, another
  274  qualified eldercaring coordinator to serve for the remainder of
  275  the original term.
  276         (8)FEES AND COSTS.—The court may not order the parties to
  277  eldercaring coordination without their consent unless the court
  278  determines that the parties have the financial ability to pay
  279  the eldercaring coordination fees and costs. The court shall
  280  determine the allocation among the parties of fees and costs for
  281  eldercaring coordination and may make an unequal allocation
  282  based on the financial circumstances of each party, including
  283  the elder.
  284         (a)A party who is asserting that he or she is unable to
  285  pay the eldercaring coordination fees and costs must complete a
  286  financial affidavit form approved by the presiding court. The
  287  court shall consider the party’s financial circumstances,
  288  including income; assets; liabilities; financial obligations;
  289  and resources, including, but not limited to, whether the party
  290  can receive or is receiving trust benefits, whether the party is
  291  represented by and paying a lawyer, and whether paying the fees
  292  and costs of eldercaring coordination would create a substantial
  293  hardship.
  294         (b)If a court finds that a party is indigent based upon
  295  the criteria prescribed in s. 57.082, the court may not order
  296  the party to eldercaring coordination unless funds are available
  297  to pay the indigent party’s allocated portion of the eldercaring
  298  coordination fees and costs, which may include funds provided
  299  for that purpose by one or more nonindigent parties who consent
  300  to paying such fees and costs, or unless insurance coverage or
  301  reduced or pro bono services are available to pay all or a
  302  portion of such fees and costs. If financial assistance, such as
  303  health insurance or eldercaring coordination grants, is
  304  available, such assistance must be taken into consideration by
  305  the court in determining the financial abilities of the parties.
  306         (9)CONFIDENTIALITY.—
  307         (a)Except as otherwise provided in this section, all
  308  communications made by, between, or among any parties,
  309  participants, or eldercaring coordinator during eldercaring
  310  coordination shall be kept confidential.
  311         (b)The eldercaring coordinator, participants, and each
  312  party designated in the order appointing the eldercaring
  313  coordinator may not testify or otherwise offer evidence about
  314  communications made by, between, or among the parties,
  315  participants, and the eldercaring coordinator during eldercaring
  316  coordination, unless one of the following applies:
  317         1.Such communications are necessary to identify,
  318  authenticate, confirm, or deny a written and signed agreement
  319  entered into by the parties during eldercaring coordination.
  320         2.Such communications are necessary to identify an issue
  321  for resolution by the court without otherwise disclosing
  322  communications made by any party or the eldercaring coordinator.
  323         3.Such communications are limited to the subject of a
  324  party’s compliance with the order of referral to eldercaring
  325  coordination, orders for psychological evaluation, court orders
  326  or health care provider recommendations for counseling, or court
  327  orders for substance abuse testing or treatment.
  328         4.The communications are necessary to determine the
  329  qualifications of an eldercaring coordinator or to determine the
  330  immunity and liability of an eldercaring coordinator who has
  331  acted in bad faith or with malicious purpose or in a manner
  332  exhibiting wanton and willful disregard for the rights, safety,
  333  or property of the parties pursuant to subsection (11).
  334         5.The parties agree that the communications be disclosed.
  335         6.The communications are necessary to protect any person
  336  from future acts that would constitute domestic violence under
  337  chapter 741; child abuse, neglect, or abandonment under chapter
  338  39; or abuse, neglect, or exploitation of an elderly or disabled
  339  adult under chapter 415 or chapter 825, or are necessary in an
  340  investigation conducted under s. 744.2004 or a review conducted
  341  under s. 744.368(5).
  342         7.The communications are offered to report, prove, or
  343  disprove professional misconduct alleged to have occurred during
  344  eldercaring coordination, solely for the internal use of the
  345  body conducting the investigation of such misconduct.
  346         8.The communications are offered to report, prove, or
  347  disprove professional malpractice alleged to have occurred
  348  during eldercaring coordination, solely for the professional
  349  malpractice proceeding.
  350         9.The communications were willfully used to plan a crime,
  351  commit or attempt to commit a crime, conceal ongoing criminal
  352  activity, or threaten violence.
  353         (c)Notwithstanding paragraphs (a) and (b), confidentiality
  354  or privilege does not attach to a signed written agreement
  355  reached during eldercaring coordination, unless the parties
  356  agree otherwise, or to any eldercaring coordination
  357  communication:
  358         1.For which the confidentiality or privilege against
  359  disclosure has been waived by all parties;
  360         2.That is willfully used to plan a crime, commit or
  361  attempt to commit a crime, conceal ongoing criminal activity, or
  362  threaten violence; or
  363         3.That requires a mandatory report pursuant to chapter 39
  364  or chapter 415 solely for the purpose of making the mandatory
  365  report to the entity requiring the report.
  367         (a)An eldercaring coordinator must immediately inform the
  368  court by affidavit or verified report, without notice to the
  369  parties, if:
  370         1.The eldercaring coordinator has or will be making a
  371  report pursuant to chapter 39 or chapter 415; or
  372         2.A party, including someone acting on a party’s behalf,
  373  is threatening or is believed to be planning to commit the
  374  offense of kidnapping upon an elder as defined in s. 787.01, or
  375  wrongfully removes or is removing the elder from the
  376  jurisdiction of the court without prior court approval or
  377  compliance with the requirements of s. 744.1098. If the
  378  eldercaring coordinator suspects that a party or family member
  379  has relocated an elder within this state to protect the elder
  380  from a domestic violence situation, the eldercaring coordinator
  381  may not disclose the location of the elder unless required by
  382  court order.
  383         (b)An eldercaring coordinator shall immediately inform the
  384  court by affidavit or verified report and serve a copy of such
  385  affidavit or report on each party upon learning that a party is
  386  the subject of a final order or injunction of protection against
  387  domestic violence or exploitation of an elderly person or has
  388  been arrested for an act of domestic violence or exploitation of
  389  an elderly person.
  391         (a)A person who is appointed or employed to assist the
  392  body designated to perform duties relating to disciplinary
  393  proceedings involving eldercaring coordinators has absolute
  394  immunity from liability arising from the performance of his or
  395  her duties while acting within the scope of his or her appointed
  396  functions or duties of employment.
  397         (b)An eldercaring coordinator who is appointed by the
  398  court is not liable for civil damages for any act or omission
  399  within the scope of his or her duties under an order of referral
  400  unless such person acted in bad faith or with malicious purpose
  401  or in a manner exhibiting wanton and willful disregard for the
  402  rights, safety, or property of the parties.
  403         (12)MINIMUM STANDARDS AND PROCEDURES.—The Florida Supreme
  404  Court shall establish minimum standards and procedures for the
  405  qualification, ethical conduct, discipline, and training and
  406  education of eldercaring coordinators who serve under this
  407  section. The Florida Supreme Court may appoint or employ such
  408  personnel as are necessary to assist the court in exercising its
  409  powers and performing its duties under this section.
  410         Section 2. This act shall take effect July 1, 2021.